Eric Holder handed out the US Justice Department’s annual awards for distinguished service to a slew of department employees. Featured at the top of the awards announcement were the men and women who successfully prosecuted 10 New Orleans police officers for killing innocent civilians in the wake of Hurricane Katrina, and a US marshal who risked his life to protect a victim from a violent fugitive during the fugitive’s capture. But buried at the bottom of the list — the 13th of 14 “distinguished service awards” — was a more unusual awardee: Assistant US Attorney John Durham.
Durham and his team received the award not for bringing anyone to justice, but for declining to hold accountable anyone in the CIA for its brutal interrogations of detainees at secret prisons, or “black sites,” in connection with former president George W. Bush’s “war on terror”. “In order to conduct the investigations,” the citation reads, “the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations.”
There’s no question that Durham worked hard for a long time and that the investigation was complex and substantial. After all, more than 100 men “disappeared” into the CIA’s black sites for extended incommunicado detention and interrogation. Because the CIA prisons were a secret, everything that happened there is classified, complicating investigation still further. And because the investigation itself is secret, we cannot know precisely what evidence Durham considered, what roadblocks he faced, what judgement calls he made. But here is what we do know — many of those who “disappeared” into the CIA’s black sites were tortured and/or illegally subjected to cruel, inhuman and degrading treatment. Abu Zubaydah and Khalid Shaikh Mohammad, for example, were waterboarded 83 and 183 times, respectively. They and other detainees were stripped naked, doused with water, beaten about the face and stomach, slammed into walls, deprived of sleep for days on end, forced into painful stress positions and confined in small dark boxes for hours at a time.
And these were just the “authorised” torture tactics, given a green light by a secret memo written in August 2002 by John Yoo and Jay Bybee from the Justice Department’s Office of Legal Counsel (OLC) and specifically cleared by president Bush, then vice-president Dick Cheney, the then national security adviser, Condoleezza Rice, the then Attorney General John Ashcroft and former White House counsel Alberto Gonzales, among others.
We also know — thanks to the CIA’s own Inspector General — that CIA interrogators in the black sites went beyond even the illegal brutality authorised by high-level officials. One detainee was threatened with a handgun and a power drill. A mock execution was staged next to a detainee’s cell. Interrogators threatened to kill the children of another detainee if he did not tell them what they wanted to know. We also know that in 2005, CIA higher-up, Jose Rodriguez, had ordered the destruction of videotapes of two of those interrogations, shortly after the Washington Post revealed the existence of the CIA secret prisons where the interrogations took place and while the tapes were under request from several courts and a Senate committee looking into charges of abuse.
Durham cleared everyone in the CIA of accusations of wrongdoing. Does he deserve a medal for that? Maybe so, but then there are a few other recipients the attorney general left out. Surely Yoo and Bybee deserve medals for making the interrogations possible in the first place, by issuing a memo that Jack Goldsmith, director of the Office of Legal Counsel after Bybee, has called a “get out of jail free card.” Goldsmith himself, along with his successors as OLC heads under Bush — Daniel Levin and Steven Bradbury — also deserve medals for secretly allowing the torture tactics to continue even after the administration rescinded the initial memo when the Post published it.
Tellingly, the Bush administration could not publicly defend, even for a moment, what everyone had signed off on in secret,; but Goldsmith, Levin and Bradbury ensured, in subsequent secret memos and authorizations, that the CIA’s illegal program could go on. And what about Rodriguez himself, who valiantly ordered the destruction of the best evidence of the torture tactics? Surely erasing that evidence made it easier to clear all of responsibility, and warrants still another medal for distinguished service. But why stop there? What about the planners of the Guantnamo Bay military commission courtroom, who installed a thick Plexiglass wall between the well of the courtroom, where the defendants will sit, and the public, for the express purpose of shutting off the sound anytime a defendant dares utter a word about his torture at the hands of the CIA’s interrogators? Or the unnamed government official who made the brilliant and Orwellian decision to classify the detainee’s own accounts of what they suffered in the CIA black sites, ensuring that neither they nor their lawyers can talk publicly about what happened?
And while he is at it, why not give an award to David Margolis, the Justice Department official who vetoed the department’s own Office of Professional Responsibility, which had recommended referring Yoo and Bybee to their respective state bars for disciplinary charges in connection with the legal memos they wrote authorising torture?
And for that matter, President Barack Obama certainly deserves a medal for insisting that we must look forward, not back, and opposing even a bipartisan commission to examine the war crimes committed in the name of America.
All of these individuals played a critical role, surely as essential as Durham’s, in ensuring that no one would be accountable for the cruel and inhuman abuses that CIA interrogators inflicted on their captives. Why should Durham be the only one honoured for ensuring that in America, no one even has to say sorry for torture?
David Cole is professor at Georgetown University Law Centre and author of The Torture Memos: Rationalising the Unthinkable.