Our country’s embrace of torture after 9/11 may have seemed like a quick one: one day we didn’t torture, and the next we did, with the so-called “torture memos” to blame for the rapid shift. But the reality is that proponents of “enhanced interrogation techniques” (and other euphemistically titled cruelties) had to overcome substantial barriers in their efforts to justify torture. The first major barrier fell 10 years ago, today—many months before the torture memos were issued.
On February 7, 2002, President Bush signed a memorandum, Humane Treatment of Taliban and al Qaeda Detainees, that became his administration’s opening volley against the laws prohibiting abusive interrogations. In it, he concluded that the Geneva Conventions—which specify minimum standards of humane treatment for everyone in times of armed conflict—somehow did not protect al Qaeda members detained by the United States.
That legal sleight of hand paved the way for the more notorious torture memos that would follow, and it all but ensured a break from our country’s tradition of treating captives humanely.
The February 7, 2002, memo is important for another reason. Together with the later memos that built upon its twisted logic, the February 7 memo created a golden shield for the senior officials who authorized torture. When later confronted in court by the victims of their unlawful policies, senior officials could simply hide behind their legal memos.
Unfortunately, that tactic has worked so far. Courts have refused to rule on the legality of the cruel interrogation “techniques” used in the years after 9/11, and there has yet to be a criminal investigation of those who authorized torture.
The only criminal investigation of the CIA to date has been of low-level interrogators who exceeded the torture memos’ guidance, resulting in the death of two detainees. Although the attorney general himself stated that interrogators involved in those deaths did “things . . . that were antithetical to American values [and] that resulted in the death of certain people,” recent reports suggest that the investigation may end soon without any indictments and without any accountability. We hope that doesn’t turn out to be true if there is credible evidence to prosecute. Our nation’s reputation for upholding the human rights of detainees is already in tatters; a failure to provide accountability even for deaths would further shred it.
A decade after our government first committed us to a path including torture and other abuses, it is essential that we pause now to reflect on those policy decisions. To its credit, the Obama administration has rejected the Bush administration’s narrow understanding of the Geneva Conventions, which essentially read them out of existence in our fight against al Qaeda. But if we are truly a country committed to the rule of law, we must insist that our laws criminalizing torture and abuse be applied, and that they be applied equally to all who bear responsibility for official cruelty.