A key part of President Barack Obama’s legacy includes the administration’s refusal to prosecute any officials from President George W. Bush’s administration for torture.
While professing “nobody is above the law,” Obama made “looking forward” instead of “looking backwards” widespread government policy.
His administration conducted reviews of detention and interrogation practices, however, Obama and Attorney General Eric Holder would not push for torture prosecutions, despite mountains of evidence that brutality was committed against detainees.
On December 5, 2016, a report [PDF] was released summarizing the “legal and policy frameworks” the administration relied upon in pursuing war. The second half of the report featured a section on the “treatment of armed conflict detainees.” It stated unequivocally, “Torture and cruel, inhuman, or degrading treatment or punishment are categorically prohibited under domestic and international law, including international human rights law and the law of armed conflict.”
The report from the Obama administration presented policies as constrained and legal in order to guard against concerns that it will bear some responsibility when President-elect Donald Trump abuses executive power. However, the administration granted impunity to officials responsible for torture and let them write books and tour the country, where they argued torture techniques were effective and justified.
Trump praised waterboarding and other forms of torture during his presidential campaign. He declared, “Torture works.” He pledged to use torture techniques that are worse than waterboarding.
Unfortunately, the Obama administration had plenty of opportunity to hold officials accountable and ensure a president like Trump could not bring back torture. Instead, it actively fought in court to prevent survivors of torture from pursuing civil lawsuits for damages and some small semblance of justice. The administration also permitted cruel, inhuman, or degrading treatment that is supposed to be prohibited by domestic and international law.
No Criminal Prosecutions For Torture
Obama issued an executive order in his first days in office that was aimed at prohibiting torture. It limited interrogations to techniques in the Army Field Manual. However, the United Nations’ Committee Against Torture expressed concerns that Appendix M of the manual allowed sleep deprivation and the “prolonging” of the “shock of capture by applying goggles or blindfolds and earmuffs to generate a perception of separation,” which can create a “state of psychosis.”
Although he sought to constrain what torture techniques the Central Intelligence Agency could employ, Obama preserved rendition after the agency’s top lawyer John Rizzo, worried the executive orders would take the CIA out of the “rendition business.” Obama redefined “detention facility” to exclude places holding people “on a short-term, transitory basis.”
Senate Democrats, like Sen. Dianne Feinstein, pressed for investigations into how Vice President Dick Cheney kept information about the torture program from Congress. Feinstein and other senators eventually undertook an effort to put together a study of the CIA rendition, detention, and interrogation program. Holder appointed federal prosecutor John Durham to investigate whether CIA interrogations broke the law. But Obama remained extremely reluctant to pursue criminal investigations against former Bush administration officials for torture.
In June 2011, Durham decided—out of 101 detainee cases—only the death of two individuals in U.S. custody at overseas locations warranted the opening of “full criminal investigations.” And by August 30, 2012, those criminal investigations were closed with the Justice Department declining to prosecute any officials.
The Obama administration was faced with evidence that the CIA destroyed 92 videotapes of interrogators employing torture techniques against Abu Zubaydah and Abd al-Rahim al-Nashiri. It chose not to file charges against any CIA officials, including Jose Rodriguez, who served as the head of the CIA’s Counterterrorist Center and approved the destruction of videotapes.
Opposing Torture Survivors Who Brought Cases Against The Government
Ethiopian native Binyam Mohamed was rendered from Pakistan to Morocco on an aircraft, which received flight and logistical support services from Jeppesen Dataplan, Inc., according to the American Civil Liberties Union. Mohamed was handed over to interrogators in Rabat, Morocco, where he was detained and tortured for eighteen months. He was routinely beaten, “sometimes to the point of losing consciousness.”
Mohamed “suffered multiple broken bones.” His genitals were once “cut 20 to 30 times.” In another instance, “Hot stinging liquid was poured into open wounds on his penis as he was being cut.” He was threatened with rape, electrocution, and death, forced to listen to loud music for long periods of time, and “placed in a room with open sewage for a month.” He also was “drugged repeatedly.”
The ACLU brought a case on behalf of him and other survivors of the CIA’s rendition program. The Bush administration argued the lawsuit could not be litigated because “state secrets” would be revealed. A district court dismissed it in February 2008 after a motion from the government.
Obama had an opportunity to take a different tack on civil lawsuits brought by torture survivors alleging wrongdoing against the U.S. government. Yet, his administration backed the district court’s decision and said it was “correct to deny the plaintiffs any opportunity to present their case in court.” The Ninth Circuit Court of Appeals ruled in favor of the torture survivors and “vacated the lower court’s decision.” The Obama administration requested reconsideration and convinced the appeals court to reverse the ruling in September 2010. (The Supreme Court refused to hear the appeal in 2011.)
Similarly, Canadian citizen Maher Arar brought a lawsuit against U.S. officials for his rendition to Syria, where he was tortured and held in a “grave-like underground cell” for ten months. The Obama administration stood with the Bush administration and opposed Arar’s pursuit of justice. The Supreme Court refused to hear Arar’s case in 2010.
Effectively, Obama lent credence to the notion that allowing torture survivors to have their day in court would endanger the country. It set a standard for the rest of his first term and his second term as president.
Supporting Force-Feeding, Which Amounted To Torture
The Obama administration fully backed the force-feeding of Guantanamo Bay prisoners, who engaged in a hunger strike in 2013.
A task force convened by the Institute on Medicine as a Profession (IMAP) and the Open Society Foundations characterized the use of force-feeding as torture and pointed out officials employed force-feeding to break political protest, not to protect prisoners from dying.
“The policy of force-feeding deviates from standard, accepted medical and ethical treatment of hunger strikers and, depending on the individual circumstances, amounts to either torture or inhuman and degrading treatment,” according to the task force.
In March 2013, the Joint Medical Group at Guantanamo Bay adopted a policy that medical professionals viewed as “even more punitive than those employed in the past.” It exacerbated features already in violation of international standards and entangled physicians and nurses in a “punitive approach to hunger strikes” that required them to “depart from duties of respect for patient autonomy,” which was unethical.
Guantanamo prisoner Samir Naji al Hasan Moqbel described how he felt force-feeding was killing him.
“During one force-feeding the nurse pushed the tube about 18 inches into my stomach, hurting me more than usual, because she was doing things so hastily. I called the interpreter to ask the doctor if the procedure was being done correctly or not,” Moqbel shared.
“It was so painful that I begged them to stop feeding me. The nurse refused to stop feeding me. As they were finishing, some of the “food” spilled on my clothes. I asked them to change my clothes, but the guard refused to allow me to hold on to this last shred of my dignity.”
According to the World Medical Association, “Forcible feeding is never ethically acceptable. Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading treatment. Equally unacceptable is the forced feeding of some detainees in order to intimidate or coerce other hunger strikers to stop fasting.”
The Obama administration brazenly flouted this medical standard.
Turning A Blind Eye To Torture Experiments On Detainees
There is ample evidence the prison camps at Guantanamo Bay were used as a “battle laboratory” by the Bush administration. Detainees were treated as “test subjects.” Medical personnel experimented to develop and perfect interrogation techniques, according to a report from the Seton Hall Law Center for Policy and Research.
Numerous detainees were drugged upon arrival to help interrogators break them. One prisoner, Mohammed al Qahtani, was treated like a “lab rat” and monitored closely by medical personnel to determine if his body could continue to be tortured.
The summary for the Senate intelligence committee’s study on the CIA torture program brought attention to the “unethical and illegal acts perpetrated by CIA health professionals,” which according to Physicians for Human Rights included: designing, directing, and profiting from torture, intentionally inflicting harm on detainees, calibrating levels of pain during torture, evaluating and treating detainees for the purpose of torture, and “human subjects research” to provide legal cover for torture.
One cruel technique was termed “rectal rehydration.” Medical personnel would insert a tube in the rectum of a detainee. Dr. Vincent Iacopino of PHR called it “sexual assault masquerading as medical treatment.” Its only purpose was to “inflict physical and mental pain.”
According to PHR, if human subjects research without consent took place systematically against detainees, that is a violation of the Nuremberg Code and would constitute a crime against humanity.
Faced with evidence of possible torture experiments on detainees, the Obama administration never reopened investigations. It never spoke out against the heinous possibility that the U.S. government experimented on human beings. It responded with a combination of silence and calculated indifference.
Backing A Torture State In Iraq
The Obama administration asserts it is careful in ensuring standards are upheld when partnering with countries in order to avoid “gross human rights violations.” Yet, in the case of Iraq, the administration maintained the sales of weapons to the Iraqi government as Nouri al-Maliki was known to promote a “culture of impunity” that protected security service members and government officials from investigations for torture.
A Human Rights Watch report released in 2014 documented the brutal abuse and torture of Iraqi women by the country’s criminal justice system. Convictions were obtained under torture. Trial proceedings were unfair and fell short of international standards.
“Israa Salah” spoke to HRW from death row. She had crutches. She suffered nine days of beatings, “electric shocks with an instrument known as ‘the donkey,’ and falaqa,” a form of torture where the victim is “hung upside down and beaten on their feet.” It left her “permanently disabled.” She had back scars and burns on her breasts. She was executed in September 2013, although lower courts dismissed charges because she only confessed to a crime after torture.
In another case, “Fatima Hussein,” a journalist accused of murdering a parliamentarian’s brother and marrying an al Qaeda member, was raped and tortured. A colonel blindfolded her and tied her naked body to a column. She was electrocuted with an electric baton. She was beat with cable. She was handcuffed to a bed and forced to give oral sex. She had blood all over her body and was raped three times. The colonel relaxed, smoked cigarettes, and put them out on her buttocks. Then, he violated her some more.
Despite reports of horrific brutality, Obama publicly stood by Iraqi Prime Minister Nouri al-Maliki. Counterterrorism assistance to Iraq and a continuation of the $1.7 trillion nation-building experiment launched by Bush was endorsed as late as November 2013 and without any calls for Maliki to step down.
There really has not been an account of how the Obama administration employed interrogation techniques and whether any officials engaged in cruel and inhuman treatment or were complicit in abuse. To the extent that members of Congress were concerned about this issue, they were largely focused on accounting for the acts of the Bush administration.
But Guantanamo Bay military prison remains open. It still holds dozens of prisoners. Trump and other Republicans may restore it as the “battle laboratory” developed by Bush officials.
The full 6,300-page report on CIA torture from the Senate intelligence committee remains classified. The Obama administration could release it now and apply substantial pressure to the Trump administration to not restore torture techniques. But Obama has shown no interest in taking such action.
There was a chance for President Barack Obama to display leadership and push for full investigations into the crimes of torture. With no consequences, torture was effectively decriminalized. The world now stands by wondering if Trump will take advantage of a culture of impunity and bring back torture techniques to fight terrorism.
This is the fourth in a five-part series on the warfare and “national security” operations of the Obama administration. The first part examined the human cost of eight years of war under Obama. The second part examined the administration’s institutionalization of an assassination complex. The third part examined how Obama has left intact a regime that enables indefinite detention. In the final part, the administration’s record on transparency and press freedom will be highlighted.