The sole exception was a narrow investigation entrusted to special counsel John Durham, which examined interrogators whose cruelty had exceeded authorized interrogation techniques. That inquiry ended last month with a decision to investigate two deaths of terrorism suspects in CIA custody but not some 100 other cases of alleged abuse. The crux of the problem, however, was never excessive torture; it was authorized torture. Khalid Sheik Mohammed, for example, was ordered subjected to “waterboarding” — a form of mock execution by drowning — 183 times. That was the issue — not that some freelancing interrogator might have added a 184th.
Obama’s deliberate suppression of this shameful past is wrong. It reflects bad policy, a dereliction of presidential responsibilities and a continuing disregard for international law.
It treats torture as a policy option — one that can be turned on or off at presidential will. Obama prohibited the practice, but by refusing to underscore its criminality through prosecution, he leaves the door open for future presidents to resume torture when the next security challenge arises. Indeed, far from “moving on,” Obama’s critics in Congress have attacked his decision to reject torture; some have proposed exempting the CIA from Obama’s order that all U.S. interrogators abide by the U.S. Army’s interrogation manual prohibiting such techniques.
Obama has also adopted an unduly narrow view of his duties toward criminal law. It’s not enough for a president to respect that law; he is also responsible for enforcing it. Through his attorney general, a president is prosecutor in chief, but Obama has ordered Eric Holder not to pursue the Bush administration’s serious and systematic crimes against detainees. That tacit acceptance of the past weakens this essential criminal prohibition.
Indeed, Obama’s inaction places the United States in violation of its international legal obligations. The U.N. Convention Against Torture, ratified by the United States and 146 other countries, as well as the Geneva Conventions, do more than prohibit torture at all times, even in war. They also require that torture be investigated and prosecuted. The duty to prosecute is no more optional than the duty not to torture. Yet Obama is picking and choosing among these legal mandates.