Obama Moves Deeper into Bush‐​Cheney Dark Side

This article appeared on Cato.org on August 24, 2011.

Through the years of reporting on how we have become notorious around the world fighting terrorism by torturing suspects in our custody, I was not surprised when in April 2004, President Bush guaranteed that the United States would "investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction." ("Inside the Detainee Abuse Task Force," The Nation, May 13, 2011.)

This grand assurance was of the same flimsiness as President Barack Obama's pledge that his was to be "the most transparent administration" in our history.

Almost immediately after he was sworn in, Obama also offered us a pie in the sky by assuring Americans that he would close all CIA secret prisons ("black sites") and end "renditions" of terrorism suspects to countries known for torture.

Yet, as of Jeremy Scahill's verifiable article "The CIA's Secret Sites in Somalia" (The Nation.com, July 12), "the CIA ... uses a secret prison buried in the basement of Somalia's National Security Agency." This prolonged on-the-ground investigation reveals that we pay the salaries of Somalia intelligence personnel, but the CIA "directly interrogates prisoners."

Moreover, international lawyer Scott Horton, whom I've found reliable, adds in "Obama Secret Prisons and Torture" (Ed Brayton, Science Blogs.com, July 21) that the CIA is "maintaining a series of 'special relationships' under which cooperating governments maintain proxy prisons for the CIA," raising "'questions' about 'whether the CIA is using a proxy regime ... to skirt Obama's executive order' banning black sites and torture."

This accusation was further illuminated by Department of Defense Secretary Leon Panetta (previously the CIA director) speaking openly ("At Pentagon, Panetta Era Begins With Blunt Talk," New York Times, July 12) "of supposedly secret CIA activity ... (that) the CIA has a 'big presence' in Afghanistan and 'a lot of bases' in Iraq and is conducting 'a number of operations' in Yemen." (This from the recent head of the CIA!)

Under whose rule of law is the CIA operating? Obama's — not ours. Back in the CIA interrogation center in Somalia, one of the prisoners was abducted from Nairobi, thereby he "bears all the hallmarks of a classic U.S. rendition operation" (The Nation.com, July 12).

Now here is Amnesty International, long a carefully detailed chronicler of the Bush-Cheney-Obama renditions to torture. Says Amnesty International USA's Adotei Akwei, managing director of its government relations (July 13, 2011):

"President Obama should disclose the identities and whereabouts of all persons held at secret sites and their legal status and ensure that all detainees are held only in officially recognized places of detention with access to independent monitors, family, lawyers and courts."

Demanding that this president of the United States actually insist on these basic American values is like telling him to confront Iran with his Nobel Peace Prize and demand its rulers end all nuclear arms planning — and reveal how far they've come.

What about our federal courts? Will they continue to absolve of all responsibility for torture those high-level officials who have been personally involved in directing and implementing renditions, secret prisons and other American war crimes? But one court is awakening.

With insufficient attention from our media, on Aug. 8, the 7th Circuit Court of Appeals ruled in what Josh Gerstein of Politico calls "the highest-level court success (yet) for lawyers seeking to use the courts to impose accountability for what critics view as national security excesses under President George W. Bush." This particular "excess" was torture. ("Court allows torture suit against Rumsfeld," Politico, Aug. 8, 2011.)

I rushed on March 24, 2010, to explore and report on the first historic ruling on this case, Donald Vance and Nathan Ertel v. Donald Rumsfeld, United States of America and Unidentified Agents, in a lower federal court.

At the time, it was the first continuance of a torture case against a senior Bush official. He is being defended by the Obama Justice Department! Of course.

As I wrote then ("Was Donald Rumsfeld a torturer?"), American citizens Vance and Ertel charged the then-defense secretary for being personally responsible for their being tortured in 2006 by American forces in Iraq.

Members of a private security firm in Iraq, they had suspected their employers of illegal activities there. Nonetheless, as I'll describe next week, they were imprisoned and tortured by American forces.

Although these were American citizens being tortured, it's vital to keep in mind what 7th Circuit Court of Appeals Judge David Hamilton — permitting this case to go forward this year — emphasized: "United States law provides a civil damages remedy for aliens who are tortured by their own governments. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens."

And, this being the first Bush high official prosecuted this far for abuse of American prisoners, also involved to prove accountability are the U.N. Convention Against Torture and our own torture laws. They require that American officials must also be held accountable for the torture of non-American prisoners, too, in U.S. custody.

If the Supreme Court ultimately upholds a Rumsfeld conviction, what of future cases against him and other officials — including in the present administration — accused of being accountable for the torture of others of our prisoners in Afghanistan, Pakistan, Yemen and various "black sites" to this day? Which president will move to have those acts of torture investigated?

Nat Hentoff

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.