Nightmares made law

‘Obama is right not to target CIA interrogators. The torture memos show where blame truly lies,’ Philippe Sands.

The four secret US department of justice opinions released this week are jaw-dropping in their detail. They reveal how far the Bush administration was prepared to go in sanctioning interrogation techniques that plainly amount to torture.

The long-awaited publication of the August 2002 memo, signed by Jay Bybee but largely written by John Yoo, authorises 10 previously unlawful interrogation techniques. These include slapping, stress position and sleep deprivation, right up to waterboarding. It is doubtful a more shocking legal opinion has ever been written. It even purports to analyse if incarcerating a detainee in a small box with an insect for company would amount to mental torture (it depends what you tell him about its sting).

This is the stuff of dark nightmares, the rubber-stamping of policy rather than legal advice in the sense usually understood. It indicates how far the Bush administration fell, the kind of reasoning that infected a raft of policies and to which the British government often turned a blind eye. It has caused untold damage to US national security, and to its reputation.

When the memo was written, the administration had already fixed a policy of abuse, and the torture had already started. Lawyers were needed to provide the “golden shield” against prosecution. The memo did not benefit from the usual consultations; the many lawyers who would have objected were simply cut out of the process. A small group of lawyer-ideologues became participants in international crime, acts for which any state may, under the 1984 torture convention, exercise criminal jurisdiction. The evidence suggests complicity with the consequences that flowed from these flawed opinions – which went on to underpin CIA and military interrogations in Guantánamo, Iraq and beyond in the rendition programme.

On releasing the opinions, President Obama explained he was motivated by a desire for truthfulness. He has made clear that the CIA interrogators who relied on them in good faith should not be prosecuted, and in so doing confirmed that crimes have been committed. He chose his words with evident care: he could have said there would be no prosecutions – but he didn’t. He did not offer a general get-out-of-jail-free card; rather, he has pointed the finger of responsibility at the lawyers, one of his early acts being to prohibit future interrogators from relying on any department of justice advice prepared between 9/11 and January 2009.

Obama walks a tightrope on an issue that may yet come to dog his first term: what to do about torture practised during a “dark and painful” period? He balances an understandable desire for bipartisanship with obligations under the torture convention to pursue criminal investigations. “This will be worked out over time,” he told Spanish CNN on Thursday, referring to possible criminal investigations by Spanish judge Baltasar Garzón of the “Bush Six”, the administration officials who played a central role in devising the policy of abuse. It seems no coincidence that this week’s developments occurred within a few hours of the move by Spain’s attorney general to head off a criminal investigation of the Bush Six, reasoning that the real targets should include those who physically carried out the torture.

If there was co-ordination, it seems to have gone askew. Obama is right not to target the interrogators in the sense that real responsibility lies much higher up. The senior lawyers and their patrons should derive little comfort from his intervention: they remain at risk of criminal investigation – or worse, in a legal black hole of their own making.

• Philippe Sands QC is professor of law at University College London and author of Torture Team: Uncovering War Crimes in the Land of the Free

Author: Idrees Ahmad

I am a Lecturer in Digital Journalism at the University of Stirling and a former research fellow at the University of Denver’s Center for Middle East Studies. I am the author of The Road to Iraq: The Making of a Neoconservative War (Edinburgh University Press, 2014). I write for The Observer, The Nation, The Daily Beast, Los Angeles Review of Books, The Atlantic, The New Republic, Al Jazeera, Dissent, The National, VICE News, Huffington Post, In These Times, Le Monde Diplomatique, Die Tageszeitung (TAZ), Adbusters, Guernica, London Review of Books (Blog), The New Arab, Bella Caledonia, Asia Times, IPS News, Medium, Political Insight, The Drouth, Canadian Dimension, Tanqeed, Variant, etc. I have appeared as an on-air analyst on Al Jazeera, the BBC, TRT World, RAI TV, Radio Open Source with Christopher Lydon, Alternative Radio with David Barsamian and several Pacifica Radio channels.

One thought on “Nightmares made law”

  1. In the United States, contract killers sometimes get lighter sentences than the people who contracted for their services, but unless they can work a deal where they can help put away a lot of contractors for kills, they are not immunized against prosecution, they are prosecuted and they go to prison as well as those “higher up” with that “real responsibility”.

    Sands’ logic here is for shit, obviously in service of elevating Obama instead of serving the rule of law, or justice. Maybe he doesn’t have to have any respect for our Constitution, but Obama is sworn to protect and uphold it, and he outright is not.

    THEY ALL KNEW WHAT THEY WERE DOING WAS ONE OF THE WORST FELONIES ANYONE CAN COMMIT, AND THAT “JUST FOLLOWING ORDERS” IS NO DEFENSE.

    They are all adults. They are all responsible for their actions.

    What utter shit.

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