Obama Vows to Prosecute Torturers, But There's a Catch
Written by Jason Leopold
Monday, 29 June 2009 07:53
By Jason Leopold

President Barack Obama just announced that the U.S. government is determined to prosecute officials who are responsible for torturing prisoners. But there’s a catch. Obama’s pledge only applies to torturers working for other governments.

To mark the 25th anniversary of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Obama quietly released a statement on Friday that called on the international community “to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment.”

Obama singled out the governments of Burma, Cuba, North Korea, Iran and Zimbabwe for human rights violations and engaging in “elaborate deceptions” aimed at concealing “their abuses from the eyes of the world... and denying access to international human rights monitors.”

Obama also cited Iraq under the previous government of Saddam Hussein, saying that “with Iraq’s liberation, the world is only now learning the enormity of the dictator’s three decades of victimization of the Iraqi people” and “a vast array of sadistic acts perpetrated against the innocent.”

While denouncing alleged torture by states that Washington dislikes, Obama was silent on the controversy over the Bush administration’s use of waterboarding and other torture tactics on detainees held by U.S. authorities during the “war on terror.” Some also were held as “ghost prisoners” at “black sites” out of the reach of the international human rights monitors.

Nor did Obama mention how U.S. forces abused Iraqi prisoners at Abu Ghraib, the same prison used by Saddam Hussein. Nor was there any reference to prisoners whom the United States “renditioned” to countries like Egypt and Syria which tortured them essentially at the behest of the Bush administration.

Obama also left out his decision to “look forward, not backward” on the issue of Bush-era torture or how he has discouraged any investigation of former President George W. Bush, ex-Vice President Dick Cheney and other officials involved in sanctioning and practicing torture, brutal tactics that human groups claim killed at least 100 prisoners in U.S. custody.

Instead, in his statement, Obama simply declared that “the United States is committed to the world-wide elimination of torture and we are leading this fight by example.”

Reagan-Era Treaty

The 1984 Convention Against Torture was approved by 145 nations, including the United States which signed it in 1988 under President Ronald Reagan. He hailed the treaty as "a significant step" in preventing torture, "an abhorrent practice unfortunately still prevalent in the world today."

The Convention declares that: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Moreover, the Convention says individuals who resort to torture cannot defend their actions by saying they were acting on orders from superiors and it mandates that torturers be prosecuted wherever they are found. According to that provision, "each state party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution."

In a May 20, 1988, message to the U.S. Senate, Reagan noted, "the core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called 'universal jurisdiction.'"

It was this Convention, ratified by the Senate in 1994, that Bush administration officials sought to bypass with legal memos, many drafted by John Yoo of the Justice Department's Office of Legal Counsel.

Obama’s sanctimonious declaration on Friday comes at a time when the international community has become acutely aware of the policy of torture implemented by the Bush administration – and of Obama’s resistance to any type of comprehensive investigation whether it be by a congressional committee, a blue-ribbon commission or the Justice Department.

It’s also clear that the United States is guilty of many of the precise offenses that Obama said were committed by what he called “rogue regimes.” For example, under the Bush administration, the military routinely hid prisoners in U.S. custody from the International Committee of the Red Cross (ICRC).

In a Jan. 2, 2004, memo drafted for military police and interrogators at Abu Ghraib prison in Iraq and signed by Col. Marc Warren, the top legal adviser to Lt. Gen. Ricardo Sanchez, who was commander of U.S. forces in Iraq, was entitled “New plan to restrict Red Cross access to Abu Ghraib.” The contents of that memo have never been released.

Ghost Prisoner

In 2004, Secretary of Defense Donald Rumsfeld admitted that at the request of then-CIA Director George Tenet, he authorized the U.S. military in the fall of 2003 to hide an Iraqi prisoner from the ICRC and other organizations that monitor the treatment of prisoners.

Rumsfeld told reporters at a June 17, 2004, press briefing that Tenet sent him a letter asking the U.S. military to imprison the Iraqi who was believed to be a high-ranking member of Ansar al-Islam, a Kurdish terrorist group suspected of links to al-Qaeda. Tenet further told Rumsfeld to be sure the detainee was kept off the prisoner rolls, which he was for six months.

"We were asked not to immediately register the individual, and we did that," Rumsfeld told reporters at the time.

Documents obtained by the Senate Armed Services Committee go even further. Minutes of an Oct. 2, 2002, meeting at which Lt. Col. Diane Beaver, then the chief military lawyer at Guantanamo whose responsibilities included working with the ICRC, discussed concealing abusive interrogation tactics when ICRC officials visited.

"We may need to curb the harsher operations while ICRC is around," Beaver said, according to the minutes. "It is better not to expose them to any controversial techniques."

"We have had many reports from Bagram [detention center in Afghanistan] about sleep deprivation being used," responded Dave Becker of the Defense Intelligence Agency.

"True, but officially it is not happening," Beaver said. "It is not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention."

Jonathan Fredman, who was the chief counsel for the CIA's Counterterrorism Center, noted that the "the CIA is not held to the same rules as the military" when it comes to using aggressive techniques to interrogate detainees.

"In the past when the ICRC has made a big deal about certain detainees, the DOD has 'moved' them away from the attention of the ICRC," Fredman said. "The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up on the second part, because of the 8th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques."

Beaver interjected: "We will need documentation to protect us."

High-Minded Words

Taking office in January, Obama announced that his administration would not condone or practice torture, but he also opposed holding Bush administration officials accountable out of fear that his actions might be deemed vindictive. He has held to that position although Attorney General Eric Holder and CIA Director Leon Panetta both agreed that the near-drowning experience of waterboarding was torture.

Bush’s Justice Department lawyers also approved a list of other torture techniques to be used against so-called “high-value” prisoners, including beatings, sleep deprivation for 11 consecutive days, placing insects inside a confinement box to induce fear, exposing detainees to extreme heat and cold, and shackling prisoners to the ceilings of their prison cells or in other painful “stress positions.”

Under the Convention Against Torture, the clear record that the Bush administration used waterboarding and other brutal techniques should have triggered the United States to conduct a full investigation and to prosecute the offenders. If the United States refused, other nations would be obligated to act under the principle of universality.

Instead, Obama’s high-minded declaration on Friday substituted words for action, condemning torture techniques in the abstract and pointing the finger at countries that the United States doesn’t like.

“These despicable crimes cannot be tolerated by a world committed to justice,” Obama said. “The suffering of torture victims must end, and the United States calls on all governments to assume this great mission.”