GOP 'Torture Debate' and Obama's Failure to Prosecute

Troubling comments within the GOP presidential field over whether to reinstate torture and implement other war crimes have been drawing criticism lately, with the 2008 Republican presidential nominee, Arizona Senator John McCain, even feeling compelled to weigh in last week by calling out the "loose talk" in the Republican primaries.

On Feb. 9, McCain took the Senate floor to condemn remarks by his Republican colleagues regarding the use of torture, saying that "these statements must not go unanswered because they mislead the American people about the realities of interrogation, how to gather intelligence, what it takes to defend our security and at the most fundamental level, what we are fighting for as a nation and what kind of nation we are."

McCain's remarks were a welcome breath of sanity in a Republican presidential race that has recently been dominated by discourse that sounds much like a warped competition to see who would be the most brutal and lawless in the treatment of suspected terrorists. The televised debate on Feb. 6, for example, featured candidates Marco Rubio, Ted Cruz and Donald Trump vying for the "tough guy" vote, each expressing varied levels of support for waterboarding and other discredited "enhanced interrogation techniques."

While Cruz said that he would support waterboarding in limited circumstances, Trump pledged to not only reintroduce the technique in a widespread way, but also introduce even more draconian torture practices if elected: "I would bring back waterboarding, and I would bring back a hell of a lot worse than waterboarding," he said.

Rubio also reiterated his support for waterboarding, saying that terrorism cases should not be held to the same humane legal standards of traditional law enforcement. "Well, when people talk about interrogating terrorists, they're acting like this is some sort of law enforcement function," he said. "Law enforcement is about gathering evidence to take someone to trial, and convict them. Anti-terrorism is about finding out information to prevent a future attack so the same tactics do not apply."

Taking this to its logical conclusion, what Rubio seems to be saying is that it is perfectly permissible to detain individuals suspected of ties to terrorism, without due process (or evidence), torture them into providing information, which may or may not be true - including perhaps identifying other suspected terrorists - in an endless process of extra-legal detention and torture that produces neither actionable intelligence nor evidence that can be used in a court of law.

It was precisely this sort of strategy that led to at least 26 of 119 detainees being wrongfully held and tortured in the CIA's rendition program under George W. Bush, according to the Senate report on torture that was released in late 2014. (When asked about this later, former Vice President Dick Cheney coldly stated that he's "more concerned with bad guys who got out and released than I am with a few that, in fact, were innocent.")

This mentality of endless detention and interrogation is also largely responsible for the legal abomination of Guantanamo, and has complicated President Obama's efforts in shuttering the prison. Because so much of the evidence against the detainees is tainted by torture, the evidence is inadmissible in court, making it impossible to bring them to trial in the United States.

But Rubio - along with other Republican candidates - has made it clear that it is a mistake to close the Guantanamo prison, which for 14 years has served as a legal black hole where detainees are denied the rights and protections they would be given by the Geneva Conventions or the Bill of Rights.

Rather than shuttering the prison, Rubio argued that it should be kept open indefinitely: "Here's the bigger problem with all this," he said. "We're not interrogating anybody right now. Guantanamo's being emptied by this president. We should be putting people into Guantanamo, not emptying it out, and we shouldn't be releasing these killers who are rejoining the battlefield against the United States."

In an earlier presidential debate, Rubio made clear that under his administration, indefinite detention and torture would be most welcome. "If we capture terrorists," he said, "they're going to Guantanamo, and we will find out everything they know."

As for Trump, when he was pressed on his statements about bringing back waterboarding and devising even more brutal torture methods, he decided to double down rather than backtrack.

On Feb. 7, the real-estate-mogul-turned-reality-TV-star-turned-presidential-contender appeared on "This Week" with George Stephanopoulos. "As president, you would authorize torture?" Stephanopoulos asked Trump.

"I would absolutely authorize something beyond waterboarding," Trump said. "And believe me, it will be effective. If we need information, George, you have our enemy cutting heads off of Christians and plenty of others, by the hundreds, by the thousands."

When asked whether we "win by being more like them," i.e., to mimic the tactics of Islamic State terrorists, Trump stated flatly, "Yes."

"I'm sorry," he elaborated. "You have to do it that way. And I'm not sure everybody agrees with me. I guess a lot of people don't. We are living in a time that's as evil as any time that there has ever been. You know, when I was a young man, I studied Medieval times. That's what they did, they chopped off heads."

"So we're going to chop off heads?" Stephanopoulos asked.

"We're going to do things beyond waterboarding perhaps, if that happens to come," Trump replied.

Trump has even insinuated that Cruz is a "pussy" for hinting that he might show some degree of restraint in the use of torture. With this kind of talk, it's clear that on the Republican side, the discussion has gone off the rails, leading several human rights groups to remind the U.S. of its moral and legal obligations not to engage in sadistic and cruel practices such as waterboarding.

"Waterboarding meets the legal definition of torture, and is therefore illegal," recalled Human Rights First's Raha Walla on Feb. 11. "Torture under U.S. and international law means acts that cause severe mental or physical pain or suffering. There's no question that waterboarding meets that definition."

Amnesty International's Naureen Shah also issued a rebuttal to the debate over waterboarding, which she described as "slow-motion suffocation." She pointed out the obvious that "the atrocities of the armed group calling itself Islamic State and other armed groups don't make waterboarding okay."

What the current "debate" over bringing back torture highlights, however, besides how perverse the Republican dialogue has become, is why prosecutions of the Bush-era CIA torture program are essential, and why it is so damaging that the Obama administration has shirked its responsibilities in this regard for more than seven years.

As human rights advocates have long maintained, prosecuting Bush administration and CIA officials involved with the torture of terrorism suspects in the post-9/11 period is needed so that torture is not repeated in the future by subsequent administrations who - because of previous decisions not to prosecute - may consider themselves above the law.

Indeed, this is precisely why there is a requirement under international law for allegations of torture to be investigated and prosecuted - so that torture does not become a "policy option" to be utilized or shelved depending on the political whims of the day.

This is a point that Amnesty International, for one, drove home following the release Senate's CIA torture report in December 2014. In a statement entitled "Senate summary report on CIA detention programme must not be end of story," Amnesty lamented that limited Justice Department investigations into CIA interrogations were ended in 2012 with no charges.

Human Rights Watch concurred, noting that unless the release of the Senate report leads to prosecutions, torture will remain a "policy option" for future presidents.

The UN Special Rapporteur on Human Rights and Counterterrorism Ben Emmerson stated unequivocally that senior officials from the Bush administration who sanctioned crimes, as well as the CIA and U.S. government officials who carried them out, must be investigated and prosecuted.

"It is now time to take action," Emmerson said on Dec. 9, 2014. "The individuals responsible for the criminal conspiracy revealed in today's report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes. The fact that the policies revealed in this report were authorized at a high level within the U.S. government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability."

International law prohibits the granting of immunity to public officials who have engaged in acts of torture, Emmerson pointed pout. He further emphasized the United States' international obligation to criminally prosecute the architects and perpetrators of the torture methods described in the report:

"As a matter of international law, the U.S. is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes."

Zeid Raad al-Hussein, the UN High Commissioner for Human Rights, said that it's "crystal clear" that the United States has an obligation under the UN Convention against Torture to ensure accountability.

"In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture -- recognized as a serious international crime -- they cannot simply be granted impunity because of political expediency," he said.

UN Secretary-General Ban Ki-moon expressed hope that the release of the torture report was the "start of a process" toward prosecutions, because the "prohibition against torture is absolute," Ban's spokesman said.

Needless to say, these appeals largely fell on deaf ears, with no criminal investigations launched whatsoever. Instead, the U.S. Congress responded with a symbolic "reaffirmation" of the ban on the torture - a largely redundant and unnecessary piece of legislation since torture has long been unambiguously banned under international law, the United States Constitution and U.S. criminal statutes.

For his part, Obama used the publication of the Senate report as an opportunity to tout the virtues of the United States, and actually praised the CIA for its professionalism in carrying out its responsibilities.

Following the publication of the Senate report, in a statement obliquely trumpeting the notion of "American Exceptionalism," Obama said: "Throughout our history, the United States of America has done more than any other nation to stand up for freedom, democracy, and the inherent dignity and human rights of people around the world." He went on to offer a tacit defense of the torture techniques while touting his own virtue in bringing these policies to an end.

"In the years after 9/11, with legitimate fears of further attacks and with the responsibility to prevent more catastrophic loss of life, the previous administration faced agonizing choices about how to pursue al Qaeda and prevent additional terrorist attacks against our country," he said. Although the U.S. did "many things right in those difficult years," he acknowledged that "some of the actions that were taken were contrary to our values."

"That is why I unequivocally banned torture when I took office," Obama said, "because one of our most effective tools in fighting terrorism and keeping Americans safe is staying true to our ideals at home and abroad."

He went on to claim that he would use his authority as President "to make sure we never resort to those methods again."

But clearly, by blocking criminal investigations into the policy's architects, Obama has done very little in a practical sense to ensure that those methods are not used again.

In an op-ed published by Reuters following the release of the Senate report, Human Rights Watch director Kenneth Roth called out the President for "steadfastly refus[ing] to permit a broad investigation of the use of torture after 9/11, allowing only a narrow investigation into unauthorized interrogation techniques that resulted in no prosecutions."

Unless the Senate report's revelations lead to prosecution of officials, torture will remain a "policy option" for future presidents, noted HRW.

This is exactly what we are seeing play out today with the "loose talk," as McCain calls it, regarding bringing back torture as official U.S. policy.

Following the one-year anniversary of the Senate torture report being released, Human Rights Watch reiterated its calls for prosecutions in a 153-page report, "No More Excuses: A Roadmap to Justice for CIA Torture." The HRW report, released Dec. 1, 2015, challenges claims that prosecutions are not legally possible and outlines U.S. legal obligations to provide redress to victims of torture. It also details actions that other countries should take to pursue criminal investigations into CIA torture.

Of course, this report, like virtually all other calls for justice on the torture question over the past seven years, has been studiously ignored by official Washington. And with the Republicans now falling over each other to pledge their support for illegal policies of torture and brutality, we are seeing the fruits of Obama's refusal to uphold the laws of the land.