Barack Obama vowed to restore America's commitment to international law but that means investigating his predecessor. Among the many challenges, foreign and domestic, facing Barack Obama at the dawn of his presidency, one of the most daunting may be reckoning with the deeds of his predecessor. During the campaign Obama spoke, forcefully against the Bush Administration's cavalier attitude toward its commitments to other nations and promised the start of a new era. "Promoting strong international norms helps us advance many interests, including non-proliferation, free and fair trade, a clean environment, and protecting our troops in wartime," he said in one campaign speech. "Respect for international legal norms also plays a vital role in fighting terrorism. Because the [Bush] administration cast aside international norms that reflect American values, such as the Geneva Conventions, we are less able to promote those values abroad."
Obama moved quickly to dismantle some of the most troubling Bush practices: he signed an order to outlaw torture, and required that the CIA abide by rules on interrogations that had been prepared for the military. Obama halted the system of renditions coupled with torture by co-operating foreign states, and ordered the closure of the CIA's notorious black sites - though some aspects of the renditions programme appear likely to continue. He announced that he would shut down the prison at Guantanamo Bay within a year, and put a stop to the military commissions for prisoners there.
But grappling with the legacy of the Bush administration may require more than reversing its policies. As a debate simmers in Washington between those eager for an investigation into possible crimes and those prepared to "look forward, not backwards", the choice may not be so simple: one of the requirements of international law is that a state hold to account those who have violated certain mandatory rules. And the most powerful and best established of all the prohibitions is the one against torture.
The United States had been a long-standing advocate of the view that torture was a jus cogens crime under international law - a fundamental norm no nation may violate. This is why it ratified and implemented the Convention Against Torture under Ronald Reagan. But soon after September 11, the Bush Administration proceeded to systematically implement torture techniques as a matter of policy. After career government lawyers discovered what had been done and warned that torture was a crime and those using torture might be prosecuted, the Bush Administration resorted to what soon became a modus operandi: it instructed the Justice Department's Office of Legal Counsel to issue opinions deeming its schemes to be legal - enshrining torture as a lawful practice.
This scheme began to fall apart before Bush had even departed Washington. Susan J Crawford, the senior-most Bush Administration official responsible for the Guantanamo military commissions, told the Washington Post's Bob Woodward in January that one Saudi prisoner, Mohammed al Qahtani, had been tortured. "His treatment met the legal definition of torture," she said, explaining that she therefore could not refer his case for prosecution.
These disclosures were shocking not just because torture is a felony under American law, but because a prior Pentagon report and related testimony had tied the treatment of al Qahtani very closely to Donald Rumsfeld, who was said to have personally approved every aspect of al Qahtani's interrogation. Six days later the mantle of leadership passed to Barack Obama, and with it the question of what to do about the now pervasive evidence that prisoners were tortured - with the knowledge and approval of senior administration officials, in some cases including George W Bush and Dick Cheney. Under the Convention Against Torture, states are obligated to make torture a crime and to enforce the criminal statute. In particular they are obligated to at least initiate a criminal investigation of credible allegations of torture. The Crawford interview was far more than a "credible allegation": it was a judicial conclusion by a trained lawyer and judge, formed on the basis of a review of official records.
In the Bush era, criminal investigations had been stymied by order of the attorney general, relying on the quaint theory that opinions issued by his staffers immunised Bush officials from any criminal liability. Indeed, both Bush and Cheney gave exit interviews in which they stressed that they relied entirely on what their lawyers told them. Under international law, however, the prohibition on torture may never be suspended, and there are no exceptions for taking the advice of a lawyer.
Obama took office clearly reticent about launching a criminal investigation into the acts of his predecessor. But most observers expected Bush to exit with a flurry of pardons to his senior aides and possibly even to himself. The pardons were not issued, and therein lies Obama's dilemma: under international law he is clearly required to have his attorney general open a criminal inquiry into the torture issue, but he is wary of appearing to persecute Bush.
Public opinion, however, is rapidly turning in favour of further steps to hold Bush and his team accountable. A recent Gallup poll found nearly a two-thirds majority in favour of a public inquiry or criminal investigation into the torture of detainees. This is more than a domestic political debate in the United States: it may well decide the future viability of the Convention Against Torture and the Geneva Conventions. If the world's sole superpower can embrace torture and flout the Geneva Conventions, there is good reason to doubt that either of these instruments - usually regarded as the bedrock of international law - will have much meaning. Other governments around the world will be able to follow the same practices, claiming they too merely relied on the opinions of lawyers to avoid prosecution. In the end it may turn out that Bush officials did not merely violate international law - they crippled it, with baleful consequences for non-Americans and Americans alike.
As Crawford told the Washington Post, "If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it." In seeking to elide the past in the service of political comity in the present, Obama and his team risk endangering the stature of international law in the future. Where Crawford was blunt and forthcoming, the Obama administration has done what it can to prevent additional details of the Bush torture programme entering the public record.
In proceedings before the High Court in London surrounding an Ethiopian national given protection in the UK, Binyam Mohamed, the Bush administration insisted that UK authorities withhold information on how the prisoner had been tortured. The High Court judges expressed astonishment that the Obama administration had persisted in the same position. The Obama administration's insistence on secrecy is provoking a parliamentary inquiry in Britain and leading to sharp criticism of the "special relationship" under which British and American intelligence authorities collaborate closely in their operations—apparently in programs including the use of torture.
In a case before an American appeals court in San Francisco, the Obama Administration similarly clung to the notion of state secrets to avoid disclosure of elements of the Bush era extraordinary renditions programme. The case involved a suit by torture victims against Jeppesen, a subsidiary of Boeing, which was picked by the CIA as a prime contractor for the extraordinary renditions programme. The Obama Administration, like its predecessor, insists that Jeppesen's work for the CIA is a state secret—notwithstanding the fact that it was briefed to employees, several of whom quit rather than co-operate in a programme that was criminal in nature, and has been fully exposed in a series of newspaper and magazine articles. The appeals court ruling has yet to be issued, but the judges were openly critical of the Obama Administration's secrecy arguments throughout the hearing.
These cases measure the difficulty Obama faces in his attempts to undo what has come before him. He insists he is reversing the prior administration's policies - and, he has in part done so. But the embrace of state secrecy to conceal criminal acts is a policy impossible to distinguish from that of Bush - and indeed, one complicit in the misdeeds Obama has vowed to correct.
Scott Horton is a Distinguished Visiting Professor at Hofstra Law School in New York and a contributing editor at Harper's Magazine.