Commentary: Torture memos — Accountability everywhere but here?

The American Civil Liberties UnionAugust 1, 2010 

Eight years ago today, armed with two legal opinions that gutted the prohibition against torture, CIA agents and contractors began the month-long "enhanced interrogation" of Abu Zubaydah in a secret CIA dungeon in Thailand.

Throughout August, drawing from the specific menu of "techniques" the memos offered, interrogators slammed Abu Zubaydah repeatedly into walls, locked him in "confinement boxes," deprived him of sleep, shackled him naked in stress positions, and waterboarded him 82 times. They stopped waterboarding him when they finally concluded he was not concealing information — and then officials flew from Washington to Thailand and insisted on watching an eighty-third session.

Today, nobody argues that Abu Zubaydah wasn't tortured. His name has disappeared from dozens of charge sheets against other detainees because the information he gave was so clearly tainted by his treatment. And yet we have done practically nothing to address the abuse that he and many others suffered, as U.S. and international laws against torture require — no prosecutions or investigations of senior officials who oversaw the torture program, no meaningful acknowledgment or redress for the program's survivors.

President Bush, Vice President Dick Cheney, legal memo author John Yoo, and the other architects of the program brazenly discuss their crimes in public appearances, still pressing the memos' flawed line that the brutal treatment of prisoners was necessary, that it was justifiable as self-defense, or simply that the President can ignore the law in the name of national security.

Meanwhile, the world is beginning to shame us for our inaction.

We now know that Abu Zubaydah's treatment in Thailand was the foundation of a kind of Ponzi scheme for torture, in which others were tortured until they confessed to fictitious plots that Abu Zubaydah had invented for his interrogators. One of those caught in this scheme was Binyam Mohamed, who was tortured in Pakistan and then rendered to Morocco and tortured some more to press him to confess to participating in a fantastical "dirty bomb" plot with Jose Padilla. There never was such a plot, and finally, last year, Mohamed was released from Guantanamo; he is now back home in the U.K. There, the entire country knows his story, thanks partly to the fact that U.K courts refused to be bullied by the U.S. into suppressing evidence of his abuse.

The British are responding to the Binyam Mohamed revelations as they should: they are demanding that British intelligence agents who aided and abetted the U.S. torture program be investigated and held accountable for their actions. A few weeks ago, in announcing an official national inquiry into these allegations of complicity, British Prime Minister David Cameron told the House of Commons that "the longer these questions remain unanswered, the bigger the stain on our reputation as a country that believes in freedom, fairness, and human rights grows."

Similar processes are unfolding in other countries.

An Australian high court has ruled that its government, too, must answer allegations that it aided the U.S. in the rendition and torture of one of its citizens. Prosecutors in Munich and in Rome have issued indictments against CIA agents in connection with renditions carried out on their soil. Poland and Lithuania are investigating their government's connection to CIA black sites in their countries. And Canada conducted a national inquiry leading to an official apology and millions of dollars of compensation to Maher Arar, a Canadian citizen whom the U.S. mistakenly sent to Syria to be tortured.

By contrast, both the Bush and Obama administrations fought to keep Maher Arar's case out of American courts, arguing that airing his uncontested and internationally accredited story could damage diplomatic relations and national security. Last month, the Supreme Court refused to reconsider the dismissal of the case. A low point in the United States' undignified slink from accountability, the symbolism of our nation's highest court literally refusing to hear the case of a man that the world knows was kidnapped and tortured couldn't be clearer.

The situation we are facing now will only get worse.

Even here, lower courts hearing the habeas corpus petitions of Guantanamo detainees are routinely adding to the damning record of abuse.

"Throughout his detention, a constant barrage of physical and psychological abuse was employed to manipulate him and program him into telling investigators what they wanted to hear," one recent opinion reads; another, "There is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured."

Every week we stand more exposed—before the world, and before ourselves.

The past is not receding: the record is more present and more visible all the time. The torture of Abu Zubaydah eight years ago this month diminished our standing in the world. As more cases of torture and abuse come to light, and as many of our indispensible allies renounce their own collusion with the U.S. torture program, the question now is whether we'll diminish ourselves even further by not owning up to truths that are widely known.

ABOUT THE WRITERS Jameel Jaffer is the Deputy Legal Director of the ACLU. He can be reached by e-mail at: jjaffer@aclu.org. Larry Siems is Director of Freedom to Write at PEN American Center and the principal author of thetorturereport.org. He can be reached by e-mail at: lsiems@pen.org.

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