WASHINGTON — A six-year-old memo from within the George W. Bush administration that came to light this week acknowledges that White House-approved interrogation techniques amounted to “war crimes.” The memo’s release has called attention to what has changed since President Barack Obama took office, but it also raises questions about what hasn’t.
The Bush White House tried to destroy every copy of the memo, written by then-State Department counselor Philip Zelikow. Zelikow examined tactics like waterboarding — which simulates drowning — and concluded that there was no way they were legal, domestically or internationally.
“We are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here,” Zelikow wrote. The memo has been obtained by George Washington University’s National Security Archive and Wired’s Spencer Ackerman.
On his second full day in office, President Barack Obama formally disavowed torture,banning the types of techniques Zelikow had objected to so strongly in his memo.
But while Democrats are using the memo as evidence of a new post-torture era under Obama, human rights activists, civil libertarians and opponents of excessive secrecy say they see many ways in which the country’s moral compass is still askew — and in some ways even more so than before.
“If your baseline is the Bush years, it’s night and day,” said Tom Blanton, director of the National Security Archive. “If your baselines are a set of first principles, as the ACLU calls for, or as us openness advocates call for, then your situation is: Is the glass half full or the glass half empty?”
Obama has refused to pursue legal action against those who may have engaged in law-breaking under his predecessor’s watch — saying he prefers to “look forward instead of looking backward.” To some, this indicates there is little assurance that the U.S. won’t torture again in the future.
“The administration has clearly disavowed torture, and that is an important and welcome thing,” said Jameel Jaffer, a national security expert at the American Civil Liberties Union.
“But they’re steadily building a framework for impunity.”
When it comes to issues like warrantless surveillance, “continuity is the rule and not the exception and in fact in some very important areas this administration has gone even farther than the Bush Administration did,” Jaffer said.
Most alarming, says Jafeer, is the issue of the targeted killing of American citizenswho are terrorism suspects.
Jaffer said the idea that the government can mark an American for death without any judicial oversight is something the framers of the Constitution “would have found totally foreign to the project they were engaged in.”
“I think there are many Democrats out there who are quiet because they trust President Obama,” Jaffer said. But, he added, “there’s no doubt that the power we’re giving President Obama will be available to a future president.”
Jaffer noted that another way things may be worse today than during the Bush era is that at least back then, many people thought things would change dramatically once Bush left office, and that his actions wouldn’t establish legal precedents.
“We didn’t worry so much about that because the Bush Administration was seen as an outlier and an aberration, and the Bush precedent wouldn’t have been seen as weighty,” Jaffer said. By contrast, “It’s not at all difficult to imagine [future presidents] citing President Obama in their defense of carrying out more targeted killings of American citizens.”
“Now we’re making many of these emergency powers permanent … and bipartisan. We’re enshrining these things into our permanent law.”
Kate Martin, director of the Center for National Security Studies, sees some good and some bad in terms of where the government stands on national security issues today. “The Obama Administration has made significant and substantial changes to counterterrorism policy as it relates to human rights and civil liberties — for example, in their detention policies and their recognition of the limits of military power and the importance of following traditional laws of war in an armed conflict,” she said.
And yet, she said: “The administration has done much less to fix the problems of too much surveillance, without enough good reasons, of too many people.”
Transparency about what the administration is doing and why “is mixed,” she said, with both “important disclosures and inexplicable withholdings.”
Blanton, director of the National Security Archive, said he doesn’t think it is all Obama’s fault. He blames congressional Republicans for blocking Obama’s attempts to close the Guantanamo prison, for instance, and the intelligence agencies for much of the rest.
“The intelligence agencies are at the front of the resistance,” Blanton said. “They’re resisting accountability for what they themselves did.”
Ten months into Obama’s presidency, White House Counsel Greg Craig resigned, a move some saw as a purge and grim sign for any hope that the president would keep fighting on these issues. Craig is known to have advocated strongly for Obama to hold fast to the principles that he has espoused in regards to dealing with torture suspects — regardless of the immediate political consequences.
Where does that leave us? “I wouldn’t call us an outlaw nation,” Blanton said, “but I don’t think we’ve come to terms with our gang period.”