[DEBATE] : Obama is right not to target CIA interrogators. The torture memos show where blame truly lies

[Riaz K Tayob]

Nightmares made law

Obama is right not to target CIA interrogators. The torture memos show 
where blame truly lies
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* Philippe Sands
*
o Philippe Sands
o The Guardian, Saturday 18 April 2009
o Article history

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

http://www.guardian.co.uk/commentisfree/libertycentral/2009/apr/18/memo-2002-torture-techniques-obama