The Cancer of Democracy

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.”


Obama Through the Looking Glass

The withdrawal of Dawn Johnsen’s nomination to Head the Office of Legal Counsel (OLC) at the Department of Justice in the same week that the White House publicly authorized the targeted killing of US national Anwar al-Awlaki marks a new low in the human rights record of the Obama administration.

Dawn Johnsen was acting Head of the OLC during the Clinton administration and is a respected law professor at Indiana University. No aspersions have been cast on her past performance in government or on her legal competence.

The principal complaint made against Johnson’s candidacy was that she raised her voice in protest at the Bush administration’s attempt to provide legal cover for torture. It was insinuated that this might make her soft on terrorism.

Johnsen’s withdrawal came within days of an appearance of the Head of the CIA’s National Clandestine Service, Michael Sulick, at an event at Fordham University. In response to a question regarding the possible impact of the Obama administration’s prohibition on waterboarding Sulick commented:

“I don’t think we’ve suffered at all from an intelligence standpoint.”

So it would seem Johnsen’s stand was both principled and practical but rather than make this case both the Obama administration and Congressional Democrats opted instead to abandon her to the wolves.

What a contrast to the steadfast protection the principal authors of the torture memos, John Yoo and Jay Bybee, have received from the White House over the past fifteen months.

The President has resolutely stood fast against calls for a wide-ranging investigation into the torture practices of the Bush administration. A damning disciplinary report by the Department of Justice’s Office of Professional Responsibility was watered down to the point of meaninglessness.

The world has surely gone crazy when morally bankrupt lawyers can pervert the law and go on to high paying jobs in academia and the judicial circuit, but an individual who had the moral courage to criticize their behavior when others about her were running for cover has her career cut short.

The past eight years demonstrated all too graphically how important an organ of government the Office of Legal Counsel is. It can be a bulwark for liberty or a powerful instrument for abuse.

This is not a position for a consensus builder or a political weathervane. It is a position that requires unimpeachable integrity. It is a position that should be filled by a candidate who stood up for what was right when it was unfashionable to do so.

There are not many names left on that list.

Republicans Protest Too Much

Right-wing Republicans have reportedly been mobilizing to block the appointment of two prominent lawyers to advisory positions in the Obama administration: Indiana University constitutional law Professor Dawn Johnsen and the Dean of the Yale Law School Harold Koh.

Johnsen is the administration’s nominee to head for the Office of Legal Counsel in the Department of Justice and Koh is nominated to be the Legal Counsel at the State Department. Both have a strong human rights record, Johnsen was Legal Director of the National Abortion & Reproductive Rights Action League and Koh served as Assistant Secretary of State for Democracy, Human Rights and Labor in the Clinton administration. Both have distinguished records of government service.

The legal commentator Scott Horton has cited anonymous sources in the GOP and DoJ who claim Senate Republicans are now threatening to filibuster the appointments unless the Obama administration agrees not to release three classified memos authored by one of John Yoo’s successors in the Office of Legal Counsel, Steven Bradbury.

The memos, which have been described by Glenn Greenwald on as the “Rosetta stone” for documenting war crimes committed by the highest-level Bush DoJ officials, have been the subject of a determined legal effort by the ACLU to compel their disclosure. This effort has so far been opposed by the Obama administration despite its avowed commitment to transparency in government.

So, why not strike a deal? Because we still have not got to the bottom of what happened in our name. New information continues to emerge on an almost weekly basis. On Monday we saw the release of more material from the leaked International Committee of the Red Cross report on the treatment of High Value Detainees in CIA custody which revealed in detail for the first time the direct complicity of medical personnel in acts of torture in complete violation of the most basic of medical ethics.

This drip-drip of revelations is harmful in itself, undermining attempts to restore legitimacy to America’s struggle with terrorism. This will only end when there are no more revelations to emerge and that is why a full accounting for the abuses that have occurred since September 11th is so important. As is a renewed commitment to using the criminal justice system to fight terrorism rather than the ‘dark arts’ in which former Vice President Dick Cheney placed so much faith.

Holding ourselves to higher standard makes us smarter and more effective. The simple arithmetic regarding the number of releases without charge from Guantanamo makes it clear that with the ‘gloves off’ US officials were wrong about a detainee’s affiliations far many more times than they were right. We can do better than that.