The Cancer of Democracy

June 29, 2010

Last month, representing Amnesty International in a meeting at the State Department, I listened to the new Legal Adviser Harold Koh, former Dean of the Yale Law School, describe the Obama administration as the anti-torture presidency.

That is a bold claim and the International Day in Support of the Victims of Torture is the perfect moment to take a step back and review the administration’s record on this issue. Can Obama really claim to be the anti-torture president?

As far as human rights groups were concerned the Obama administration got off to a flying start with the executive orders pledging to close Guantanamo and restricting all US personnel to using interrogation techniques delineated in the 2006 Army Field Manual on Interrogations.

Unfortunately this was high point and it has been downhill all the way ever since. While the Executive Order put an apparent end to waterboarding and CIA black sites the 2006 Interrogations Field Manual is itself far from unproblematic.

There is nothing in the manual to prevent the reintroduction of the so-called “frequent flyer” technique of constantly waking and rewaking an individual after only a few minutes sleep so that no effective rest is gained at all.

In the past eight months credible reports have emerged that such techniques are still being used in US military detainee screening centers in Afghanistan. An earlier US Army field manual explicitly prohibited “abnormal sleep deprivation” as a form of “mental torture.”

Concerns about the Field Manual are not solely confined to sleep deprivation. Unlike its 1992 predecessor the new field manual does not explicitly prohibit the use of stress positions or ‘long-time standing.’

Other techniques widely reported to have been used by US personnel in the context of the Global War on Terror, such as forced shaving, leveraging cultural taboos, and phobia exploitation, and are also not explicitly addressed.

Setting appropriate boundaries is only part of the problem. How serious can the President’s commitment to eradicating torture be when those who have carried out such abuses continue to enjoy impunity from prosecution?

Advocates of torture seem to be positively flourishing. Former US Army Lt Col Allen West is a case in point now running for Congress in Florida despite having been relieved of his command for subjecting an Iraqi suspect to a mock execution in 2003.

The only individual who appears to have suffered adversely politically from an association with the Bush administration’s coercive interrogation program is discarded DoJ General Counsel nominee Dawn Johnsen – and she was penalized for her principled opposition to it.

Equally damning is the fact that those detainees who have been abused by the US government and its proxies have received no compensation for their ill-treatment. Even those individuals mistakenly detained and then released after months of physical abuse have received nothing.

Indeed, Obama administration lawyers continue to advance the same arguments made by Bush administration attorneys to block attempts by US torture victims to gain some measure of compensation for the damage done to them. There is certainly no sign of an apology in the offing.

As a signatory of the International Covenant of Civil and Political Rights the United States is obligated by international law to provide a mechanism for remedy for victims of miscarriages of justice.

Yet the Obama administration continues to hide behind the state secrets privilege to block attempts at litigation. The essence of the government’s position is that US national security would be jeopardized by holding the government’s actions up to public scrutiny.

America’s allies have been far less squeamish. The Canadian government launched a public inquiry into the case of Maher Arar, a Canadian national detained at JFK on the basis of faulty intelligence and rendered to Syria where he was tortured for almost a year.

Arar received C$10.5m in compensation from the Canadian government. Australia has also recognized the legal right of former GTMO detainee Mamdouh Habib to sue the Australian authorities for damages. Sweden has reportedly made awards of compensation to rendition victims in two cases.

The journalist Pierre Vidal-Naquet writing about French tactics during the Algerian struggle for independence described torture as the “cancer of democracy.” It undermines democratic values, military discipline and individual morality.

Torture can’t be wished away. You can’t pretend it never happened. As General Patreaeus put it recently the effects of torture are “nonbiodegradeable.” You can’t move forward until you have confronted and atoned for the past.

In the past eighteen months the President has adopted a-don’t-ask-don’t-tell policy to torture that has betrayed the promises he made on the campaign trail to restore America’s tarnished reputation.

America is weaker, not stronger, today because of it. The anti-torture presidency? Hardly.