The Broader Political Issues Surrounding the Torture Report

December 12, 2014 Updated: April 23, 2016

Sometimes politics does not make any sense. For example, take President Obama’s White House trying to whip votes for Speaker John Boehner (R-OH) for the so-called cromnibus bill to keep the government funded. But sometimes politics is just that, politics.

The release of the Senate’s executive summary for their “torture report” that documented the detention and interrogation practices of the CIA in the months and years after the 9/11 attacks has been subjected to differing views. Several Republicans refute the conclusion of the Democratic majority’s report that “enhanced interrogation techniques” did not provide useful intelligence as well as the methodology of the seemingly partisan study. Many current Republican members of Congress and former CIA and Bush administration officials believe not only did these techniques gain real results but they were legal. Torture is illegal under US and international law, which is why during his rare press conference yesterday, CIA director John Brennan eschewed the term.

Former Bush administration Office of Legal Council (OLC) lawyer John Yoo, who helped craft the legal standards of the enhanced interrogation techniques, stated on CNN this week “I could be wrong about this, but I think many reasonable Americans, if they were told about those methods in the context of 9/11…would say many of those [methods] are reasonable under the circumstances and don’t rise to the level of torture…[W]aterboarding is the closest to the [torture] line…[T]his is how we thought about waterboarding at the time and again this is only to be used in the context of that moment when we are struggling to get information right after 9/11 on only the highest level of al-Qaeda leaders…” Those in the administration at the time justified their actions by saying they had legal cover from Justice Department memos. Though, liberals want those involved to be prosecuted for breaking the laws by “torturing” detainees.

The biggest concern surrounding this issue is that those involved still do not believe they did anything wrong – or at the very least, given the circumstances, the actions were justified to save lives. Some have made reference to the “South-African-style Truth and Reconciliation Commission that would condition amnesty on confession of wrongdoing” as a means of dealing with this sensitive subject. American Civil Liberties Union Executive Director, Anthony Romero penned in an op-ed that those involved in the interrogation techniques should be pardoned by Obama because merely issuing a pardon acknowledges crimes took place.

Republicans on the other hand are still upset about the release of five Taliban prisoners over the summer in the prisoner swap of US Army Sergeant Bowe Bergdahl who was held by Taliban affiliated militants for years. Republicans assert President Obama broke the law in the transfer by not notifying relevant Congressional committees 30 days in advance as statutorily mandated.  According to the Obama administration, Sgt. Bergdahl’s life was in dire jeopardy and intervention was necessary to save his life, thus not needing to notify Congress.  Concerned members of Congress and the American public believe trading five battle hardened Taliban members for one Army Sergeant whose faith in the armed services was questionable, is a terrible and dangerous deal.

A report by the nonpartisan Government Accountability Office (GAO) concluded, “that DOD violated [the law] [] because it did not notify the relevant congressional committees at least 30 days in advance of the transfer.” However, a legal response to the GAO report from the administration asserted: 

“[the law] states that the Secretary [of defense] ‘shall notify the appropriate committees of Congress of a determination . . . under subsection . . . (b) not later than 30 days before’ a covered transfer, but [the law] [] specifies no consequence for the failure to make that notification. Thus, while [the law] [] imposes a legal requirement that the Secretary provide Congress with notice 30 days before making certain transfers, neither it nor any other provision of [the law] [] states that a transfer that is otherwise authorized by [the law] [] is rendered unlawful by the absence of the notification…In those circumstances, providing notice would have interfered with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. service members. Such interference would ‘significantly alter the balance between Congress and the President,’ and could even raise constitutional concerns; and courts have required a ‘clear statement’ from Congress before they will interpret a statute to have such an effect.”

Both primary American political parties appear to be at odds over virtually the same issue relevant to their party affiliations – the government maintains that extenuating circumstances allow them to break the law.  Many on the right are coming to the aid of the Bush administration in light of the torture report and similarly, those on the left are coming to the aid of the Obama administration for saving the life of Sgt. Bergdahl.  It’s clear America is as politically polarized as ever.

Despite John Yoo’s “extremely broad view of executive authority,” to his credit, he has stayed true to his advocating for controversial actions taken by President Obama, namely, the president’s seemingly congressionally unauthorized “war” against the Islamic State. Objectivity is generally something that is not very often associated with politics.