On November 9, 2010, the former head of the CIA’s clandestine service, Jose A. Rodriguez, Jr. breathed a heavy sigh of relief. His day of reckoning had never come, as the statute of limitations for prosecuting him had expired. Rodriguez was right: the "heat" he took for illegally destroying evidence of felony crimes was surely worth the risk.
Five years prior, on the morning of November 9, 2005, Mr. Rodriguez had authorized others in the CIA to destroy tapes depicting the torture and interrogation of two terrorism suspects, Abu Zubaydah and Abd al-Rahim al-Nashiri, in Thailand in 2002. In internal CIA communications released to the ACLU in a Freedom of Information Act lawsuit, Mr. Rodriguez wrote to a colleague that any consequences for destroying the evidence would amount to "nothing compared to what it would be if the tapes ever got into the public domain." "[The tapes] would make us look terrible; it would be ‘devastating’ to us," he wrote.
The tapes would have been devastating to America’s image: they showed hours of the interrogations of the two detainees and depicted acts of torture, including repeated simulated drownings called "waterboarding".
After the New York Times revealed in December 2007 that the torture tapes had been destroyed, public outcry was such that the Bush administration initiated a special investigation. The grand jury investigation was led by special prosecutor John Durham and began in January 2008. It looked into various issues surrounding the tapes, including allegations that the CIA lied to Congress and the 9/11 Commission about their existence.
While Durham announced this week that Rodriguez and others involved in the destruction of the tapes would not be prosecuted for the act itself, he told reporters that other parts of the investigation would continue, including looking into whether to charge CIA agents and lawyers with making false statements to the grand jury. Durham’s team is also still investigating the deaths of detainees in CIA custody, and the use of torture and interrogation methods not approved by the Bush Justice Department, including mock-executions and threatening to kill family members of the detained.
Mr. Rodriguez claims that two CIA lawyers authorized his order to destroy the torture tapes. This is the same claim that Mr. Bush is making about his torture program as he does publicity rounds with his recently released memoirs, "Decision Points". Bush writes that the torture program was legal because "the lawyers said" it was. Shirking responsibility for his actions, he told Matt Lauer, "I’m not a lawyer".
Contrary to the opinions of Bush administration lawyers, all of this lawlessness took place within a clearly defined legal environment. The United States not only signed onto the International Convention Against Torture but also enacted the legislation in Congress in 1994. Therefore the torture regime of the Bush administration and the CIA under it broke not only international law, but federal law as well.
When Obama’s Attorney General Eric Holder expanded Durham’s investigation to include looking at detainee deaths in CIA custody and the use of unapproved torture techniques in August 2009, he stressed that he would not prosecute people who "acted in good faith" using legal memoranda put together by Bush’s Office of Legal Counsel. These memos, the "torture memos", are what Bush refers to when he says "the lawyers said" his torture program was legal. The OLC memos authorized not only waterboarding, but also sleep deprivation and slamming prisoners into walls.
The torture memos were the subject of a separate investigation. But in what has become a dangerous pattern, the Obama Justice Department closed the book on that investigation as well, allowing for yet more crimes of the prior administration to go unpunished. In January 2010, the Office of Professional Responsibility (OPR) in the Justice Department released its report on the memos, clearing Bush administration lawyers of professional-misconduct allegations. The OPR decided that while the legal analysis authorizing torture reflected "poor judgement", it was not evidence of criminal professional misconduct.
To make matters worse, there is also evidence to suggest that the CIA was torturing prisoners well before the OLC memos were written.
A series of bad precedents have thus been set for future lawyers and governments. The next time an administration wants to extralegally kidnap, transport, detain and torture someone, they may feel free to do so as long as their lawyers authorize it. The lawyers will likely authorize illegal activity, given that their predecessors in the OLC were not punished for doing so during Mr. Bush’s time in the Oval Office. And the agents in the field will likely take illegal action to ensure that their dirty work, in the shadows of the world’s darkest corners, never see the light of day. After all, Mr. Rodriguez was not punished for destroying evidence of felony torture crimes.
While Mr. Obama repeats his "looking forward" mantra over and over again to a public and world community hungry for justice, George W. Bush couldn’t be happier. The Times quotes Mr. Bush’s new book, an excerpt in which the former President extolls the virtues of lawlessness and warns of the dangers accountability presents:
"Legal officials in my administration did their best to resolve complex issues in a time of extraordinary danger to our country. Their successors are entitled to disagree with their conclusions. But criminalizing differences of legal opinion would set a terrible precedent for our democracy."
Thus far, Barack Obama seems to agree with Mr. Bush. Could that be because Mr. Obama’s legal team has authorized the legality of extrajudicial assassinations of U.S. citizens? Is it possible that Mr. Obama, keenly aware of the constitutional protections against such government action, wants to ensure that his lawyers will not be prosecuted for similarly questionable legal opinions?
Justice forestalled is justice foreclosed. Prosecution of Bush Administration officials for conspiracy to commit torture would send a message to future governments: you are not immune from the rule of law. Unfortunately, the converse appears to be true.
And the message couldn’t be clearer to every petty dictator around the world: the self-proclaimed greatest democracy on earth does not abide by the rule of law. So why should they?