Overlords of US Torture Must Be Punished
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 government about the disclosure to our 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 that will not appear again.
The much derided 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.
