In the face of overwhelming evidence that numerous US detainees were tortured during the Bush years, President Barack Obama has famously said he wants to “look forward, not back.” He prohibited the use of torture and cruelty in one of his first executive acts, but since then he has consistently resisted all efforts to hold accountable those who, under the prior administration, authorized such mistreatment. He has opposed a commission of inquiry, failed to order a criminal investigation of high-level officials who authorized—and concocted legal justifications for—torture, and successfully defeated all suits seeking damages for victims. Unacknowledged guilt, however, has a stubborn way of sticking around. In recent days, torture has been back in the national conversation, raising once again the issue of what we (and others) should do about it.
First came the news that former President George W. Bush, in his memoir, Decision Points, admitted that he personally authorized the waterboarding of Khaled Sheikh Mohammed. (“Damn right,” the former president said he answered CIA director George Tenet, when Tenet asked whether it was okay to use this and other “enhanced interrogation techniques” on KSM.) Bush’s startling admission that he ordered a war crime appears to reflect a calculated judgment that President Obama’s unwillingness to look back will protect the former president from any investigation or prosecution. And if the president himself admits he did it and gets away with it, how can the government hold accountable anyone under him?
Then came the announcement on November 16 that the United Kingdom has agreed to pay former Guantánamo detainees who are British citizens or residents millions of pounds in damages to settle lawsuits alleging British complicity in the men’s torture. The men describe being tortured at CIA black sites, at Guantánamo, and in third countries to which the CIA delivered them. The UK did not order or conduct the torture itself, nor deliver the men to their torturers; its involvement seems to have been limited to awareness that coercive interrogations were taking place and possibly providing lines of questioning to the interrogators. Yet the UK is willing to pay millions in damages for its part in the wrongs done.
Ken Clarke, the UK’s Secretary of State for Justice, explained that the government sought to avoid a court order that it disclose hundreds of thousands of documents, many of which contained confidential information—and presumably much of which might implicate not only officials of MI5 and MI6, but also their interlocutors in the CIA. A cynic might argue that the settlement is less a reflection of accountability than a willingness to pay millions of pounds to avoid accountability. But in July, Prime Minister David Cameron ordered an official inquiry into charges of Britain’s complicity in torture, and appointed a retired appeals judge, Sir Peter Gibson, to run the inquiry. As with the Canadian government, who investigated and paid compensation for their complicity in the rendition and torture of Maher Arar, the British, it appears, are not afraid to look back, or to compensate victims of torture.
News of the British settlement was followed a day later, November 17, with another form of accountability in New York. In the first civilian criminal trial of a former Guantánamo detainee, a federal jury in Manhattan acquitted Ahmed Khalfan Ghailani of all but one count of conspiracy in a case involving 285 criminal charges of murder and conspiracy related to the 1998 bombings of US embassies in Kenya and Tanzania, which killed 242 persons. Although the other charges were not upheld, Ghailani was convicted of conspiracy to destroy government buildings and property, for which he can be sentenced 20 years to life in prison.
Judge Lewis Kaplan eloquently praised the jury for showing that “American justice can be rendered calmly, deliberately, and fairly by ordinary people, people who are not beholden to any government, not even ours.” But the right wing saw it differently. Liz Cheney’s group, Keep America Safe, charged that “the Obama Administration recklessly insisted on a civilian trial for Ahmed Ghailani, and rolled the dice in a time of war.” In fact, Ghailani will be in prison for many years to come, and perhaps for life, for the one count on which he was convicted, and in any event could also continue to be detained militarily as an enemy combatant if evidence demonstrates that he was a part of al Qaeda’s fighting force and poses a risk of returning to the battlefield.
The real dice-rollers were those, including Liz Cheney’s father, former vice president Dick Cheney, who chose to authorize illegal torture tactics in interrogations that would taint any information gleaned from detainees and greatly complicate any future prosecutions. The most likely reason that Ghailani was acquitted of the other charges was that the judge barred the prosecution from putting on its chief witness—who would have testified that he sold Ghailani the TNT used to blow up the embassy in Tanzania—because the government learned of that witness only through statements obtained from Ghailani while he was being tortured in a CIA black site. Ghailani reportedly also confessed to his role in the bombings during interrogations at the black site and at Guantánamo, but that confession also could not be used because of the CIA’s illegal tactics. The same result would have been obtained in a military trial, as involuntary confessions are inadmissible in both forums. The problem with the Ghailani case, in other words, was not the civilian versus military character of the courtroom, but the fact that the Bush administration tortured him.
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The Ghailani verdict is a kind of accountability. We are paying for the torture we chose to inflict. But it’s deeply unsatisfactory. The torturers—President Bush, Vice President Cheney, Attorney General John Ashcroft, Director of Central Intelligence George Tenet, and Justice Department lawyers John Yoo and Jay Bybee, to name just a few—are not held responsible. They remain free to travel the lecture circuit and publish books bragging about their crimes. It is the families of victims of the embassy bombings who must pay the price—in foregone justice—for the crimes the Bush administration perpetrated in its “war on terror.”
It turns out that looking forward, not back, will never resolve the torture legacy. Until we own up to and provide a reckoning for the moral and criminal wrongs committed by officials at the very highest levels of the former administration, the fact that we tortured will continue to fester—and cause problems for its successor. The prevailing view in Washington seems to be that we should move on, but such wrongs cannot be forgotten. Try as we might to ignore it, the fact that we tortured and did nothing about it will periodically raise its head—in a failed prosecution, a foreign court judgment, or a terrorist incident inspired by images from Abu Ghraib. And even when it does not manifest itself so dramatically, the fact that the president of the United States was able to order torture, boast about it in a best-selling book, and walk way scot-free will fuel a deep vein of worldwide resentment. Torture and its after-effects will be with us until we are willing to confront them head-on.
