Holder: Torture Investigation Adieu

The article below By William Fisher originally appeared in the pages of Prism Magazine.


When President Obama said of the issue of the CIA torturing our prisoners that he’d rather go forward than backward, many of us saw this decision coming. Others were hopeful that justice would rise above politics. We wanted those who designed, administered and implemented torture to be held accountable in the only way that matters in our rule-of-law country.

We lost.

“The End,” as described by Scott Horton in Harper’s Magazine:

“Mr. Holder had already ruled out any charges related to the use of waterboarding and other methods that most human rights experts consider to be torture. His announcement closes a contentious three-year investigation by the Justice Department and brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners in the aftermath of the terrorist attacks of Sept. 11, 2001. The closing of the two cases means that the Obama administration’s limited effort to scrutinize the counterterrorism programs carried out under President George W. Bush has come to an end.”

What this decision means is that, unless it is undone at some point, the United States will hold no one accountable for the stain of shame that will forever more blemish the reputation of the country that has held itself out as the gold standard for justice under law. What it means is that we will face the same kinds of problems when the next war rolls around.

I’m writing this over Labor Day weekend, but I’m far from the only one who’s livid over this decision.

One of Prism’s sources struck a philosophical tone. He is Col. Morris Davis (USAF Ret.) He was appointed to serve as the third Chief Prosecutor in the Guantanamo military commissions but resigned as a protest to the military commissions. He retired from active duty in October 2008, and now teaches law. Here’s what he told us:

“The decision was disappointing, but frankly it came as no surprise. We’re always slow to hold up the mirror to see the warts that detract from our self-image as the most exceptional people on the planet. Slavery, Jim Crow laws, internment of Japanese-Americans, forced sterilization of those labeled ‘defective’, gender discrimination: it’s often many, many years before we’re able to acknowledge a wrong. In the meantime, those who turned us into a torture state are held up as heroes and rewarded – they write books and appear on television, and they hold top positions on government boards, in major corporations, in academia, and even the federal judiciary – while most of us who spoke out against torture are persecuted and, in some cases, prosecuted.”

He added, “It’s a bizarre twist that in America talking about torture, but not committing torture, can get you sent to prison. It’s easy to get discouraged, and the current decision to keep our head buried in the sand awhile longer adds to the discouragement, but I reminded myself every day what Winston Churchill said in 1941: ‘Never, never, never give in.’ We have to keep lifting up the mirror until people look and see the ugly reflection.”

Anger more than disappointment is evident in the comment of Jameel Jaffer, ACLU deputy legal director, who told Prism, “That the Justice Department will hold no one accountable for the killing of prisoners in CIA custody is nothing short of a scandal. The Justice Department has declined to bring charges against the officials who authorized torture, the lawyers who sought to legitimate it, and the interrogators who used it. It has successfully shut down every legal suit meant to hold officials civilly liable.”

He added, “Continuing impunity threatens to undermine the universally recognized prohibition on torture and other abusive treatment and sends the dangerous signal to government officials that there will be no consequences for their use of torture and other cruelty. Today’s decision not to file charges against individuals who tortured prisoners to death is yet another entry in what is already a shameful record.”

Continuing impunity threatens to undermine the universally recognized prohibition on torture and other abusive treatment and sends the dangerous signal to government officials that there will be no consequences for their use of torture and other cruelty.

And this was the view expressed in the Huffington Post by Daphne Eviatar, senior counsel at Human Rights First:

“In his statement yesterday, [Attorney General] Holder said he’d declined to prosecute anyone in the CIA ‘because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt’. He didn’t explain what kind of evidence he’d judged not ‘admissible’. But certainly all CIA agents who’d participated in or witnessed the abuse of the two detainees whose deaths were being investigated would have similarly ‘had access to classified intelligence sources and methods’ that the government doesn’t want revealed.”



Eviatar noted that, in a 2006 report, Human Rights First “documented that up to 12 men had been tortured to death in U.S. custody since 2002. Reviewing documents we’ve received more recently through a Freedom of Information Act request to the government, it now appears that up to 19 of 247 deaths involved torture. In only six of those cases was anyone held criminally liable. According to military documents, many more detainees — we’ve counted 72 so far — are believed to have been murdered. While in some cases charges were brought, in many they were dropped or the perpetrators received only administrative sanctions.”

Then she reminded us that CIA Director “David Petraeus sent a statement to CIA employees assuring them that the matter has been put to rest. ‘As intelligence officers, our inclination, of course, is to look ahead to the challenges of the future rather than backwards at those of the past’.

She concluded with: “That may be the CIA’s inclination, but the agency is still obligated to investigate when its agents break the law. And surely the Justice Department has no excuse. Its role is always to investigate what happened in the past and to hold those responsible for crimes accountable. When it comes to the treatment of detainees in U.S. custody, many of whom were clearly tortured to death, all relevant branches of the U.S. government have fallen down on the job.”

Chip Pitts, former CEO of Amnesty USA and now a lecturer at Stanford and Oxford, weighed in with this:

“When those in power break the rules merely because they can, it inspires mistrust and derision instead of trust and confidence. The reverberations from this nauseating decision extend much farther than the Obama administration realizes, because (contrary to the arguments of its defenders) it cavalierly ignores the rule of law just as the Bush administration did – and on a subject (torture) and an area (legally required accountability) of universal import.”

Such “hypocritical and politically opportunistic decisions have systemic implications. Those systemic implications cannot be avoided or cloaked by the administration’s ludicrous claims of insufficient evidence in these well-documented extreme cases (in which not even one person has been held accountable for torture), or by this obviously self-interested precedent established in hopes of avoiding the administration’s own future accountability for assassination and other illegal acts.

Pitts added, “All of this is exquisitely ironic in light of the administration’s aggressive pursuit of the whistleblowers who’ve sought to shed light on such crimes. The implications for US foreign policy and for international law generally could not be clearer: Our country’s actions will be less effective and our calls for legal compliance more ridiculed, than before.”

And he concluded: “The trust reposed in those in power and in our legal and other institutions erodes further, whether from the perspective of those at home or abroad.

And greater play is given not only to torturers but more generally to similarly horrendous and illegal ongoing and future policies and to the coarse, violent, and uncivilized actions currently continuing to lead our nation in a downward spiral of dramatic relative decline.”
So there you have it. It’s over. As Glenn Greenwald wrote in The Guardian, “The Obama administration’s aggressive, full-scale whitewashing of the ‘war on terror’ crimes committed by Bush officials is now complete. Thursday, Attorney General Eric Holder announced the closing without charges of the only two cases under investigation relating to the US torture program: one that resulted in the 2002 death of an Afghan detainee at a secret CIA prison near Kabul, and the other the 2003 death of an Iraqi citizen while in CIA custody at Abu Ghraib. This decision, says the New York Times Friday, “eliminat[es] the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the CIA”.

This news was consigned to the Friday afternoon dump, and distributed during the Republican National Convention, so as to attract minimal media attention. By and large, our stenographic press corps obliged; few major publications carried this bombshell.

Romney was their dish of the day.

Well, the Romneys of the world will come and go. But the historic nature of this day – September 1st, 2012 — will be with us forever.
But perhaps there is one more slender chance left. The Center for Constitutional Rights (CCR) reminds us:

“Once again, the United States has shown it is committed to absolving itself of any responsibility for its crimes over the past decade. Today’s announcement belies U.S. claims that it can be trusted to hold accountable Americans who have perpetrated torture and other human rights abuses, and underscores the need for independent investigations elsewhere, such as the investigation underway in Spain, to continue. Impunity does not always cross borders.”