(Kenneth Roth is executive director of Human Rights Watch. The opinions expressed here are those of the author.)
By Kenneth Roth
(Reuters) – The publication of the long-awaited summary of the Senate Intelligence Committee report on the CIA’s torture provides a useful moment to consider the lessons learned from this sorry chapter in American history and the steps that might be taken to avoid its recurrence. With the truth now told about this blatantly illegal policy, President Barack Obama has a chance to reverse his misguided refusal to prosecute the officials who authorized the torture, ending the impunity that sets a horrible precedent for future United States presidents and governments worldwide.
There will undoubtedly be much debate about its finding that torture did not “work” – that it produced little if any intelligence of value that was not or could not have been obtained by lawful means. It is disappointing that the nation must even have this discussion, given the strength of the legal and moral prohibitions of torture and other ill-treatment. The Geneva Conventions, for example, forbid them absolutely, even in time of war. But when facing a serious security threat such as the September 11, 2001 attacks, it can be tempting to rationalize the illegal and immoral as necessary, so this finding is important.
The CIA vehemently contests this conclusion. It insists that torture – or, to use its preferred euphemism, “enhanced interrogation techniques” – did produce actionable intelligence, but of course it cannot tell us the details because they are classified. Yet it should give us pause that a majority of the Senate Intelligence Committee, as well as respected senators on both sides of the aisle, concluded that torture was ineffective, while the greatest proponents of its utility were the torturers themselves. The disputed pragmatic argument provides a weak rationale to breach so fundamental a prohibition as the ban on torture.
The CIA also objects to any after-the-fact suggestion that its enhanced interrogation techniques constituted torture. It argues that it was entitled to rely on legal opinions issued by the Justice Department’s Office of Legal Counsel asserting that these techniques were not torture. But the Senate report shows those techniques to have been harsher and more brutal than the CIA revealed at the time, and it has previously been shown that the CIA had begun using many of those techniques even before the OLC opinion.
Moreover, anyone who reads the notorious “torture memos” readily sees them as strained, intellectually dishonest attempts to justify the unjustifiable. Their aim was to lay the foundation for precisely the legal defense to torture that the CIA now advances – that it relied on legal advice from the authorized executive branch office, so it is unfair to second-guess it now. But any soldier in wartime knows it is wrong to follow a blatantly illegal order. The CIA’s leadership should have done no less.
Still, it is regrettable that those senior George W. Bush administration lawyers have escaped accountability for their complicity in torture, given their obligation as public officials and their ethical duty as lawyers to uphold the law. Their opinions were not reasonable interpretations of an ambiguous legal provision but a premeditated cover for criminality. At minimum, they should have been disciplined for malpractice, if not prosecuted as accomplices.
