Last week we were reminded by the Miami Herald that Guantánamo is not on the agenda for the forthcoming presidential election. In 2008, Barack Obama was preparing to order the prison’s closure, but his executive order in January 2009 promising to close it within a year failed to lead to the prison’s closure. This time around the Democrats’ official message is more nuanced. “We are substantially reducing the population at Guantánamo Bay without adding to it,” their official literature proclaims. “And we remain committed to working with all branches of government to close the prison altogether because it is inconsistent with our national security interests and our values.”
Mitt Romney also has not spoken about Guantánamo on the campaign trail, although in 2007, when he was unsuccessfully seeking the Republican nomination, he said during a debate on Fox News that “we ought to double Guantánamo.”
Sad to say, although Guantánamo has dropped off the radar, despite being a permanent source of shame for all Americans who respect the rule of law, torture, it seems, is back as a topic of discussion.
When Obama promised to close Guantánamo on his second day in office, he also issued an executive order banning the use of the torture techniques introduced by George W. Bush in the wake of the 9/11 attacks, ordering interrogators to return to the established, nonabusive techniques in the Army Field Manual.
Despite that, Obama has been a disappointment for those concerned to thoroughly repudiate the lawlessness of the Bush years. The Army Field Manual contains an appendix allowing torture techniques to be used in certain circumstances, and there have been regular stories of the ill treatment of certain prisoners in Afghanistan.
Moreover, although Obama backed away from the already discredited program of extraordinary rendition and secret CIA torture prisons introduced by Bush, he has largely replaced it with a policy that involves a secret “kill list” and drone attacks in numerous locations — including the assassination of U.S. citizens — that has, understandably, attracted widespread criticism. He has also retained military commissions at Guantánamo and the USA PATRIOT Act at home; and by failing to close Guantánamo, he has normalized the concept of indefinite detention.
Even so, as the New York Times explained on Saturday, “Mr. Romney’s advisers have privately urged him to ‘rescind and replace President Obama’s executive order’ and permit secret ‘enhanced interrogation techniques against high-value detainees that are safe, legal and effective in generating intelligence to save American lives,’” according to a policy proposal drafted in September 2011 by 18 advisors. Those advisors include Michael Chertoff, secretary of Homeland Security under Bush and the co-author of the PATRIOT Act, and Charles “Cully” Stimson, who was deputy assistant secretary of Defense for Detainee Affairs under Bush.
Most alarming, another of the advisors is Steven Bradbury, who was the head of the Justice Department’s Office of Legal Counsel (OLC) under Bush after Jay S. Bybee and Jack Goldsmith. The OLC is supposed to provide impartial legal advice to the executive branch; but under Bush, John Yoo, a lawyer in the OLC (and a law professor at Berkeley) who was close to Dick Cheney and his senior lawyer, David Addington, cynically approved the Bush administration’s torture program in a series of memos signed by his boss, Jay S. Bybee (now a judge in the Ninth Circuit Court of Appeals), which will forever be known as the “torture memos.” Although Goldsmith rescinded them, Bradbury largely approved Yoo’s and Bybee’s dangerous aberrations from the law in an additional series of “torture memos” for the CIA issued in May 2005.
As the New York Times explained, Bradbury “took a fresh look at CIA interrogation tactics and reapproved them as not violating an antitorture statute, even when combined.” He “also concluded that they did not violate a more sweeping prohibition on ‘cruel, inhuman, and degrading treatment’” established in the UN Convention against Torture, which was signed by Ronald Reagan in April 1988 and ratified by the Senate in October 1990.
Details of what Mitt Romney specifically thinks about torture are largely unknown, although last December, in Charleston, South Carolina, he promised, “We’ll use enhanced interrogation techniques which go beyond those that are in the military handbook right now.” He also stated that he would “not authorize torture,” but told a reporter that he did not think waterboarding — used under Bush — was torture. Waterboarding is, of course, an ancient torture technique that involves controlled drowning, so Romney’s stance is not encouraging.
What is particularly troubling is that Romney’s advisors are so poisonously pro-torture: they wrote in their policy brief that it was not possible to state which techniques he should approve, because more research needed to be undertaken. That was not because torture is illegal, immoral, and counterproductive, but because, in their opinion, Obama had “permanently damaged” the value of some of the techniques when, in April 2009, as part of a court case, he released a series of “torture memos” — the Bradbury memos from 2005 and a previously unreleased Yoo and Bybee memo from August 2002.
Unfortunately, while the Obama administration has openly stated that waterboarding is torture, the majority of the mainstream media — the New York Times included — have failed to take the necessary moral stand in their reporting. Although the article last week by Charlie Savage was important, its tone, as dictated by the Times’s house style, was as coy about torture as the paper has been since the use of torture was first revealed under George W. Bush.
After noting that “Bush administration lawyers approved as legal, despite antitorture laws, such tactics as prolonged sleep deprivation, shackling into painful ‘stress’ positions for long periods while naked and in a cold room, slamming into a wall, locking inside a small box, and the suffocation tactic called waterboarding,” the article proceeded to explain that, when information about the torture program surfaced, it “ignited a heated debate that continues to flare.”
“The policy’s supporters say they were lawful and extracted valuable information that helped save lives,” the Times continued. On the other hand, “Critics contend that they were illegal and damaged the United States’ moral standing, and that the same or better information could have been obtained with nonabusive tactics.”
One can only wonder what hope there is for torture to be thoroughly repudiated when, even in an important exposé of a presidential candidate’s being given advice about torture by his advisors (some of whom are implicated in the Bush-era torture program), waterboarding is referred to only as a “suffocation tactic,” and critics of the program are allowed only to “contend” that the techniques used were torture, and that torture is illegal — as well as being immoral and counterproductive.
The Times was correct to note that no information was obtained through the use of torture that could not have been obtained through nonabusive means. Even so, torture will continue to rear its ugly head while those who should know, unambiguously, what it is — lawmakers, lawyers and newspaper editors, for example — continue to duck the issue.
