Overlords of US Torture Must Be Punished
The exposure of President Obama's order to release documents about
violent interrogations could have a knock-on in Britain

Published on Sunday, April 19, 2009 by The Independent/UK
by Alex Carlile

The US Ninth Circuit Court of Appeals Judge Jay S Bybee presides with
apparent comfortable authority over his high jurisdiction. The Ninth
Circuit is the largest. The great cases of the West Coast states are
argued out before him. His record as a lawyer is notable. He has to
his name a distinguished volume on the Eighth Amendment: we can assume
that seared in his mind are its words: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people".
Given numerical, historical and rhetorical proximity of the Ninth to
the Eighth Amendment - "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted"
- one can be reasonably sure that this leading US judicial authority
is an assiduous enforcer of the rights of the individual against the
federal government; that he will ensure that torture or other inhuman
or degrading treatment is not meted out against persons in custody;
and that the government is brought to account whenever those great
constitutional rights are under attack.
Or is there a huge "maybe" against Judge Bybee? If so, does it have
transatlantic implications in the heart of Britain? In an
extraordinary event of the past week, President Barack Obama, himself
a distinguished American jurist, with a profound understanding of what
he may now regard as his own Constitution, has exposed Bybee's
complicity in a terrifying case of double standards.
It took real Presidential courage, and public disclosure of a kind
almost unimaginable in the traditionally cautious thinking of British
governments of all colours, to release to documents detailing
decisions about the unusual treatment of al-Qa'ida suspects. It is
likely to lead to a change of heart by the US gove
ur own courts of documents concerning cases like that of Binyam
Mohamed. The newly released documents are now available
online. Included is one dated 1 August 2002. It is long and
detailed. Eighteen full pages closely typed and single-spaced. It is
signed in the manuscript of Jay S Bybee, as the holder of the powerful
and influential position of US Assistant Attorney General. It is
addressed to another lawyer, John Rizzo, of the CIA.
One can almost imagine the fictional agent Jack Bauer, waterboard in
hand, palpitating Abu Zubaydah before him, as he read it. The opinion
discusses 10 techniques of "certain proposed conduct". The list is
chilling: (1) attention grasp, (2) walling, (3) facial hold, (4)
facial slap (insult slap), (5) cramped confinement, (6) wall standing,
(7) stress positions, (8) sleep deprivation, (9) insects placed with
the subject in a confinement box, and (10) the waterboard. All are
sanitised descriptions of something very unpleasant indeed.
Bybee's conclusion is that the use of those techniques, either
separately or in combination, would not violate US law, because, as he
put it, "no evidence exists that this course of conduct produces any
prolonged mental harm". Had Mr (as he then was) Bybee made that
submission in the Queen's Bench Division in London, he would have been
given the shortest shrift, as befits the intellectually indefensible.
President Obama has been criticised by some, including the respected
American Civil Liberties Union, for discouraging prosecution of US
agents who followed Bybee's now notorious opinion. Put crudely, those
who may have administered what we would regard as torture will get
away with it. They were merely obeying orders, so may be excused.
This is not only an unattractive proposition but one with which I do
not agree, at least when considering those who may have been involved
at a senior level. The revelations made on Presidential orders seem to
me a refreshing change of approach, telling the world that the slate
is being cleaned of executive acts of a kind ded notion of ethics in
the governmental process rears its head from time to time, usually to
be dashed by scandal or convenience. Pragmatic incrementalism is all
too easy, the disease afflicting all governments when they feel
compelled by the exigencies of the day to compromise on
principle. President Obama has made a balanced choice, weighing
proportionality in favour of confessing America's wrongs to the world
as a promise, given in earnest, of better things to come, but letting
off the hook those who were the instrumentalists of the unacceptable.
However, that is not the end of the matter. What about the conductors
- the Jay S Bybees and others who may have been the conductors of the
discordant and wailing orchestra of inhuman and degrading
interrogation? And what if there were any orchestrators from Britain
or other allied countries? The Attorney General, Baroness Scotland,
announced the beginning of a police inquiry into the Binyam Mohamed
case and possibly others. What, if anything, results will depend on
evidence and, even if there is evidence, formidable considerations of
public interest will arise.
Perhaps President Obama has set an acceptable starting standard - of
opening the issue to judgment in the court of public opinion, with a
view to a future in which we accept that civilised behaviour is worth
a thousand forced confessions.
Yet that cannot be an end of the matter. If, there or here, evidence
points to high level, unpalatable, unethical and possibly criminal
advice, the conductors should be called to public account. Promotion
to judicial office is not an acceptable option in those circumstances.
© 2009 The Independent
Lord Carlile of Berriew QC is the Government's independent reviewer of
terrorism legislation