Is the U.S. really against torture? It can be hard to tell

President Barack Obama brought the U.S. commitment against torture into sharper focus on Wednesday. For a president who prohibited torture as one of his first official acts, this shouldn’t be news. But it is.

Elisa Massimino

At issue is Washington’s interpretation of the United Nations Convention Against Torture. Seeking to exempt American abuse of detainees overseas, President George W. Bush had broken with his predecessors and claimed that the treaty didn’t apply outside the United States. This strained reading flew in the face of American values, the rule of law and the text of the 1987 treaty.

Despite Obama’s early executive orders in 2009, the administration had never officially repudiated that position. But Wednesday, as a U.S. delegation prepared to appear before the U.N. committee that monitors treaty compliance, the White House announced it would reaffirm that the agreement applies beyond U.S. borders.

The devil, however, is in the details. The administration’s statement says the treaty applies to “places outside the United States that the U.S. government controls as a governmental authority.” That sounds reasonable — unless it means that torture at CIA black sites, or at prisons in Iraq and Afghanistan, would be exempt because the United States wasn’t the “government authority” in those places.

Such strategic ambiguity was exploited by Bush administration lawyers to give the veneer of legality to abusive interrogation techniques. After the Bush administration’s trip to the dark side, engaging in “enhanced interrogation techniques” and other cruelty after 9/11, the Obama administration can’t afford to be nuanced on the subject.

Other countries will likely view any ambiguity in the administration’s position as a hedge. And after the incidents at Abu Ghraib and CIA black sites, who can blame them?

To reclaim moral standing, Obama needs to show the world — and Americans — that the U.S. government is unconditionally opposed to torture in all contexts, and that it is prepared to face up to what it did in the years after 9-11, to ensure that it never makes the same mistake again.

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Yet Obama’s stated desire to “look forward, not back” has been central to denying the public reckoning that the nation needs. In the absence of such a reckoning, polls shows support for torture has increased. The public has come to see torture as a viable policy option — one that Bush was for and Obama is against. Many Americans don’t regard torture as the immoral and illegal act it is.

The Bush administration’s embrace of torture after Sept. 11 broke the national consensus against it. And it remains broken. Unless it is repaired, it’s entirely possible that a future president could reauthorize torture — and undo Obama’s executive order with the stroke of a pen.

Obama’s decision not to prosecute the perpetrators or authors of the previous administration’s torture policy, coupled with the apparent ambiguity in the Obama administration’s legal interpretations of the treaty, make it even more critical that the White House seize the opportunity presented by the Senate Select Committee on Intelligence’s landmark report on the CIA’s “enhanced interrogation” program to rebuild the national consensus against torture. A bipartisan majority of the committee voted to adopt the report, declassify it and release it. Leading Republicans, including Senators John McCain (R-Ariz.) and Lindsay Graham (R-S.C.) supported this.

But the president was slow to back the report’s release and instead allowed the CIA to decide on all redactions — despite the agency’s conflict of interest and possible illegal monitoring of the intelligence committee staff.

Release of the report’s findings has been delayed for months as the CIA tussles with Senator Dianne Feinstein (D-Calif.), chairman of the Senate intelligence panel, and other committee members over the redactions. Feinstein insists that some CIA redactions have no national-security rationale and “eliminate or obscure key facts that support the report’s findings and conclusions.”

The good news — for Obama’s anti-torture legacy and the nation — is that the president can still ensure that the report’s findings are released. There are signs that the White House has removed CIA redactions in some sections.

Ultimately, however, Obama should defend the right of all Americans to see the truth about what their government did in their name — despite the CIA’s efforts to hide it. He needs to act fast, however. Senator Richard Burr (R-N.C.), who is on record defending torture, is due to become chairman of the intelligence committee when Republicans take control of the Senate in January. If given the chance, he will likely ensure that the report never sees the light of day.

Running out the clock appears to be the CIA’s plan as well. But CIA Director John Brennan works for Obama. If the report gets buried, the president may well be remembered as the leader who brought our country back from the dark side — but left the door open.

PHOTO (TOP): President Barack Obama makes a point as he delivers remarks at Organizing for Action’s “National Organizing Summit” in Washington, February 25, 2014. REUTERS/Joshua Roberts

PHOTO (INSERT): President George W. Bush, Vice President Dick Cheney (C) and Secretary of Defense Donald Rumsfeld arrive to speak at the Pentagon, May 10, 2004. REUTERS/Kevin Lamarque