President Barack Obama declared "nobody's above the law" in 2009, as Congress contemplated an investigation of torture authorized by the Bush administration. However, Obama has failed to honor those words. His Justice Department proclaimed its intention to grant a free pass to Bush officials and their lawyers who constructed a regime of torture and abuse. US Attorney General Eric Holder announced last week that his office will investigate only two instances of detainee mistreatment. He said the department "has determined that an expanded criminal investigation of the remaining matters is not warranted." Holder has granted impunity to those who authorized, provided legal cover, and carried out the "remaining matters."
Both of the incidents that Holder has agreed to investigate involved egregious treatment and both resulted in death. In one case, Gul Rahman froze to death in 2002 after being stripped and shackled to a cold cement floor in a secret American prison in Afghanistan known as the Salt Pit. The other man, Manadel al-Jamadi, died in 2003 at Abu Ghraib prison in Iraq. He was suspended from the ceiling by his wrists, which were bound behind his back. Tony Diaz, a military police officer who witnessed al-Jamadi's torture, reported that blood gushed from his mouth like "a faucet had turned on" when al-Jamadi was lowered to the ground. These two deaths should be investigated and those responsible punished in accordance with the law.
The investigation must also have a much broader scope. More than 100 detainees have died in US custody, many from torture. Untold numbers were subjected to torture and cruel treatment in violation of US and international law. General Barry McCaffrey said, "We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A."
Detainees were put in stress positions, including being chained to the floor, slammed against walls, placed into small boxes with insects, subjected to extremely cold and hot temperatures as well as diet manipulation, blaring music, and threats against themselves and their families.
At least three men were waterboarded, a technique that makes the subject feel as though he is drowning. Pursuant to the Bush administration's efforts to create a link between Saddam Hussein and al-Qaeda, Khalid Sheikh Mohammed was waterboarded 183 times. Abu Zubaydah received this treatment on 83 occasions.
US law has long recognized that waterboarding constitutes torture. The United States prosecuted Japanese military leaders for torture based on waterboarding after World War II. The Geneva Conventions and the US War Crimes Act make torture punishable as a war crime.
Lawyers in the Office of Legal Counsel under President George W. Bush, including John Yoo and Jay Bybee, wrote the torture memos. They redefined torture much more narrowly than the Convention Against Tortureand the War Crimes Act, knowing interrogators would follow their advice. They also created elaborate justifications for torture and abuse, notwithstanding the absolute prohibition of torture in our law. When the United States ratified the Convention Against Torture, it became part of US law under the Constitution's Supremacy Clause. The convention says, "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."
Bush, Vice President Dick Cheney and Yoo have all said they participated in the decision to waterboard and would do it again. Thus, they have admitted the commission of war crimes. Major General Anthony Taguba, who directed the investigation of mistreatment at Abu Ghraib, wrote, "there is no longer any doubt as to whether the [Bush] administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."
Taguba's question has been answered. None of those lawyers or officials will be brought to justice. Outgoing CIA Director Leon Panetta said, "We are now finally about to close this chapter of our agency's history." Ominously, David Petraeus, incoming CIA Director, told Congress there might be circumstances in which a return to "enhanced interrogation" is warranted. That means torture may well continue during Obama's tenure. This is unacceptable.
Not only is torture illegal; it does not work and it makes people outside the US resent us even more. High-level interrogators such as FBI agent Ali Soufan have said the most valuable intelligence was obtained using traditional, humane interrogation methods. Former FBI agent Dan Coleman agrees. "Brutalization doesn't work," he said. "Besides that, you lose your soul."
Marjorie Cohn is a professor of law at Thomas Jefferson School of Law. She is a past president of the National Lawyers Guild and she lectures throughout the world on international human rights and US foreign policy. Cohn is also a news consultant for CBS News and a legal analyst for Court TV, and provides legal and political commentary on BBC, CNN, MSNBC, Fox News, NPR, Air America and Pacifica Radio. She is the editor of The United States and Torture: Interrogation, Incarceration, and Abuse (NYU Press 2011).