This afternoon President Obama said four words that should matter:"we tortured some folks."
His candor is consistent with the position he has taken on waterboarding in the past. But it unequivocally acknowledges that American citizens—either employees of the CIA or contractors working for the agency—broke the law. Specifically: the federal anti-torture statute. Congress passed this law in 1994 after the U.S. became a signatory of the Convention Against Torture. In 2008, the Department of Justice obtained its first conviction under the law in the Chucky Taylor case, which I covered at the time and write about in my book.
The fact that Taylor’s case was the first prosecution under the law, particularly at a moment when the CIA’s destruction of interrogation tapes raised the specter that agency employees had committed crimes worthy of covering up, appeared to send a message: what happens under regimes we don’t like in Africa is torture; what Americans do is something fundamentally—and legally—different.* That, of course, is untrue. It was long before President Obama acknowledged it.
But, will DOJ step up to the plate? In the past the Obama administration has made it clear that it had no appetite for bringing American torturers to account. Yet after revelations this week that the CIA spied on Congressional investigators looking into the enhanced interrogation program—a violation of federal law—and even filed a false complaint to federal prosecutors about the conduct of the investigators, there’s the distinct appearance that the CIA does not take federal law seriously. Or they see DOJ as toothless on the issue of torture. I imagine there are a few AUSA’s in the Northern District of Virginia or elsewhere interested in proving them wrong—provided they could get the nod from their superiors. A vigorous investigation of American human rights and domestic surveillance crimes would send a clear message about rule of law and prosecutorial independence in the United States. That’s probably not the message the White House would like to send before midterms.
The president’s words wont represent progress if there is no action. Otherwise, his opinion on the issue of whether the enhanced interrogation program constituted torture is just that: an opinion. The opinion I’m more interested in hearing isn’t in the White House, though. It’s in the jury box.
* It bears mentioning that the person most enervated by this is Chucky Taylor. This is completely understandable. DHS and DOJ brought to bear considerable resources to ensure that he never see the light of day again—pursuing crimes that involved no U.S. citizens, other than himself and required travel throughout West Africa, Europe and the United States to gather evidence. During the trial, witnesses for both the prosecution and defense were paroled in and housed in Miami at considerable expense—and some risk—to the U.S. taxpayer. Considerably less effort could be spent meeting witnesses in northern Virginia, Tampa and elsewhere in the U.S. to assess the viability of an “enhanced interrogation” torture prosecution.