2-18-2010By Daphne Eviatar
Senior Associate, Law and Security
Cross-posted at Huffington Post.
Buried in a recent Washington Post article is an interesting fact that Harry Shearer points out in a blog on the Huffington Post today: that in at least one recent Guantanamo detainee case, the US Justice Department did not deny that the detainee was tortured. It just argued that the court should accept his statements as reliable anyway. The DOJ lost that argument, and Saeed Mohammed Saleh Hatim won his petition for habeas corpus.
Dick Cheney may like to call those interrogations “enhanced,” but in everyday parlance they’re what the DOJ is implicitly acknowledging: tortured.
There are two important implications of this.
The first is that, not surprisingly, Dick Cheney and the Washington Post’s newest columnist, Marc Thiessen, who’ve been going around claiming both that “torture works” and that “we did not torture” are just flat-out wrong on both counts. Torture doesn’t “work” if you can’t rely on the information you get out of it. And even the Department of Justice – and the U.S. Military Commissions, for that matter – have acknowledged that the U.S. did indeed “torture.”
The second implication follows up on the point I made recently about the still-unreleased report on the ethics investigation of those DOJ attorneys who authorized detainees’ torture. If even the Department of Justice is not denying detainees’ claims that they were tortured, doesn’t that suggest that further investigation on the part of DOJ is required? After all, the U.S. government has committed, in signing onto the U.N. Convention Against Torture, to investigate and prosecute torture committed by its own government.
Of course, Attorney General Eric Holder has agreed to undertake a “preliminary review” of the actions of some CIA operatives who may have participated in abuses. But a recent decision of the U.S. Court of Appeals for the Armed Forces calls the limits of that investigation into question. On Friday, the court agreed to hear an appeal from Charles Graner, Jr., the army private who was sentenced to 10 years in prison for abusing prisoners at Abu Ghraib. Graner, who was accused of stacking naked prisoners in a human pyramid and ordering them to masturbate while other soldiers took photographs, claimed the trial judge was wrong not to let jurors see the legal memos from the Department of Justice that approved the “enhanced interrogation tactics” Dick Cheney is still so proud of. Apparently Graner’s lawyer thinks they would show his client was just following orders – or at least plausibly interpreting them to permit Graner’s bizarre conduct.
Which brings us back to the role of those Justice Department lawyers. If the military’s highest court thinks there’s a plausible argument to be made that those memos justified some of the most degrading and obviously illegal conduct you can think of, then how can the Justice Department continue to refuse to criminally investigate the role of those lawyers?
The issue has been set aside for more than a year now while the government claims its Office of Professional Responsibility is still completing its about-to-be-issued report. But that claim is becoming less and less plausible. If that report isn’t released soon, the Justice Department’s inaction will look more and more like a coverup.