Redoing the Human Rights First Report Card IV

By Benjamin Wittes
Wednesday, January 12, 2011, 8:47 AM

I'm very glad that President Obama has acted in a fashion that has won him a failing grade from Human Rights First in this category:

Grade: F

Accountability for Torture. Torture and conspiracy to commit torture are felonies under U.S. law. Yet the United States has failed to hold accountable those who authorized and perpetrated torture against prisoners in U.S. custody. In November 2010, the Justice Department announced that there would be no prosecutions for destruction of CIA tapes that allegedly recorded acts of torture committed by employees or agents of the United States. Special Prosecutor John Durham has yet to release his report on the investigation into whether crimes were committed by U.S. officials during any interrogations that included “enhanced interrogation techniques,” such as waterboarding, a well-known form of torture. The failure to hold accountable those responsible for acts of torture and to provide redress to victims (see “State Secrets” below) is a violation of international law and diminishes the credibility of the United States as standard-bearer for human rights worldwide.

One of the more courageous things the Obama administration has done is to generally decline to engage in retroactive investigation of the last administration on matters of interrogation policy. The lingo is "looking forward, not backwards," and it has greatly frustrated the left. To be sure, the administration's refusal has been imperfect. Attorney General Holder did reopen certain closed matters for further investigation--areas in which CIA personnel reportedly operated beyond the guidance the Justice Department had given it. More generally, there has actually been a great deal of accountability for past detention policy--the disclosure of internal memos, for example. But in the main, the administration has taken and stuck to two key positions, both of which I believe correct and which together ensure failing grades from groups like HRF.

The first of these is that the administration is not going to do violence to the two-century-old tradition in American life of incoming presidents' not prosecuting outgoing ones. Prison has only the most limited role in transitions of power in a democracy--and that role certainly does not include good faith actions to protect the country, even ones of which we come to be ashamed in the cold light of later days. The second is that we are not going to prosecute instead of Bush and Cheney the operatives who carried out their orders or the lawyers who provided good faith legal advice as to the lawful contours of the program. These decisions, of course, seem much less honorable if one does not believe that the lawyers in question were operating in good faith than if one believes, as I do, that whatever their errors may have been, they were addressing very hard questions under extraordinarily hard circumstances. And it seems less honorable too if one casually uses the word "torture" to describe all forms of coercion and assumes that any deviation from the Army Field Manual must be torture or cruel, inhuman, or degrading treatment.

This is standard fare on the left now, and I don't mean to pick on HRF in particular for it. But for whatever it's worth, let me say this as clearly as I can: What HRF calls "accountability for torture" is, in my book, the criminalization of policy differences--nothing more or less. Many of the lawyers for whose blood the left now brays are honorable decent, hardworking people; some even argued internally against the excesses of Bush administration policy. The public oppression of such people is no different from the right's shameful attacks on Justice Department lawyers in this administration who once represented Guantanamo detainees. I feel exceptionally strongly on this point and consider it a stain on the honor of many people on the left that they stood mum during these attacks.

But just to be clear, I'm not throwing David Addington and John Yoo under the bus either--though I completely disagree with the hard-line vision of executive power they trumpeted and do not think they behaved in the best traditions of the executive branch. They believed in what they wrote and in their legal interpretations, and they should be left alone. By and large, the Obama administration has done that, though imperfectly and with some unseemly glitches that temper my praise a bit. I would call this category "Avoiding Witch Hunts" and I would give the administration a solid B.