Preventing Torture

After all the battles over redaction in the Senate Intelligence Committee torture report, we should keep one thing in mind: this is not, primarily, a battle over information.

Having sat for many years across many tables from many of the ‘folks’ the US tortured in the global ‘war on terror,’ men like Murat Kurnaz and Mohammed al-Qatani, and having heard first-hand their stories of being beaten, hung from ceilings, sexually assaulted, exposed to extreme temperatures, deprived of sleep, and subjected to numerous other brutal acts, my colleagues and I at the Center for Constitutional Rights can assure you: the important thing about the torture report is not just what we learn from it — it is what we do about it.

Discussing the report at a news conference last summer, after acknowledging that “we tortured some folks,” Obama admonished us: “It’s important … to recall how afraid people were” after the attacks of 9/11 and “not …feel too sanctimonious in retrospect.” At the same time, he continued, we should measure ourselves “not by what we do when things are easy, but what we do when things are hard.”

Obama’s right. And that is precisely why those who authorised, committed, and covered up the torture programme – in plain violation of US and international criminal law – should be prosecuted.

Time and again, Obama has come to the opposite conclusion. The president continues to rely on an empty aspiration: “Hopefully,” Obama concluded, “we don’t do it again.”

‘Hope’ is not a sufficient deterrent to those in power who may see future, extraordinary events as license to repeat atrocities. Recalling how afraid people were is important not because we should understand and accept what happened, but in order to make sure our leaders won’t resort to brutal, illegal acts the next time we are afraid. We may even need to introduce another fear into the equation: the fear of severe consequences for officials who would torture in our name.

The United Nations Convention Against Torture (CAT), which the United States ratified in 1991, recognizes that prosecuting past torture is essential to preventing it in the future.

The US, too, recognised the absolute necessity of prosecutions for torture – at least when it did not imagine it was speaking about its future self – stepping forward during the drafting of the CAT to defend the convention’s proposed universal jurisdiction provision, which allows torturers to be prosecuted anywhere in the world.

It is this same universal and obligatory prohibition against torture that authorises foreign nations to exercise their ‘universal jurisdiction’ to prosecute US officials in foreign courts.

A culture of impunity erases distinctions between the ordinary and the extraordinary, institutionalising grave wrongs. This is what has happened in the post-9/11 United States.

The notion that torturers should be shielded from any consequences for their actions only makes sense in a society in which human rights and constitutional protections have been demoted.

It is a culture that gave rise not only to impunity for torture, but also to the brazenness with which the CIA hacked Senate Intelligence Committee computers, the imperiousness with which Director of National Intelligence James Clapper lied to Congress, and the audacity with which President Obama refuses to fire either him or CIA Director John Brennan for these plainly illegal acts.

Hope for future good intentions cannot compete with a solidified expectation of impunity. We can start by prosecuting those who planned, inflicted, and covered up torture.

By: Baher Azmy