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General News    H3'ed 2/18/20

Tomgram: Rebecca Gordon, Torture's Legacy of Impunity

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This article originally appeared at TomDispatch.com. To receive TomDispatch in your inbox three times a week, click here.

He was the candidate who, in a 2016 election campaign debate, swore that, as president, he'd "bring back a hell of a lot worse than waterboarding." At another event, Donald J. Trump insisted: "Don't tell me it doesn't work -- torture works!" And at one of his campaign rallies that year, he explained that he (and he alone of all the candidates) would expand the use of torture against terror suspects while staying "within the laws" in the simplest way possible: "You know what we're going to do? We're going to have those laws broadened."

As an expert on the global campaign of torture the CIA launched with the backing of the highest officials in the Bush administration, TomDispatch regular Rebecca Gordon uses the latest testimony in pre-trial hearings at Guanta'namo Bay to give us a deeper sense of how impunity entered our world long before Donald Trump got elected. After all, in that offshore Bermuda Triangle of injustice, a previous administration had already "broadened" -- that is, banished -- the very idea of the rule of law to create a lawless universe of American injustice, one that in our age has spread to our borderlands, to the mainland, and above all to the White House.

So prepare yourself. In the wake of the impeachment fiasco in the Senate, Donald Trump is now free to torture us all. Tom

"The Right to Do Whatever I Want as President"
Impunity Guaranteed for Torturers (and Presidents)
By Rebecca Gordon

On February 5th, the Senate voted to acquit President Donald J. Trump of abuse of power and obstruction of Congress. In other words, Trump's pre-election boast that he "could stand in the middle of Fifth Avenue and shoot somebody" and not "lose any voters" proved something more than high-flown hyperbole. (To be fair, he did lose one Republican "voter" in the Senate -- Mitt Romney -- but it wasn't enough to matter.)

The Senate's failure to convict the president will only confirm his conception of his office as a seat of absolute power (which, as we've been told, "corrupts absolutely"). This is the man, after all, who told a convention of student activists, "I have an Article II, where I have the right to do whatever I want as president. But I don't even talk about that." Except, of course, he does.

The day after the Senate vote, a decidedly unchastened Trump spoke at a National Prayer Breakfast, brandishing a copy of USA Today whose banner headline contained a single word: "Acquitted." After disagreeing with the prayerful suggestion offered by Arthur Brooks, former head of the conservative American Enterprise Institute (and a couple of millennia earlier by one Jesus of Nazareth), that we should love our enemies, the president promptly accused both Mitt Romney and House Speaker Nancy Pelosi of inadequate prayerfulness. He lumped Romney in with people "who use their faith as justification for doing what they know is wrong" and accused Pelosi, not for the first time, of lying when she says she prays for him.

Trump's endless boasting about his invulnerability can certainly be blamed on the dismal swamp of his own psyche, but there's another at least partial explanation for it -- and it lies in the country's collective failure to hold anyone responsible for crimes committed since 2001 in the "war on terror." If one administration can get away with confining detainees in coffinlike boxes and torturing them in myriad other ways, why shouldn't a later one go unpunished for, to take but one example, putting migrant children in cages?

Forward, Not Backwards

In 2009, Barack Obama prepared to enter the Oval Office promising to end the worst excesses of the previous administration's war on terror. Although he did close the CIA's detention centers and prohibit torture, he also quickly signaled that no one would be held accountable for the already well-documented practice of torture promoted by the administration of George W. Bush and his vice president, Dick Cheney. A week or so before Obama's inauguration, the president-elect was already assuring ABC News's George Stephanopoulos that, although there would be prosecutions if "somebody has blatantly broken the law," on the whole he believed "that we need to look forward as opposed to looking backwards."

In particular, Obama was concerned that government operatives should not be hampered in the future by fear of prosecution for past acts sanctioned by top officials:

"And part of my job is to make sure that, for example, at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders."

As it turned out, they need not have worried. On April 17, 2009, as Carrie Johnson and Julie Tate reported in the Washington Post, "President Obama and Attorney General Eric H. Holder Jr. reassured CIA employees anew yesterday that interrogators would not face criminal prosecution so long as they followed legal advice." As Holder put it, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department."

The legal advice in question had been contained in a series of infamous memos written by that department's Office of Legal Counsel (OLC) between 2002 and 2005. In them, the legal definition of torture was "clarified" for a nervous attorney general, Alberto Gonzalez, and the CIA. One memo, drafted by Deputy Assistant Attorney General John Yoo and signed by Assistant Attorney General for the OLC Jay Bybee, explained that to "constitute torture" under the law, physical pain "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." To meet the legal definition of psychological torture, mental suffering "must result in significant psychological harm of significant duration, e.g., lasting for months or even years."

Not surprisingly, despite the previous administration's stamp of approval on what were euphemistically called "enhanced interrogation techniques," a three-year investigation by the Obama Justice Department into CIA interrogation practices came to a whimpering end in August 2012, when Holder announced that the only two remaining torture cases, both of which involved deaths in U.S. custody, would be dropped.

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Tom Engelhardt, who runs the Nation Institute's Tomdispatch.com ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and, most recently, the author of Mission Unaccomplished: Tomdispatch (more...)
 

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