On torture, the president ceded the field to Bush apologists, says the author. | AP photo Bin Laden dies, torture thrives

The unity and pride inspired by the killing of Osama Bin Laden has quickly deteriorated into a nasty debate over the effectiveness of torture.

The administration is reportedly upset by this diversion. But President Barack Obama has nobody to blame but himself.


While President George W. Bush took the nation down the dark path to torture, Obama ensured that it remained part of our national debate by failing to investigate and hold to account those who tortured.

His failure to do so means that we now debate publicly whether or not to torture based on assessments of whether or not torture is effective – a question relevant only if we accept that effective torture is justified. Torture, it seems, is no longer immoral or unlawful so long as it works.

The current debate offers occasion to consider the distance we have covered in legitimating torture. In 1984, President Ronald Reagan — no national security softy — signed the U.N. Convention Against Torture. In his signing statement, Reagan denounced torture as an “abhorrent” practice and emphasized the need for universal jurisdiction to prosecute individuals who engaged in torture or other cruel, inhuman or degrading practices.

The convention, later ratified by the Senate, obligates nations to prosecute treaty violators. At the time, it was unthinkable that the United States – the world’s beacon for human rights — would make use of torture and cruel practices official policy. Indeed, Congress passed legislation to make torture a criminal offense.

In 2003, the nation was horrified by the images of detainee abuse emerging from Abu Ghraib prison and large majorities of Americans thought the practices unconscionable. When Bush left office, even after his apologists had conducted a vigorous pro-torture campaign, a majority of Americans still opposed the use of torture.

But after Obama had been in office for a year, polls showed that a majority of Americans thought a little torture in the right circumstances was a good thing. What happened?

On his first day in office, Obama issued his admirable executive order prohibiting torture and cruel, inhuman or degrading practices. Then, however, instead of sealing the deal, he ceded the field to Bush apologists — notably former Vice President Dick Cheney and the Fox megaphone to hammer home the pro-torture message.

Obama went silent – presumably for political reasons — as his administration pursued its domestic agenda, including the economic stimulus package and health care. He ignored calls for a commission to investigate and expose misdeeds of the Bush administration. He ran from calls for a full-scale investigation of individuals who engaged in torture.

Though Attorney General Eric Holder opened a limited reappraisal of previously closed cases, there was never serious consideration of a larger inquiry.

Obama had an opportunity to ensure that the United States would not descend easily into torture again — by pressing for full exposure, unremitting condemnation and harsh punishment of those who authorized and executed it. His failure to drive home that torturers would be subject to the full force of the law transformed the use of torture from a taboo into a policy debate.

Obama’s refusal to follow through on our nation’s commitment to the rule of law – both domestic and international – allowed the rehabilitation of the Bush administration’s Office of Legal Counsel attorneys, who wrote the memos permitting torture, and the lawless White House officials, who cast aside domestic law, the Convention Against Torture, the Geneva Conventions and a tradition dating to George Washington of humane treatment of detainees by Americans during conflict.

The torture apologists are taking full advantage of this opening to justify the Bush administration’s use of waterboarding, sleep deprivation, extreme temperatures, the slamming of detainees into walls and stringing them up in “stress positions” for extended periods.

Not only are they using this argument to cement the case against holding accountable torturers of the past, they are even condemning Obama for ending the CIA’s “harsh interrogation” program. They are urging a return to torture.

Obama exhibited strong and courageous leadership in bringing to Bin Laden the justice that he so plainly deserved. It is a shame for the future of America that he did not exhibit that same leadership in exposing the abuses that followed 9/11 and demonstrating to the world that America will not tolerate torture and will hold violators accountable.

It is also a shame that the debate over torture sullies the masterful triumph of intelligence professionals who found bin Laden through years of painstaking work. Their accomplishments and those of Obama in protecting our national security should not be muddied by the residue of torture.

The failure to wipe the slate clean — and not marginalize as aberrational those who preach torture — ensures that the debate will continue.

Sadly, this makes it more likely that America will lapse again.

William Yeomans, an American University law professor, served as Sen. Ted Kennedy’s chief counsel on the Senate Judiciary Committee and as a Justice Department official.