Torture Report: America Conducts a Moral Reckoning. Next, Moral Repair?

Mr. Obama, in ruling out prosecution for torture, may have thought he spared us bother, but actually he did us harm. By casting accountability into limbo, he makes possible government-sponsored torture in the future and prevents America from recovering the thing most precious: our good name.
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Who knew moral reckoning would take place so quietly, yet so profoundly?

With the release two weeks ago of the long-awaited torture report by the Senate Select Committee on Intelligence---499 pages documenting in nauseating detail what was done in America's name during the Bush era to detainees in military prisons in Iraq, Afghanistan, Guantanamo, and in "black sites" around the world---one might have expected a final showdown, a noisy conflagration of final arguments pro and con on the utility versus morality of torture, arguing toward a final judgment.

But what's so remarkable is this: So damning and repellant are the report's details---of "rectal feeding" (exactly what it sounds like), "walling" (slamming a detainee's head against a wall), chaining a naked detainee to the frozen floor and letting him die of hypothermia, to cite a few of the "enhanced interrogation techniques" used (and reduced to the weasel acronym, E.I.T.)---that the American public, in response, is inwardly acknowledging the moral crime and, with bowed head, reckoning as one:

No. No. No. This is not what America stands for, not the America I love. We can never, ever torture again.

Otherwise, how explain how relatively quiet torture's defenders in Congress have become? While Senate Republican majority leader Mitch McConnell tried to downplay the torture report as old news, as if to say, "Nothing new here, folks, move along," one scans the massive news reporting (here, here, here, here, and here) and thinks: No, Senator, there are new facts in the report---and they're far worse than we knew before. Brought together in one place, they pack a punch. I feel sick.

Similar silence surrounds the GOP's likely presidential contenders. The title of a New York Times article states it: "Torture report puts presidential hopefuls in quiet mode." After all, who wants to be quoted defending rectal feeding? "No comment" is the official comment from Mitt Romney, Chris Christie, Jeb Bush. One thinks: Jeb will sooner or later have to reckon with brother George's torture program. Good!

Even the current CIA director, John Brennan, in a rare press conference, seemed to walk his agency back from the more "abhorrent" practices---and the pervasive lying about them to superiors---committed by some agents under previous directors, while also defending the agency as an institution. Brennan's comment causing controversy---that it is "unknowable" if actionable information extracted from detainees was the result of E.I.T.s or could have been gotten with more humane rapport-building---leaves one with the impression, if you parse his subtext: This CIA director doesn't want to be in the torture business anymore.

Making the noisiest counter against this grand moral reckoning is ex-Vice President Dick Cheney (also here). As if on Pavlovian cue, Cheney declares the torture report a "crock," denies torture occurred, defends E.I.T.'s (including rectal feeding), insists all received legal clearance from Justice, and, if any doubt remained, clarifies that President Bush himself approved taking America to what Cheney called "the dark side." Aside from his performance's comic aspect---captured by a New Yorker wag's headline, "Cheney to lead torture-pride parade"---this also is clear: Cheney is caught up, trapped, in self-justification of his White House tenure. He has to, but really, he should stop. (Good Lord, was this man really once our Vice President?)

And the reckoning goes on. Torture defenders insist torture "worked," a claim the Senate report roundly denies, with reams of evidence. But one reckons: Murder "works" too---if you're a criminal enterprise. Which America is not, at least not yet. No doubt our torturing "works" to recruit terrorists and turn off our allies.

Others, like Republican Congressman Mike Rogers, warn that the onus will be on the report's supporters for any "flag-draped coffins" shipped home of Americans killed abroad as payback to the report's "reckless" release, an outrageous claim completely missing the point: Really, Congressman, you should have thought of that before you went all-in on torture. Torture---not the report---is the problem. Your warning only underscores the fact that something evil did happen. It is to weep: Once upon a time America was a moral beacon, standing for human dignity, human rights. We used to be the good guys, not the brutes. "Reckless"? Reckless is torturing without considering the jeopardy it posed to our own troops if they were captured (see here).

And other torturists hark back to "context," recalling a fear-filled Washington in the aftermath of 9/11. Ideally, decision-makers would study the report and come away with the insight occurring to many a lay reader: Mark well what fear does to decision-making: It can lead to crimes against humanity. Besides, why is the superpower so fear-filled? At long last, let us quell the hysteria, get a grip, get statesmanlike.

On the bright---moral reckoning---side, perhaps the most eloquent voice speaking against torture and in defense of the Senate report's release is that of Republican Senator John McCain. Statesmanlike and humane, Sen. McCain in a speech on the Senate floor made his points powerfully. Speaking as one who endured torture in Vietnam, he said, "I know from personal experience that the abuse of prisoners will produce more bad than good intelligence," adding, "I think it is an insult to the many intelligence officers who acquired good intelligence without hurting or degrading prisoners to assert we can't win this war without such methods." And when he spoke of American values, he soared: "I have often said....this question isn't about our enemies; it's about us. It's about who we were, who we are and who we aspire to be. It's about how we represent ourselves to the world." He continued:

"We have made our way in this often dangerous and cruel world, not by just strictly pursuing our geopolitical interests, but by exemplifying our political values, and influencing other nations to embrace them. When we fight to defend our security we fight also for an idea, not for a tribe or a twisted interpretation of an ancient religion or for a king, but for an idea that all men are endowed by the Creator with inalienable rights."

McCain ended by invoking the "sacred ideal" governing relations among nations: "our belief that all people, even captured enemies, possess basic human rights, which are protected by international conventions that the U.S. not only joined, but for the most part authored." Stirring words. [Video of speech here, text here.]

Ah, moral reckoning. For those of us protesting U.S.-sponsored torture during the Bush years, it's a beautiful moment, as was President Obama's outlawing torture his first full day in office. For me, it was Abu Ghraib in 2004 that spurred action, with a letter to The New York Times: "On behalf of all Americans who feel acute shame, as I do, at the actions of a benighted few in our armed forces, President Bush should issue an apology to the Arab world. A great nation acknowledges its errors." We now know culpability ran all the way up the chain of command. For now, though, we rejoice that a great nation is acknowledging its error.

And note well, World: America is conducting its own moral reckoning on torture. This is the America I love, the America that can admit a mistake and fix it. Time, conscience, and evidence allow for moral reckoning. For providing the hard-to-bear but invaluable evidence, thanks go to Democratic Senator Dianne Feinstein, the intelligence committee chair, for releasing the report and trusting the American people to reckon with it. Even with growing numbers of Americans approving torture, according to polls (also here), this reckoning trumps with its moral power.

Let us also reckon with the real heroes of the C.I.A., not the ones Cheney touts as "patriots" who tortured to a fare-thee-well, but those conscientious agents (in the FBI too) who showed human emotion at the injury the torturers were inflicting, who blew the whistle on these nefarious operations and tried to stop the machine, who tried to save their agency's soul as well as their own. We wouldn't know much about these heroes, but for the Senate report; their presence limned in its pages is the only cheering thing in this otherwise haunting document. These heroes harken to their counterparts in World War II, when U.S. interrogators were instructed to abide by the Geneva Conventions on treatment of prisoners (here and here)---which Conventions the Bush team deemed "quaint." O what a falling off was there.....

Now, to the next step: repair. Moral reckoning is only the first step to recovering America's moral stature in the world. Repair is required. Torture was committed by the U.S., as the Senate report makes clear; torture is a crime and is, during war, a war crime; therefore, official steps are needed both to address the crime and forestall future administrations from resorting to it. Making this newly necessary is CIA director Brennan's demurral when asked about recommending restrictions on future CIA directors debarring torture: "I defer to the policy makers of future times."

What are the options? Not many, since President Obama already took off the table the most potent tool: prosecution of Bush officials for war crimes. Stating his wish not to "re-litigate the past, " Mr. Obama aligned himself with our cultural inclination to put things behind us and move forward, but that works only if the thing put behind us is not a crime, or a wound that, untended, festers and infects the body politic. What is to be said of a constitutional law professor who's also President of the United States who allows an alleged crime to go, not just unpunished, but unexamined....?

The implications of not prosecuting torture are vast, as legal scholar Karen J. Greenberg of Fordham University School of Law writes:

"Not punishing those who created and applied the policy was clearly a signal that no acts committed as part of the war on terror and under the rubric of national security would ever be prosecuted. This invitation to some future presidency to revive the torture program. Nor have its defenders been silenced. If torture had been considered truly illegal, and people had been held accountable, then perhaps assurances against its recurrence would be believable. Instead, each and every time they are given the chance, leading figures from the Bush administration defend the practice."

Greenberg also writes that not prosecuting torture creates the cultural narrative that spawns films like Zero Dark Thirty which present torture without critique or antagonists (my critique here).

How to make up for Mr. Obama's lack of prosecutorial action? Some thoughts:

Pardons. As proposed by the American Civil Liberties Union's executive director, Anthony D. Romero, Mr. Obama might unilaterally pardon, without trial proceedings, the Bush officials who conducted the torture program. Formerly opposed to the idea, preferring instead prosecution or a truth-and-reconciliation panel, Mr. Romero now sees a pardon's utility. Distinguishing between tacit pardon (simply letting a matter go) and explicit pardon, formally declared, Romero writes:

"If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted."

But Eugene R. Fidell, who teaches at Yale Law School, takes the opposite view. In an email he writes: "I don't agree that a pardon carries a warning for the future. If anything, it suggests that future torture will also be forgiven." Referring to Dick Cheney, he writes: "Issuing pardons---and Mr. Cheney would refuse one because he doesn't think he's done anything wrong much less illegal---is a cheap way out and only muddies the moral and legal water." Again about Cheney, he writes: "A person who displays no contrition does not deserve a pardon. Giving him one is worse than an empty gesture: It debases the pardon process itself, thus adding to the damage done to our system of government."

Department of Justice action. One would like to look to the Justice Department for justice. As Fidell notes, "Serious crimes have been committed and should be prosecuted, and in a perfect universe President Obama and his Department of Justice would have stood up to the C.I.A." But like most experts, Fidell does not see any criminal prosecution in the cards because, again, the President ruled it out, and in any event the statute of limitations on torture has expired: "Sadly, that train may have left the station." (Prosecution remains possible in cases where the torture victim died.) Fidell notes that, instead of prosecution, "public opprobrium" of torture---such as that being expressed now, in the wake of the Senate torture report---may have to serve as the main deterrent going forward.

However, just days ago, John Yoo, who as an attorney in Bush's Justice Department wrote the memos condoning E.I.T.'s, now says perhaps the CIA went too far, by engaging in water-boarding, rectal feeding, sleep deprivation. As Yoo told CNN's Fareed Zakaria:

"If these things happened as they're described in the report....they were not supposed to be done. And the people who did those are at risk legally because they were acting outside their orders."

Does this mean Bush officials and Bush-era CIA personnel could still be prosecuted? Perhaps. Certainly Loretta Lynch, Mr. Obama's nominee to succeed Eric Holder as Attorney General, should be asked this explicitly. And certainly all AG nominees to come should be grilled on the general question: If a crime takes place---say, torture---how can those authorizing the crime be given a pass? In all instances, it will likely be up to Democratic senators to force a pledge from AG nominees that the crime of torture will be prosecuted.

Congressional action. "Congressional action" sounds oxymoronic, given that body's dysfunction, but there is a step Congress could take. We already criminalize torture, and as Eugene Fidell notes, Congress cannot force the Executive Branch to prosecute particular cases, nor can it constitutionally extend a statute of limitations that has expired.

But, to forestall torture in the future: Fidell points to human rights advocate and Rutgers law professor Penny M. Venetis, who writes recently that when, in 1994, the U.S. ratified the U.N. Convention Against Torture, that same year "Congress passed watered-down legislation, the Federal Torture Statute, that severely altered the CAT and its reach." Venetis emphasizes: "This is significant. By failing to implement all provisions of the CAT domestically"---into our criminal code and legal infrastructure---"Congress left open the questions of whether torture was illegal." During the Bush years, the "Torture Memos" from the above-cited John Yoo interpreted this watered-down Federal Torture Statute in ways that "gave the green light for the U.S. to torture." Venetis notes that a "remorseless President Bush stated in his 2010 memoirs that when the CIA asked permission to torture, he responded 'Damn right.' And other Republican leaders including John Cornyn, Mitt Romney and Michelle Bachman have made similar statements." Therefore, Venetis concludes:

"Congress' newly-released horrifying report exposing the breadth of the U.S.'s use of torture shows that it is necessary to enact legislation to fully incorporate human rights treaties [my italics], as they were negotiated and drafted in collaboration with other nations, into U.S. law."

Who better to introduce this legislation than Senator John McCain, distinguished moral reckoner on torture, with the blessing of President Barack Obama, who forbade torture first thing in his presidency? This will take courage from both men; McCain not only will meet fierce opposition from fellow Republicans in a Republican-controlled Senate, but, Venetis notes, he "sided with the Bush administration and voted not to require CIA interrogation methods to comply with the CAT." What symmetry: the two foes of the '08 presidential race, joining forces in common cause.

In future, Presidential contenders must be asked explicitly---by the conscientious public---their stand on torture (no more "No comment"), as well as their stand on prosecuting such crimes. And if they reserve the right to go again to "the dark side," could they stand another dark and ugly Senate report? As time goes by without a final accounting, torture will become "just another partisan issue," with Republicans for and Democrats against, predicts Darius Rejali, political science professor at Reed College, as cited by The New Yorker's Jane Mayer. Absent accountability for mistakes made, Mayer writes, "another reversion to torture may be difficult to prevent." As Rejali warns, "Nothing predicts future behavior as much as past impunity."

In sum, one has to reckon: Mr. Obama, in ruling out prosecution for torture, may have thought he spared us bother, but actually he did us harm. By casting accountability into limbo, he makes possible government-sponsored torture in the future and prevents America from recovering the thing most precious: our good name. At the least, given his new presidential muscle---securing a climate change accord with China, reopening diplomatic relations with Cuba---Mr. Obama might try persuading this "exceptional" nation to rededicate itself to the proposition that international treaties and conventions, including on torture, are a good and proper thing, which exceptionalism should not flout, as we have in recent history, but salute.

For now, Democratic Senator Mark Udall demands a "purge" of CIA leadership, including Mr. Brennan: "The CIA has lied to its overseers and the public, destroyed....evidence, spied on the Senate....and lied about torture and the results of torture.... And no one has been held to account." Urging "moral leadership" from Mr. Obama, Udall declares:

"If there is no moral leadership from the White House helping the public understand that the CIA's torture program wasn't necessary and didn't save lives or disrupt terrorist plots, then what's to stop the next White House and CIA director from supporting torture?"

Indeed! It would be a shame if outside bodies took that moral lead and did the repair work America should do internally. It remains to be seen what other countries will do about the apparent crimes of the Bush administration revealed in the Senate torture report. Another country could sue the U.S. in an international court. The U.N. special rapporteur for human rights and counter-terrorism, Ben Emmerson, now calls for the prosecution of Bush-era torture crimes. Citing the report, he does not spare the pressure:

"As a matter of international law, the U.S. is legally obliged to bring those responsible to justice.... The U.S. Attorney General is under a legal duty to bring criminal charges against those responsible.... International law prohibits granting immunity to public officials who have engaged in acts of torture.... The fact that the policies revealed in this report were authorized at a high level within the U.S. government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability."

Meanwhile, America's moral reckoning on torture goes forth, as a great nation acknowledges its error. Also meanwhile, Americans who have not read the Senate report should at least scan the main findings, and reckon with them. Girded with that reckoning, would that we could---somehow---do our own repairs to our battered ship of state and recover our precious moral stature ourselves.

Carla Seaquist has written frequently on torture. Her 2009 book of commentary is titled "Manufacturing Hope: Post-9/11 Notes on Politics, Culture, Torture, and the American Character." Her forthcoming book of commentary is titled "Can America Save Itself from Decline?: Politics, Culture, Morality." Also a playwright, she published "Two Plays of Life and Death," which include "Who Cares?: The Washington-Sarajevo Talks" and "Kate and Kafka," and is at work on a play titled "Prodigal."

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