To Prevent Torture, Prosecute 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 U.S. 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 authorized, those who committed, and those who covered up the torture program - in plain violation of U.S. and international criminal law - should be prosecuted.

Time and again, Obama has come to the opposite conclusion. Rather than dealing meaningfully with crimes committed in the midst of the immense fears and intense pressures of extraordinary times, 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 to check our worst impulses: 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 CAT requires that all acts of torture be prosecuted and permits "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency ... as a justification of torture." The U.S., too, recognized 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 authorizes foreign nations to exercise their "universal jurisdiction" to prosecute U.S. officials in foreign courts - proceedings that CCR has initiated or joined in Switzerland, Spain, Germany, France, and Canada. Prosecuting those who tortured during past extraordinary times is not sanctimony, it is accountability - because we cannot know what any of our future selves might do during extraordinary times if we come to expect impunity.

A culture of impunity erases distinctions between the ordinary and the extraordinary, institutionalizing grave wrongs. This is what has happened in the post-9/11 United States, in which drone strikes, indefinite detention without charge, government surveillance, and religious and racial profiling are normalized.

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 - no longer our highest values, they are now repeatedly expendable whenever the specter of "national security" is raised. 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. Reorienting our institutions toward accountability is a fundamental prerequisite to preventing future criminality. We can start by prosecuting those who planned, inflicted, and covered up torture. If we do not, the time will surely come when U.S. officials have to answer to foreign countries for violations of the universal crime of torture. One way or another, grave crimes cannot go unpunished.