The recent release of a video showing the brutal torture of a grain dealer accused of short-changing Sheikh Issa bin Zayed al-Nahyan, one of the United Arab Emirates’ (UAE) 22 sheikhs, is a rare and graphic depiction of the reality of torture. The response of the US State Department, urging “all governments to investigate allegations of criminal acts” has been predictably tepid.  One of the greatest staines on the reputation of the Bush administration was allegations of torture by the CIA of terror suspects and secret renditions to third countries where suspects were allegedly tortured. To his credit, Barack Obama recently chose to declassify documents detailing CIA “harsh interrogation” techniques, techniques that he banned during his first week in office.

Yet in spite of his repudiation of torture as a legitimate method of interrogation, Obama has refused to allow those responsible to be prosecuted saying that “those who carried out their duties relying in good faith upon legal advice from the Department of Justice… will not be subject to prosecution”. In saying this Obama managed to violate not only the Constitution of the United States, which clearly separates the mandate of the executive and the judiciary, but also the United Nations Convention Against Torture of which the US is a signatory.

Article 1.1 of the convention clearly defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession”. Article 4 commits all signatory states to punishing those convicted of torture and crucially in this instance, Article 2.3 clearly states that “an order from a superior officer or a public authority may not be invoked as a justification of torture.”

The Convention Against Torture aside, Obama’s logic of sparing those accused of involvement in such acts on the grounds that they were only obeying orders is highly flawed and deeply dangerous. In saying this, what Obama has effectively done is endorsed the view that it is alright for citizens to violate human rights and international law on the ground that their government says so. This is not the way to go about running an accountable democracy with genuine respect for the rule of law, nor is it the way to set an example that you wish others to follow, not least the UAE.

Obama’s decision is all the more bizarre in light of his public condemnation of torture as a method of interrogation, and moreover, given his public desire to reintegrate the US back into the international human rights framework. At the end of March 2009, the US announced its  intention to join the UN Human Rights Council (UNHCR) and insodoing put forward its “Human Rights Commitments and Pledges“, a document that all UNHCR members produce. One of the first sentences declares:  “As the United States seeks to advance human rights and fundamental freedoms around the world, we do so cognizant of our own commitment to live up to our ideals at home and to meet our international human rights obligations”.

These lofty aspirations seem hollow in light of Obama’s recent statements. Some commentators have called on critics to be more “pragmatic”, arguing that terror suspects pose a very real threat to national security. Much public opinion appears to support this view. According to World Public Opinion, on average, just nine per cent of people support the use of torture as a legitimate method of interrogation. That figure balloons to 26 per cent if used “on terrorists to save innocent lives”.

Former US vice president Dick Cheney has called on Obama to release memos detailing the efficacy of torture at obtaining confessions. Yet to accede to this logic is to set another very dangerous precedent. By its very nature, torture operates outside the rule of law and serves as an alternative to legitimate interrogation as a means by which to extract information. It goes without saying that torture does not come with a fair trial. The reason members of the public believe it is more acceptable to torture suspected terrorists is that they cannot envisage themselves being included in that group. Yet, in the abscence of a fair trial, what is there to distinguish between a dissident and a terrorist, or to distinguish between a genuine and a false confession with any degree of certainty?

Likewise, those suspected of torture must be tried. To try is not automatically to prosecute. There are some who say that the methods used by the CIA fell short of actual torture because they left no lasting physical or psychological damage and were not intended to cause severe pain. If a court agrees then the accused will be acquitted and the CIA’s reputation would be greatly improved by submitting to the process. But justice must be allowed to take its course and to be seen to do so. If the rule of law is to have legitimacy then no-one can be above it, not even the security services. Furthermore, the investigation must be permitted to go to the very top if it deems it necessary, up to and including trying the  former president. If Barack Obama fails to allow an investigation into the CIA torture cases, then he cannot protest the actions of Sheikh Issa with any degree of legitimacy. This is not to say that those members of the CIA accused of torturing terror suspects went about it with anything like the same degree of severity and sadistic pleasure of Sheikh Issa. But torture is torture. Either it is permissable or it isn’t. The US cannot adopt a “do as I say, not as I do” approach to foreign policy; it must lead by example. Obama’s decisions to close Guantanamo Bay and to outlaw “harsh interrogation” were almost universally popular and in that sense they were easy. For Obama at least, the question of whether or not prosecutions should be permitted may not be so straightforward. But if he is not willing to take that decision then he cannot complain if and when the UAE’s “investigation” into Sheikh Issa’s behaviour fails to deliver justice. In fact, he might as well just tell the sheikh to carry on.

Tags: CIA, torture, UAE, US

This entry was posted on Sunday, May 3rd, 2009 at 2:01 pm and is filed under Americas. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.