The Obama administration has the opportunity to make its stance on torture clear in the coming weeks. For the first time since the president took office, the White House is sending a delegation to testify before the Committee Against Torture in Geneva in November. In December, back at home, they'll need to explain their controversial decision to withhold up to 2,100 photos of US soldiers abusing Iraqi and Afghan detainees in their custody.
If the current administration wants to distance itself from the abuses of the previous one — an intention the president has stated repeatedly from his first day in office — human rights advocates say this is the time to show it, not merely by condemning or prohibiting torture, but by unequivocally stating that it is illegal anywhere, and coming clean on violations the US has committed over the last decade.
In 2009, a day after taking office, Obama made clear his condemnation of the Bush administration's practices and signed an executive order prohibiting torture as an interrogation tactic. As part of the same effort, he also ordered Guantanamo closed, which has yet to happen.
The president's policy has been, from day one, to break away from the Bush years, which brought the US the Patriot Act and its abuses, Guantanamo, Bagram, and the Abu Ghraib scandal. But prohibiting torture by executive order is not the same as admitting it is universally illegal — a principle that advocates argue the US agreed to uphold when it signed the UN Convention Against Torture.
In 2005, Bush administration officials argued that the treaty didn't actually apply to the CIA and special forces outside US territory — a selective reading that some military and intelligence lawyers in the current administration are still defending, as the New York Times recently reported. Now the Committee Against Torture wants the US to spell out its position.
The Times' revelation has also raised fears among human rights advocates that the US may still try to use the same Bush-era argument to justify behavior internationally recognized as illegal. Human rights activists are demanding that US officials take an unambiguous stand on the matter once and for all.
"The US has a unique opportunity in Geneva to reject the untenable and harmful position regarding torture and ill treatment that were put forward by the previous administration," Laura Pitter, a national security researcher at Human Rights Watch, told VICE News. "You have to give Obama credit for the executive order that was issued when he first took office, but they still need to go further and make clear that the convention against torture applies outside US borders as well."
The Center for Justice and Accountability, a human rights organization, wrote a letter to US officials, in October, calling on them to break away from the previous administration's "intellectually dishonest" reading of the torture treaty. A clear statement by the US that the convention bans torture anywhere is not just "an academic question," Kathy Roberts, the group's legal director, told VICE News.
"The Bush administration had taken that position before, because it hadn't been clarified then," Roberts said. "The executive order only really applies to the president saying 'Don't do this,' so people don't do it, but that doesn't make it have the status of international law."
Roberts added that any US legal position that allows for "flexibility" on the use of torture in the future "should be cause of very grave concern, not just for any future administration, but for our men and women abroad now."
"Sending that kind of a message suggests that what is a universal prohibition and has been a universal prohibition is suddenly open into question, and maybe it's optional," she said.
Bernadette Meehan, a National Security Council spokeswoman, said in a statement to VICE News that the questions the Committee Against Torture has raised with the US ahead of its November presentation are "technical and interpretive," but, "there is no review of the firm conclusion that US government personnel are prohibited from engaging in torture or cruel, inhuman, or degrading treatment, at any time, or anywhere."
"As we've made clear, the President believes that the former rendition, detention, and interrogation program was inconsistent with our values as a Nation and that public scrutiny, debate, and transparency will help to inform the public's understanding of the program to ensure that such a program will never be used again," Meehan said.
But critics say the current US stance remains too ambiguous.
Ramzi Kassem, an associate professor of law at the City University of New York who, with his students, has also represented US prisoners at Guantanamo, Bagram, and "black site" detention centers around the world, is wary of giving the administration the benefit of the doubt.
'The Obama administration is basically saying that they want to preserve the option of engaging in this sort of criminal conduct overseas and at the same time they want the public and the international community to trust that they will not do it.'
"The Obama administration is basically saying that they want to preserve the option of engaging in this sort of criminal conduct overseas and at the same time they want the public and the international community to trust that they will not do it," he told VICE News. "Even if one were to trust this administration, that is no guarantee that a future presidential administration would not change its mind. And frankly, I'm not so sure that we should trust that the Obama administration will adhere to their policy. They might decide to depart from their policy at any point in the near or distant future, without making a huge announcement about it."
'The Devil Is in the Details'
Obama's executive order prohibiting torture was largely symbolic, Kassem said. A closer look at its language shows the ban was far from universal, and specifically referred only to "long-term" detention at US "black sites," secret prisons around the world where suspects were tortured in an effort to extract intelligence — a practice Bush officials had already abandoned.
"A lot of Obama supporters will point to that moment as an example of how different the Obama administration has been from the Bush administration, but the reality is that the only thing Obama did on that day was pronounce that the CIA was no longer going to be in the business of long-term detention," Kassem said. "The devil is in the details here."
The executive order's details suggest that the CIA and other branches of the US government, including special forces, could still maintain black sites for short-term detention purposes. There, they could interrogate prisoners following to the protocols outlined in the US Army Field Manual.
But when you look at the Army Field Manual, and specifically at its Appendix M, added in 2006, many techniques that are allowed — such as sleep deprivation and stress positions — are universally recognized as torture. These are not prohibited by Obama's executive order.
"So what we do know, and we know very little factually, is that the CIA and special forces can still run secret, short-term detention sites," Kassem said. "And within those secret prisons they can interrogate people as far as the Army Field Manual allows and the Army Field Manual allows certain forms of torture."
There is no evidence these techniques have actually been used since Obama took office — though some defendants have charged otherwise — but the administration has technically preserved its authority to use them.
"It isn't a huge speculative step to say, if they took such great pains to preserve that authority, they are probably doing it," Kassem said. "We just don't know for sure."
In Geneva, this month, administration delegates are expected to clarify whether they interpret their commitment to the convention against torture to apply to torture anywhere, or whether, like during the Bush administration, they still reserve room for exceptions.
But while US officials have made it very clear they want to look ahead, human rights advocates also want them to come clean on their past — an effort at transparency that many in the military and intelligence communities fiercely oppose.
"This country continues to struggle with this really dark chapter that we went through after 9/11 and pushing it under the rug and pretending that didn't happen is never going to work," Roberts said.
'This country continues to struggle with this really dark chapter that we went through after 9/11 and pushing it under the rug and pretending that didn't happen is never going to work.'
"The administration has been clear that it prefers to look forward rather than look back but you can't move forward until you look back," Pitter agreed. "What the US did to individuals post-9/11 as part of the CIA program was a clear violation of its own laws and of international laws, and it's not going to go away or disappear unless the US reckons with it."
The US government has made some efforts to address the legacy of the war on terror, but these have been met with much resistance. The administration has also gone to great lengths and invoked state secrets and national security concerns to ensure there is no accountability for past crimes.
A 6,000-page, $40 million report by the Senate Select Committee on Intelligence on the genesis and efficacy of the CIA's post-9/11 torture program has been heavily redacted by a number of agencies unhappy with its findings — the CIA first among them.
Officials familiar with the report have previously told VICE News that the report includes several previously undisclosed interrogation methods, which in certain instances were "improvised," and underscore the "cruelty" of the program. The Intelligence Committee launched its analysis in 2009, just a few months after Obama was sworn into office, in response to another scandal: the CIA's destruction of close to 100 interrogation videotapes that showed at least one high-value detainee being water-boarded, according to court documents.
In August, during a press briefing, Obama responded to questions about the status of the report, and admitted, for the first time, that only "some" of the torture techniques described in the report had been banned. In that instance, Obama admitted that "we tortured some folks" — but he said it was done by patriotic Americans in the aftermath of 9/11 and "it's important for us not to feel too sanctimonious in retrospect about the tough job that those folks had."
"A lot of those folks were working hard under enormous pressure and are real patriots," Obama said. "But having said all that, we did some things that were wrong. And that's what that report reflects. And that's the reason why, after I took office, one of the first things I did was to ban some of the extraordinary interrogation techniques that are the subject of that report."
There are also plenty of people in Washington doing their best to make sure the report's most damning details — and the names of those responsible for them — never make it to the public.
"They have clearly not done enough when it comes to accountability for past abuse," Pitter said. "The White House and the CIA have been extremely resistant to even coming clean about what actually happened to detainees while they were in US custody, and blocked efforts to put forward the truth about what actually went on by the senate intelligence committee."
Kassem said the Obama administration has largely followed the Bush administration's strategy "of avoiding both judicial scrutiny and public scrutiny." Eager to move forward, officials have been reluctant to disclose details that might spur domestic or international demands for prosecution and real accountability.
"So you find yourself in this very odd world where Obama goes public and uses the term 'torture,' so you have a crime, but you have no criminals," Kassem said. "You have a crime, you have victims, but no one is responsible."
Citing leaked documents and testimony by former government officials and survivors of US torture, Kassem said, "We know in the abstract about some of the things that were done in these sites." But, he added, there are many other details that are still being kept secret.
"But periodically we learn something new, something shocking," Kassem said. "Like recently, we learned that actually, in addition to water boarding certain prisoners over 100 times, some prisoners were just plain drowned. Bush-era officials reassured the public that, 'Really, we are not engaged in any medieval stuff here, it's a very precise, very carefully calibrated, much more civilized endeavor befitting of a democratic society.' But a few months ago we found out that really they were dunking people in water just like the Viet Cong and others did before them."
When it eventually makes it to the public spotlight, the CIA report will likely reveal the scope of US abuses in unprecedented detail. Until then, the 2,100 graphic photos of Iraqi and Afghan detainees the government is holding on to can also shed more light on abuse by US forces.
Earlier this month, a judge ruled the Justice Department will have to explain, photograph by photograph, its rationale for keeping the photos away from public scrutiny.
In 2009, as the Pentagon prepared to release them, Obama said the photographs were "not particularly sensational, especially when compared with the painful images that we remember from Abu Ghraib." But he quickly reversed his position, telling his lawyers to object to the release of the photos and warning that doing so would have a "chilling effect."
"The most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger," he said then.
VICE News previously obtained documents from the Department of Defense that indicate the photographs may be far more troubling than the administration initially let on.
In another letter, a dozen Nobel Peace Prize laureates — a title they share with Obama, who was awarded the Nobel Peace Prize in 2009 — encouraged the president to embrace full disclosure of the US record on torture.
"It remains to be seen whether the United States will turn a blind eye to the effects of its actions on its own people and on the rest of the world, or if it will take the necessary steps to recover the standards on which the country was founded, and to once again adhere to the international conventions it helped to bring into being," the Nobel laureates wrote.
They also made a statement that echoes a concern of human rights advocates worldwide: Whatever the US does "will be used to justify the use of torture by regimes around the world."
"Globally, these practices will be replicated. Just like the US War on Terror spawned dozens of other wars on terror pretty much everywhere, and those foreign wars on terrors are aimed at opposition dissidents and others that those governments don't like," Kassem said. "What this does is normalize these practices as one of the available, legitimate options that a government can rely on. Because of course if the US is doing it, then they are in no position to tell other governments not to do it."
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