(Update – 12/7 and 8) Obama And Bush Torture Misdirection

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Benjamin G Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

Now that the former CIA leaders – thanks to Brennan – have had six months head start in preparing their vigorous public relations defense of the torture they did, please be prepared for an onslaught of comments by them. (Update 12/8  – they have been busy little bees according to this article with their new website going up – http://foreignpolicy.com/2014/12/08/exclusive-former-spies-launch-ciasavedlives-com-to-combat-torture-report/)

It will start tomorrow on the CNN State of the Union show where George Bush will be interviewed. Actually, the charm offensive started somewhat earlier during the UN Committee Against Torture hearings in mid- November when George Bush was given airplay ostensibly about his book about his dad.

Be that as it may, we can expect the “the program kept us safe,” “I would authorize it again.” “the CIA are good people,” and other variations in his presentation.

Then, expect a rollout of the former CIA types and their proxies from the Bush Administration such as the lawyers.  All-American looking and earnest speakers will urge in various fora of social media the report is flawed on a procedural ground and also that we are at war and hard measures were needed.

Some of these types are in the press corps already (http://www.washingtonpost.com/opinions/michael-gerson-releasing-the-feinstein-report-in-the-middle-of-a-war-would-be-reckless/2014/12/08/e1dd1268-7f15-11e4-8882-03cf08410beb_story.html?postshare=4091418126020247) and will play their roles as shills for torturers with great fervor. You know, the softball questions and the humanizing interview.

(Update – former President Bush described the CIA people as patriots and good people on CNN’ State of the Union and outgoing Chair Mike Rogers of the House Select Committee on Intelligence said that there have been many investigations, we have stopped doing what we are doing, foreign leaders are telling us not to do this as there will be violence, and what could possibly be gained by this release of this report.  Former CIA Director Michael Hayden has also weighed in in a similar manner – http://m.theatlantic.com/international/archive/2014/12/former-cia-director-hayden-warns-against-releasing-senate-torture-report/383491/. And  Jose Rodriguez – the torture tape destroyer – and others http://mobile.nytimes.com/2014/12/08/us/politics/bush-and-cia-ex-officials-rebut-torture-report.html

All of these comments are of course misdirection.  They reflect what might be called “powerful or insider bias” – they are patriots, they are good people, they know what happened, they changed what they did, foreign powerful people say this will lead to violence and what purpose is served in releasing this information to the powerless.

The problem with this approach is best taken from the biblical verse about making the crooked road straight.  The worldwide torture regime was the crooked road – completely in violation of the absolute prohibition against torture.  Whether these people involved were patriots or were good people, those points are besides the point.  They went down (and took America down) the crooked road and committed a crime.  The fact that so many of them have worked so hard to not let us ordinary citizens know what happened suggests that part of keeping that road crooked for them is not having ordinary Americans (in whose name they were supposed to be acting under the public trust) know how crooked what they did was and is.  So transparency for me serves the benefit of making that crooked road straight by not allowing the people who did it to continue to control the information about the torture they did.  That there have been changes made in law and practice is beyond doubt, but many of those changes have language in them that appears to be about trying to insulate the torturers from accountability.  So those laws are not straight but are crooked and should be at best narrowly construed.  To do that, we need the facts wherever they lead.  The views of foreign powerful people – 54 countries went along with the worldwide torture regime – are not disinterested but reflect those leaders trying to protect themselves from the opprobrium of their own people for what they did as well as the opprobrium of the world for their crooked approach to the straight road of the absolute prohibition against torture.  These are crocodile tears being shed.

And for those who say no purpose is served, I say that the purpose of letting me as an ordinary citizen have a better inkling of how my government has tortured down the crooked path is a sufficient purpose.  There is a tendency of the high and mighty to disdain us lowly folks and it is time for the mighty who have it great to be laid low.  They took the crooked path and now they have to face the music.)

Within the Administration, Kerry’s call to Feinstein is a CYA for in case something blows up out in the world in response to the report. ISIS will no doubt try to make a huge propaganda victory out of revelations in the report – that is their modus operandi so far. So those things will happen and some will blame the release of the report for those things. And Americans like my dad who retired from State may – God forbid – be projected into harm’s way or killed. The release of the report would then be blamed for that.

But with all this dancing around about the report, we should all keep in mind that fundamentally all of this is misdirection from the essential point that neither the Bush nor the Obama Administration acknowledges.

It is that these actions by senior officials – as surely as the chokehold by police that killed Eric Garner in New York or the gunshots with which police killed Tamir Rice in Cleveland or the gunshots that killed Michael Brown in Ferguson, or the gunshots that killed a homeless man on videotape in Albuquerque – and the coverup since are crimes to be effectively investigated and prosecuted.

It is the crime and the coverup, not the report that are the reason these bad things may happen.  To think that the revealing of an aspect of the crimes is more dangerius than the actual commission of the crimes is to have a public relations vision of torture – not a rule of law vision.  The problems that arise from public reporting are just one more consequence of the decision to commit the crime of torture.  The public reporting is not the problem – it is the torture, stupid.

The critics of the botched investigations and  grand jury proceedings in the Brown and Garner cases as in the Trayvon Martin case before, all called for and were to be reassured by the opening of federal investigations.

As someone who has watched and read the publicly available parts of federal investigations of torture since they started coming out in 2004, one cannot help but think that the purposes of these investigations is to bury criminality at the top and minimize the prosecution of criminality at the bottom. They are not about seeking the facts and indicting the real crimes.

And so we violate are obligations under the UN Torture Convention in a bipartisan manner while paying only lip service to the absolute prohibition on torture.

That is how far our leaders have let America sink – vague apology for mistakes made but no accountability. Such a degraded vision of the rule of law.

So the misdirection starts on the shiny new thing  report which is only one tenth of the underlying report and it itself is only a partial story.  The dimensions of this partial report demonstrate just how broad the 54 country torture regime was and, even then, this report does not speak to the military side of it.

The enormity of the crime and our passive unwillingness to prosecute the senior officials who out it in place demonstrate a hole – not a blind spot – in the American character that years of fear and propaganda have carefully exploited.

That calling for such prosecutions is so seen as  preposterous is precisely the evidence of how low we have come in our belief in the rule of law.  That there are those who do not take seriously the idea of such prosecutions is more about those persons not taking seriously the rule of law than anything else.

So let us keep our eye on the ball and not let the coming onslaught of misdirection deter us from the grim duty of making sure these senior officials end up in the dock for the worldwide torture program they orchestrated and seek to cover up.

There is no national security in torture and it is no secret – whatever the state wants to hide -that these people committed crimes.

Any impunity permitted is on each of us – whether in power or not.

And the whole f’ing world is watching.