A tortured presidency

The savage campaign to delegitimize Barack Obama is a stain on our history. But it offers no excuses for him, nor us, to not pursue justice in one of the darkest chapters of our history.

Guest Column by Timothy Connor

Seven years ago I set aside a platter of cynicism to caucus in my community for the candidate who eventually became the nation’s first black President.

I don’t exactly remember the ratio of hope to disgust behind that decision. The war in Iraq — induced with false pretenses and fabricated intelligence — had become an expensive, bloody quagmire. Worse, still, was Vice President Dick Cheney’s pronouncement in September 2001 that the U.S. would go to the “dark side”  and use “any means at our disposal” to fight terrorism. This not only led to the shame of Abu Ghraib but to the sanctioning of physical and psychological cruelty as a tool of national policy. Along the way, the Bush Administration twisted arms and minds to euphemize torture as an “enhanced interrogation technique”  and, in so doing, basically put the U.S. government in moral league with Latin American drug lords.

That mostly explains the disgust. To the extent I nurtured hope, it was the hope that by electing Barack Obama we could bring an end to what looked, to many of us, like a deviant and tragic coup.

Obama vowed to stop the atrocities. Yet he also inherited a deeper responsibility—to hold accountable those who ordered and perpetrated these shameful acts.

In February 2008 there were many more people than chairs in our south Spokane caucus room, and no one seemed eager to leave early. People spoke passionately not just about their deep frustration but about how they were resolved to help elect someone who would end what, to many of us, was a nightmare. What I think is true (at least for about half of us) is we harbor a strong sense that we, as a nation, forfeit the moral aspirations of our democracy when we follow the likes of Dick Cheney into the dark. We were deeply offended by the proposition that the U.S. should respond to unspeakable acts against us by committing unspeakable acts of our own.

Within a year of his inauguration, Obama had lost me, and most quickly because of his choice to pour even more lives and money into Afghanistan, on a transparently pointless war.  There were many other decisions that troubled me, from his backpedaling on Guantanamo, to the ‘just trust us’ assassinations of the drone wars, and the lies and overreach of the NSA’s surveillance programs.

At the same time, any one of us who felt disappointed or betrayed by Obama could find him or herself in the jaws of a difficult paradox. Not to minimize our grievances, but by far the dominant story line to Obama’s presidency has been the scorched-earth opposition of his Republican opponents. The endless roadblocks and threats to shut down the government have gone hand-in-hand with a sinister campaign, playing on fear, race and religion, to cast our first black President and his wife as unAmerican. The phony scandal over the authenticity of Obama’s birth certificate was just one torch with which Republicans were trying to burn Obama in effigy. As recently as 2012, polling showed that roughly a third of all Republicans bought into the lie that Obama is a Muslim.

It is this disgraceful character assassination that long-time Republican Congressional staffer Mike Lofgren condemned in late 2011, as he was explaining  his resignation and his deepening disgust for his own party. As Lofgren lamented, stoking racially charged “vitriolic hatred” for Obama among the GOP base was a way to delegitimize the president, while betting that “tens of millions of low information voters” would blame him and his party for the political gridlock created by Republican stonewalling.

In short, Obama was getting mugged. Those of us who were inclined to criticize him from the left were often restrained because we didn’t want to give comfort to the despicable, race-baiting critics attacking Obama from the right. Yet, just because Obama has been unfairly targeted and besieged, it doesn’t follow that we should be less vocal in challenging his decisions, especially when those decisions undermine what ought to be the central, defining tenets of our democracy. He and his aides may think it unwise to spend scarce political capital to prosecute torturers and wealthy Wall Street bandits. But these weren’t about partisan disagreements in the margins of trade policy or about a cadre of corrupt aldermen siphoning block grant money into their bank accounts. These were brazen assaults upon our fundamental values and welfare.

—-“We tortured some folks,” President Barack Obama, August 1, 2014.

Months before the Senate Select Committee on Intelligence released a summary of its long-awaited report on the CIA torture program in mid-December, a remarkable story spilled into public view. It was the battle between the committee and the CIA over the committee staff’s access to classified CIA documents. In late July last year, the CIA inspector general corroborated Sen. Feinstein’s charges that CIA personnel had been spying on the committee (including creating a fake identity to access committee computers) while the committee was investigating the CIA.  The head of the CIA, John Brennan, apologized but has been allowed to keep his job.

The Senate committee initiated its inquiry in 2009 after revelations that the head of the CIA’s clandestine services had ordered the destruction of 92 video recordings of two detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri. The two had been subjected to brutal interrogations, including water boarding.  The committee eventually produced a 6,700 page study of the CIA’s detention and interrogation program, “including a review of the 119 known individuals who were held in CIA custody.” Although the full study was approved by the committee in December 2012, it took an additional two years — surmounting CIA resistance at every step — to distill a heavily redacted, 499-page executive summary. It is this document that was finally released on Dec. 9, 2014.

As would be expected, there was something of a mad dash by the press to pore over the summary and highlight new details of the atrocities committed against the 119 detainees. Perhaps it was this news cycle-driven rush that caused an important feature of the report to be overlooked: it doesn’t much matter where you start reading, you’ll feel sick to your stomach within a minute or so. If it’s not a gruesome account of the cruelties inflicted upon detainees, it’s the lengths to which the CIA leadership lied to Congress about the extent of the program and the torturers’ repeated failures to produce reliable intelligence.

“As the Study describes,” Sen. Feinstein dryly reported, “prior to the attacks of September 2001, the CIA itself determined from its own experience with coercive interrogations, that such techniques ‘do not produce intelligence,’ ‘will probably result in false answers,’ and had historically proven to be ineffective. Yet these conclusions were ignored.”

Just because Obama has been unfairly targeted and besieged, it doesn’t follow that we should be less vocal in challenging his decisions, especially when those decisions undermine what ought to be the central, defining tenets of our democracy.

So if torture is illegal, and the CIA had already determined it to be ineffective, why did we do it anyway? Journalist Jane Mayer had answered this question six years earlier in her book “The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals.”

Among the stories Mayer tells is that of Alberto Mora, a life-long Republican who was the U.S. Navy’s General Counsel when he learned, in late 2002, of abuses against detainees at Guantanamo. Near the core of the torture program was an ideological tinderbox stoked by Vice President Cheney and his legal counsel, David Addington (often referred to as “Cheney’s Cheney), both of whom were contemptuous of checks on executive power. Mora’s revolt against the abuses at Guantanamo led him into Addington’s buzz saw and to the desk of Addington ally John Yoo, a former clerk for Supreme Court Justice Clarence Thomas.  At the time, Yoo held a high position in the Justice Department’s powerful Office of Legal Counsel. Yoo, of course, is the principal author of the secret and infamously specious “torture memo,” drafted in August of 2002, that attempted to provide legal cover for the physical and mental abuses inflicted upon detainees.

Mora saw the travesty. Officers were being ordered to engage in abuses that violated the law and lawyers like Yoo were offering up secret legal opinions to justify violations of the Uniform Code of Military Justice. Mora’s confrontation with Yoo and his other internal efforts to stop the program failed. His last effort, before he resigned, was to author a 22-page memo documenting his efforts to reverse the policy and stop the practices. It was stamped “secret” by the Pentagon.

As Spokesman-Review journalists Karen Dorn Steele and Bill Morlin reported in mid-2007, there’s a local angle  to this travesty.  Psychologists  James E. Mitchell and Bruce Jessen had first worked with the so-called “Survival, Evasion, Resistance, and Escape” (SERE) program at three U.S. locations, including the Air Force Survival School at Fairchild Air Force Base. But when the nation turned to the dark side the two were contracted to help the CIA “reverse engineer” the SERE curriculum such that the brutal techniques U.S. service members were being taught to resist could be used to extract information from detainees rounded up in the so-called war on terror.

In the pages of the Senate Intelligence Committee report, the story of Mitchell and Jessen (who are referenced in the report under the pseudonyms Grayson Swigert and Hammond Dunbar) reads like a tale of bloody incompetence from a Coen brothers screenplay.

“Neither psychologist had any experience as an interrogator, nor did either have specialized knowledge of al-Qa’ida, a background in
counterterrorism, or any relevant cultural or linguistic expertise,” the report discloses. Yet, “on the CIA’s behalf, the contract psychologists developed theories of interrogation based on ‘learned helplessness,’ and developed the list of enhanced interrogation techniques that was approved for use against Abu Zubaydah and subsequent CIA detainees. The psychologists personally conducted interrogations of some of the CIA’s most significant detainees using these techniques. They also evaluated whether detainees’ psychological state allowed for the continued use of the CIA’s enhanced interrogation techniques, including some detainees whom they were themselves interrogating or had interrogated.”

Headquartered in Spokane’s American Legion Building, Mitchell Jessen & Associates took in $81 million from the CIA and, according to the Senate report, enjoyed a multi-year indemnification agreement shielding its employees from legal liability in connection with their dark services. These services included active participation in brutal interrogations, including water boarding and other forms of torture.

Perhaps it’s fitting that the offices from which Mitchell & Jessen administered their affairs are less than half a block from the route of Spokane’s annual Lilac Festival and Armed Forces Torchlight Parade, the apex civic event of our region, pulling in cowboys, marching bands, majorettes, and soldiers from hundreds of miles. The Lilac is a quilted celebration of innocence, prosperity and patriotism. In a not-so-subtle way it also showcases our civic connection to, and ownership of, American militarism. But to really own what gets done in our names, we must also square our gaze to the reality of Mitchell & Jessen’s enterprise—psychologists raking in millions of tax dollars to transmute the healing arts into instruments of psychological and physical pain. The details of these evils can be found in the Senate report, and even if the Palouse sprouted bushels of lilacs instead of wheat, there wouldn’t be enough fragrant, purple blossoms to cover the stench.

As Alberto Mora understood almost immediately, these were criminal acts. The internal muscle-flexing by John Yoo, Addington, and the rest of Team Cheney was part of a purposeful and repugnant effort to subvert the law, so that atrocities could be committed with impunity.

Based on its own inquiry, the Senate Armed Services Committee,concluded in late 2008: “The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, refined the law to create the appearance of their legality, and authorized their use against detainees.”

This was not just a matter of violating U.S. law. For 30 years, the U.S. has been a signatory to the international Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment.

“For the purposes of this Convention,” the treaty reads, “the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

The shoe fits. The treaty language well describes not just the nature of “enhanced interrogation techniques” but its “instigation..with the consent” of the highest government officials.

“Waterboarding is torture, Senator,” Attorney General nominee Loretta Lynch told  Sen. Patrick Leahy during a confirmation hearing in late January, “and thus illegal.”

Notably, even Republican Sen. John McCain, in a floor speech lauding the Senate committee’s report, described waterboarding as “an exquisite form of torture,” the use of which “was shameful and unnecessary.”

Moreover, as the Senate report makes very clear, waterboarding was only one part of the illegal abuse committed against detainees. The use of forced “rectal feeding” to degrade detainees captured some headlines, but there was also common use of excruciating sleep deprivation and ice water baths. Hypothermia likely causedthe death of one detainee at the CIA’s notorious “Salt Pit” site outside Bagram Air Base in Afghanistan.

As for psychological abuse, the Senate investigators found, among other things: “The CIA led several detainees to believe they would never leave CIA custody alive, suggesting to one detainee that he would only leave in a coffin-shaped box. One interrogator told another detainee that he would never go to court because “we can never let the world know what I have done to you. CIA officers also threatened at least three detainees with harm to their families—to include threats to harm the children of a detainee, threats to sexually abuse the mother of a detainee, and a threat to ‘cut [a detainee’s] mother’s throat.’”

“For as long as these policies were in effect,” Alberto Mora told Jane Mayer, “our government had adopted what only can be labeled a policy of cruelty. Cruelty disfigures our national character. It is incompatible with our constitutional order, with our laws, and with our most prized values…Where cruelty exists, law does not.”

There is something else about cruelty. It spiritually disfigures those who conduct, condone, and practice it.  And, as Alberto Mora suggests, we can see the radius of the injury on the soul of the torturers on out to the desensitization and rationalization that gushes from the former vice president.

How should Obama and Holder have responded?

Seven years ago, Obama answered the question correctly, when he said that “nobody is above the law” and that, as President, he would immediately ask his Attorney General to investigate criminal charges against those found to have authorized and/or committed torture.  The year before he became Attorney General, Eric Holder agreed, saying “we owe the American people a reckoning.”

Yet, as Glenn Greenwald and others have reported, those positions were crumpling even before Obama’s inauguration. In the spring of 2009, Obama’s pugnacious chief of staff, Rahm Emanuel, went on a nationally broadcast Sunday news show to bluntly dismiss any notion that either the torturers or the high level officials responsible for the torture program would be prosecuted. In doing so, Emanuel emphasized that Obama had already declared this to be a time not for “retribution,” but for “reflection.” It was this same, lame rationale that a visibly grayer Obama reiterated when the Senate committee’s summary — with its new, gory details—was made public in December.

“Our intelligence professionals are patriots,” he said. While he acknowledged the Senate report “reinforces my long-held view” that the “harsh methods” were wrong and “did significant damage to America’s standing in the world,” he also said he didn’t want the report to be “another reason to refight old arguments.”

While Obama’s statement gave the appearance of being even-handed, its moral and legal emptiness was sharply criticized by Amnesty International, the American Civil Liberties Union and several international jurists.

“The failure of President Obama and Congress to ensure accountability for torture, enforced disappearances, and other human rights violations leaves the USA in serious violation of its international legal obligations,” said Amnesty International director Steven Hawkins.

Within days of the report’s release, the Berlin-based European Center for Constitutional and Human Rights filed a criminal complaint against Bush Administration officials (including Bush and Cheney) with a German court. Public outrage in Germany had already been fueled by the revelation that a German citizen, Khalid Al-Masri, was captured by the CIA in 2003 in Macedonia and taken to the and taken to the notorious “Salt Pit” in Afghanistan (it is referred to as the COBALT detention site in the Senate report) to be tortured. The CIA continued to hold and abuse Al-Masri even after they suspected it was a case of mistaken identity.

“I think that it could be very toxic in some ways to hold people as criminals who were doing what they thought was right for the country. But, at the same time, I have to say I think that we need accountability in this country in order to make sure that people abide by the laws. And I can tell you when I interview people at the CIA, a number of people said that they didn’t want to get involved in this because they thought there’d be criminal repercussions. So, if there never are any criminal repercussions, I’m not sure where that leaves us.” —Journalist Jane Mayer, Bill Moyers Journal, July 2008.

It’s hard to imagine that the U.S. would not seek to prosecute any foreign official(s) who mistreated a U.S. citizen in the way that the CIA abducted and tortured Khalid Al-Masri. Yet, by the ‘look foward, not backwards’ policy Obama espouses, we’re supposed to forego justice for Al-Masri because to hold anybody accountable for the breath-taking criminality of the CIA torture program would put too great a strain on our already dysfunctional politics.

It is this carefully considered disregard for justice that connects Obama and Holder’s baseless absolution for torturers to their similarly calculated response to criminality on Wall Street. The literature on this subject is extensive, including Martin Smith’s reporting for Frontline in 2013 that investigated the conspicuous absence of federal criminal prosecutions despite abundant evidence of fraud in the detonation of the financial crisis in 2008. The Frontline investigation exposed the depth of the Justice Department’s resistance to criminal investigations of financial fraud and led to the resignation  of Lanny Breur, the head of the Justice Department’s criminal division.

In a historic sense, the math is shocking. As former Congressional investigator William K. Black points out, the veritable absence of criminal prosecutions connected to the widespread frauds in the mortgage bundling and trading orgy is in sharp contrast to the more than 30,000 criminal referrals and 1,000 felony convictions in the wake of the Savings & Loan scandal of the 1980s. Hundreds of people went to jail after the Savings & Loan scandal. Not this time, though.

Black makes the case that the failure to prosecute the individuals responsible enables a “criminogenic environment” in which corruption propagates due to the spiraling realization that fraud pays.

“It creates what we call a Gresham’s dynamic,” he told Bill Moyers in April of 2010. “And that just means cheaters prosper. And when cheaters prosper, markets become perverse and they drive honesty out of the market.”

If we don’t persist in our demands for justice we will not only lose moral credibility with other nations, we will become jaded and deformed by our own tacit complicity.

As honesty leaves the market, what settles in is a corrupt triumphalism and another grotesque symbol of American injustice. Journalist Matt Taibbi is one of the few reporters to examine this from top and bottom—documenting how wealthy financiers go un-indicted for frauds in the millions or billions of dollars, while poor people are arrested and prosecuted for relatively minor offenses. After his book The Divide, American Injustice in the Age of the Wealth Gap was published last year, Taibbi described the issue in an NPR interview with Tom Ashbrook:

“Let’s just take the same crime, fraud. If you look at a single mom on welfare and she gets caught let’s say in an eight hundred dollar welfare fraud, maybe the state overpaid her and she forgot to pay back, or maybe she checked the wrong box and her application and said she didn’t have a boyfriend who’s living with her and it turns out that a neighbor said that she did. The woman will inevitably pay one hundred percent restitution for that fraud. She may lose custody of her children and she may face prison time. I found women who did face prison time who were in that situation.”

By comparison, he noted, Wall Street financiers were involved in packaging and trading “toxic subprime loans” as part of “a highly elaborate criminal scheme.”

“And that was fraud too” he continued, “but we wouldn’t even think of taking the custody of children away from the people who committed that kind of fraud. And none of them face any jail time. And restitution in that part of the world is never one hundred percent. If the fine was a billion dollars you can bet that the profit was thirty billion dollars.”

Taibbi, Black and others, including former Labor Secretary Robert Reich and Sen. Elizabeth Warren, point to how eager Obama has been to take campaign cash from Wall Street and appoint Wall Street insiders to top policy posts in his administration. There is also the now-famous “Holder memo” that Eric Holder authored during his tenure as deputy Attorney General during Bill Clinton’s presidency. In the memo, “Bringing Criminal Charges Against Corporations,” Holder urged government prosecutors to consider the unwelcome “collateral consequences” of convictions that might inflict “disproportionate harm” on employees and stockholders. But even the Holder memo didn’t accurately foreshadow the breath-taking extent to which he and Obama would shield Wall Street banks and their officers from accountability.

It’s not possible, of course, to distill or confine the deep problems with Obama’s leadership to torture and Wall Street. As I’ve argued in other places, future generations are much more likely to judge him and our abysmal Congress for their failure—at the most crucial juncture—to act in time to ward off catastrophic global warming due to carbon emissions.

“The problem was these issues have a tar-pit quality to them,” a former Obama aide recently told Politico’s Josh Gerstein in an article  focusing on Obama’s decision not to prosecute for torture. “You step foot in them and they have a way of becoming all consuming. The administration had a lot on its plate back then (2008) and the strategy of fighting on these issues could have pretty quickly consumed the entire public narrative.”

“It’s not unique to this issue,” the former official added. “His compass tugs him in one direction, but political reality and perceived political reality pull him in another.”

No one should have had to endure the deep racial resentment and torrents of character assassination that Obama—and Holder, for that matter—have been subjected to over the past six years. One gets the sense, however, that Obama’s greatest concern (in response to the “perceived political reality”) is to avoid giving any appearance of being unsettled or vindictive. His reticence has been costly, because what Dick Cheney and his dark side disciples require is full-throated resistance and more rigorous cross-examination than the deferential treatment they receive on Fox News. To effectively indemnify them is not only illegal but it affords them a false cover of legitimacy to continue arguing that their actions were legitimate and justified.

In a powerful, December 22, 2014 editorial, “Prosecute Torturers and Their Bosses,” The New York Times squarely took Obama to task for his passivity. Pursuing criminal charges, the Times wrote, “is not about payback; it is about ensuring that this never happens again and regaining the moral credibility to rebuke torture by other governments.”

What is clearly missing inside Obama’s governing bubble is an appreciation that while there may be (to quote the Holder memo) “collateral consequences” to enforcing the law, the consequences of not pursuing justice will be worse in the long run. Not only are Dick Cheney and the masters of the universe on Wall Street not exhibiting anything like contrition, they actually want us to suspend the rules that would hold them to account. If we don’t persist in our demands for justice we will not only lose moral credibility with other nations, we will become jaded and deformed by our own tacit complicity, even in crimes of the most shocking sort.