S.F. played key role in Obama’s stance on torture

President Obama’s resistance to taking legal action against U.S. interrogators or their enablers wasn’t included in the recent Senate report. It first surfaced in a San Francisco courtroom in February 2009, when the new administration confronted the case of a Bay Area firm that flew captives to foreign countries known for their brutality to prisoners.

Less than a month earlier, the newly inaugurated president had issued orders banning torture and closing CIA “black sites,” where some of the worst abuses had taken place. Obama had also declared that he considered the near-

drowning technique called waterboarding to be an illegal act of torture — while also telling an interviewer, in the first of many such statements, that “we need to look forward as opposed to looking backwards,” an apparent reference to his unwillingness to bring charges against anyone in the previous administration.

Obama’s statements seemed to pull in different directions. But the administration soon defined its legal path in the case of Jeppesen Dataplan, a San Jose subsidiary of Boeing that had been described by a European commission as the CIA’s aviation services provider.

In a damage suit, five men, some still locked up in foreign lands, accused Jeppesen of complicity in their torture during the George W. Bush administration. The government was not named as a defendant, but in arguments to the Ninth U.S. Circuit Court of Appeals, Obama’s Justice Department said the suit should be dismissed because it would damage national security by revealing state secrets.

Suit dismissed

“Judges shouldn’t play with fire,” the government’s lawyer told the court, which — after two hearings and a closed-door session with the Justice De- partment attorney — ordered dismissal.

The case showed that the Obama administration, while criticizing its predecessor’s treatment of detainees, opposed any form of legal retribution, or even allowing the evidence to be aired in court.

The theme recurred in cases across the country, including one in San Francisco involving John Yoo, a UC Berkeley law professor and former Bush administration lawyer.

As a Justice Department attorney in 2002, Yoo had written a memo defining torture narrowly, to exclude waterboarding, and declaring that the president could legally authorize torture in wartime. Obama rejected those positions, but his Justice Department supported Yoo’s successful defense against a suit by a Bush administration detainee who said Yoo had personally enabled his jailers to torture him.

The Justice Department later rejected a staff recommendation that Yoo and his former supervisor, Jay Bybee, who had approved the 2002 memo, should be referred to their state bars for possible disciplinary action for “unprofessional conduct.” Bybee is now a Bush-appointed federal appeals court judge.

Fast-forward to this month, when the Senate Intelligence Committee, in a 500-page sum- mary of a still-classified report, found that the CIA had tortured scores of suspected terrorists. Using methods not previously disclosed — like forced rectal feeding, coffinlike confinement and sleep deprivation for more than a week — the agency had failed to produce any useful information, the report said.

Torture is a crime under both federal law and an international treaty that President Ronald Reagan signed in 1988. Juan Mendez, the United Nations’ chief investigator of torture, has called for criminal prosecutions in light of the Senate report.

No recommendations

But the Senate committee did not address whether violations of those laws and treaties should bring punishment to the wrongdoers or compensation to their victims. And by focusing on CIA sites, the report bypassed “extraordinary rendition,” the agency’s past practice of abducting suspects abroad and transporting them, with the help of Jeppesen and other contractors, to countries known for brutal interrogation practices.

When asked about the report, Yoo questioned its credibility but said in an interview that some of the methods described by the committee went beyond any practices the Justice Department had approved, and that their perpetrators “are at risk legally.”

Obama’s response to the report was in line with his previous position: that the reported practices were “inconsistent with our values as a nation” but there was no need to “refight old arguments,” and the best course was to “leave these techniques where they belong — in the past.” And the Justice Department has again ruled out criminal prosecutions.

Several legal commentators said the administration’s position was disappointing in principle but understandable politically.

“I think somebody should be prosecuted, but some of these cases could be difficult,” said Allen Weiner, director of Stanford’s Program in International and Comparative Law, and a U.S. State Department attorney from 1990 to 2001.

CIA interrogators accused of lawbreaking could claim reliance on legal advice from the Justice Department, Weiner said, while the lawyers who gave that advice, like Yoo, could be convicted only if a jury found they had given advice they knew to be erroneous. If the administration prosecuted and convicted anyone, Weiner said, Obama would probably be accused of “criminalization of politics.”

‘Rationalizes torture’

Another analyst said the apparent political advantage of inaction was illusory.

“In an ideal world, we would live up to our international obligations, but on very practical grounds ... the entire U.S. establishment is obviously disinclined to do that,” said Joe “Chip” Pitts, a lecturer at Stanford Law School and former chairman of Amnesty International USA. He argued that a refusal at the highest levels to prosecute harms national interests because it “rationalizes torture by dictators around the world.”

The U.S. owes something to the captives it released without charges after many years of confinement under harsh conditions, said Laurel Fletcher, director of the International Human Rights Law Clinic at UC Berkeley. She and a Berkeley colleague, Eric Stover, interviewed 62 freed Guantanamo prisoners, mostly Afghans, for their book “The Guantanamo Effect” and found their lives in a shambles — most were unemployed and in debt, many had lost their families, and they typically suffered from emotional trauma and continuing stigma as terrorism suspects.

“What they want is their lives back,” something Obama could help to accomplish by ordering compensation and clearing their names, Fletcher said.

Beth Van Schaack, a visiting professor of human rights law at Stanford, said other accountability measures could include lifting the gag orders that prohibit prisoners at Guantanamo from talking with their lawyers about conditions of their confinement, and declassifying the rest of the Senate report.

“Can’t we find a way to pay reparations to those individuals who were seriously mistreated in our custody?” Van Schaack asked. “Could we not issue a formal apology?”