The impending release of the Hollywood film Zero Dark Thirty has sparked a vigorous debate about torture, which has reinvigorated cries for accountability. A consensus among informed observers has emerged that torture was never actually helpful in securing useful intelligence information to support our nation's wars abroad.
But the question of efficacy has obscured more important issues. Largely absent from the debate have been apparently forgotten concerns about human rights, accountability, and the rule of law.
Just to reiterate the consensus: torture did not help national security. The chairs of the Senate intelligence and armed services committees, in addition to a recent Republican presidential nominee and torture survivor, and the acting head of the CIA, have all publicly announced that the film's depiction of torture exaggerates its usefulness.
In fact, as they have all confirmed, the information that led to the death of Osama bin Laden was gained through traditional intelligence methods, not the unconstitutional “enhanced interrogation” human rights abuses illegally concocted by former Vice President Dick Cheney, Ninth Circuit Judge Jay Bybee, and others.
Not only was torture unhelpful as an interrogation method, it was actively counterproductive: it fueled the recruitment of new terrorists by our nation's enemies, and undermined our nation’s moral standing in the world, degrading the “smart power” that was responsible for our triumph over the Soviet bloc and the relative peace in the decades following WWII.
Yet in the wake of torture, our government has turned a blind eye to enforcing the law, ensuring that it will recur by endorsing a regime of unaccountability in direct violation of the Eighth Amendment of the US Constitution, the precedent from the Nuremberg trials, the UN Convention Against Torture (CAT), and our federal statute enforcing the CAT.
The Obama administration commits violations of human rights every day it fails to pursue accountability for the architects of the Bush administration's torture program. The first term decision to “look forward, not backward” reflected a capitulation to political headwinds, but it also heralded a great deal more.
First, it reflected the naïveté of the new administration dreaming that it could transcend partisan division. With the sober realities of the first term behind it, and the fresh political mandate conferred by a resounding re-election victory, the Obama administration should not hesitate to pursue long overdue investigations of senior Bush administration officials. Indeed, those investigations are required under international legal principles—principles so cherished that we once fought a world war to establish them.
Second, the Obama administration's resignation of accountability for torture enabled a political counterattack by neo-conservatives that ultimately proved largely responsible for the partisan gridlock that has descended upon Washington. Rather than conciliate his right-wing detractors such as Dick Cheney, the president's abdication of his legal duty to prosecute those responsible for torture emboldened them. As during the departures of Greg Craig and Van Jones from the White House, neo-conservatives smelled blood. The congressional paralysis that resulted, in turn, ultimately helped extend the financial crisis and deepen the recession.
Finally, and most importantly, the Obama administration's capitulation to continued power and prestige—rather than prison cells—for human rights abusers represented a loss of world historical proportions for justice, accountability, transparency, and the expansion of human rights over the past several centuries. It resigned 50 years of international human rights law that had once represented the high water mark of justice in a world where life has long been “nasty, brutish and short.”
One of the architects of the Bush administration's torture program, Judge Jay Bybee, holds a lifetime judicial appointment to the Ninth Circuit Court of Appeals, threatening the legitimacy of our federal judiciary: it incarcerates 25 percent of humankind's prisoners, yet a politically connected lawyer apparently guilty of war crimes holds a lifetime seat on the bench!
Other torture architects, including President Bush, enjoy the good life in the US despite risking arrest should they ever travel abroad. Like Bybee, UC Berkeley law professor John Yoo draws a quarter million dollar government salary from a prestigious public legal institution.
Allowing the politically powerful to stand above the law creates a grave legitimacy crisis for our criminal justice system. Our country is hardly forgiving towards crime: we have relentlessly prosecuted many more than the 2.5 million Americans who rot in jails for far less egregious offenses.
What sense would it make to forgive only the most heinous crimes? Mass incarceration, alongside impunity for torture, represents precisely that choice.
Earlier this month, the Senate Intelligence Committee voted to approve a 6,000 page report on torture based on a three year investigation that reviewed over 6 million pages of documents from the CIA and other intelligence agencies. While the Senate report is sharply critical of torture, however, it remains secret.
How Zero Dark Thirty depicts torture, and whether that depiction is accurate, are good questions for our country to grapple. Until recently, torture had been swept under the rug, along with many other Bush era excesses that the Obama administration has failed to resolve.
But beyond the cramped debate about whether torture “works” is a teaching opportunity, a chance to remind America what we once stood for. The nearly universal repudiation of torture by experienced interrogators and informed legislators should help resolve the first question. The prevailing debate has yet to even reach the second question.
The Obama administration and the Senate Intelligence Committee could help advance the debate. Simply allowing the press and the public to read the committee’s report would expose the film’s potentially misleading narrative.
They could also do more, particularly by directing the Pentagon to finally comply with the numerous court orders demanding release of thousands of photos and videos documenting torture that the Defense Department continues to hold in secret.
In the meantime, the holiday season offers a timely chance to reflect on torture. Zero Dark Thirty has certainly sparked more debate over the issue than our nation has seen in some time.
But torture is nothing new. Across the world, many cultural and religious leaders have been subjected to its horrors. Much of the world celebrates, at this time of year, the birth of a world-historical leader and champion of social justice two thousand years ago whose torture at the hands of unaccountable political rulers we universally lament.
It shouldn’t take a movie, or a Senate report, or a court case, or a long overdue decision by a politically timid president, to remind us that torture is a crime the world over. And it shouldn't take a grassroots clamor to motivate the President or the Senate to share important information with the public. But as long as the movie presents the opportunity, it behooves every American with a conscience to raise your voice today.
GET E-MAIL UPDATES
ICYMI this oldie but goodie: #SCOTUS #Justice warns of internment (mass detention) happening again t.co/hsajuKLyJf
Join @Sheeyahshee & @Blackstarjus at #SLULAW on Thursday. Can police body cameras help #BlackLivesMatter? t.co/wsvWwcyGhc
UN -- led by Brazil and Germany -- endorses Special Rapporteur for #privacy vs #spying: t.co/gzVPtd7QtE