Torture, War and Presidential Power: Thoughts on the Current Constitutional Crisis

Excerpt from the new publication The United States and Torture, edited by Marjorie Cohn
12 January 2011

Despite evidence that torture was used to extract false confessions in the lead up to the war in Iraq, the Obama administration continues to block efforts to abolish torture and restore justice and the rule of law.

The year 2009 initially brought sharp relief to torture abolitionists in the United States and around the world, as President Obama, in his first week in office, signed three executive orders:

  1. Closing Guantánamo in January, 2010,
  2. Creating a task force to examine policies towards prisoners caught up in the “war on terror,” and
  3. Mandating lawful interrogations in compliance with the Army Field Manual and international agreements.[1]

All of these appeared to be major victories for the movement against torture and in favor of international humanitarian law and adherence to related international treaties.

Yet, virtually as fast as the orders were signed, the Obama administration began to backtrack radically on key areas affecting the question of torture and related war crimes. What appeared to be a clear difference between the candidates during the Presidential campaign quickly morphed into an increasingly blurred similarity between Obama and what Professor David Luban calls the “liberal ideology of torture” that now pervades life in the United States and some of its allies.[2]

Even if Guantánamo is eventually shut down - a prospect made more difficult by Congress’s stripping of project funding - the administration has made clear that prisoners caught up in the so-called war on terror will be subject to the same legal black hole as detainees at Guantánamo and a host of prison sites across the globe. In July 2009, the Obama administration announced that it reserved the right to imprison at least non-U.S. citizens for indefinite periods, even if they are acquitted by military commissions, the notorious tribunals established by the Bush administration and approved by Congress through the infamous Military Commissions Act. This act, widely referred to as the Torture Act, is considered by many as one of the worst pieces of legislation ever enacted.[3]

In the Summer of 2009,  the Obama administration declined requests from U.N. human rights investigators for private interviews with Guantánamo prisoners and for information on secret CIA prisons around the world.[4] Among the Kafkaesque ideas being considered by the administration is draft legislation that would change the Military Commissions Act and military law to allow prisoners facing the death penalty to plead guilty without a trial, facilitating executions while awaiting further revelations of torture.[5] Existing law requires that those tried in such cases be proven guilty, even in instances where the defendant wishes to plead guilty.

The Senate Armed Services Committee’s “Levin Report,” released in late April 2009, revealed that the Bush administration’s program of torture was motivated in part by the desire to induce false confessions linking Iraq and Al Qaeda, as well as to uncover non-existent WMD programs, in order to justify the invasion and occupation of Iraq.[6] Some of the charts used by U.S. military personnel and the CIA in this quest came from a 1957 Air Force study of Chinese Communist torture techniques, which were used to extract false confessions from tortured U.S. prisoners during the Korean War.[7]

Many hoped this shocking evidence would at last lead to criminal prosecution of high officials for war crimes and other high crimes and misdemeanors. Instead, the U.S. press basically ignored these revelations, which implicated what Luban calls the “torture lawyers of Washington” and other high officials directly in the Bush administration’s illegal war of aggression in Iraq.[8] Such war constitutes the “supreme international crime” for which perpetrators were hanged at Nuremberg.[9]

Lies and related practices of secrecy and deception by the Bush administration in the run up to the Iraq War were crucially aided by coerced confessions. Indeed, torture did work, at least to an extent, by helping extract some false statements that were then used to gain Congressional approval of the U.S. invasion of Iraq.[10] Yet, despite Congressional documentation, the Obama administration continues to shield the executive branch under a cloak of secrecy to prevent further revelations about the widespread use of torture. Instead of protecting national security, torture by U.S. forces arguably constitutes one of the greatest ongoing threats to U.S. and world security in recent memory.[11] Nevertheless, efforts to end U.S. practices of torture and the occupation of Iraq have not yet proved successful.

In February 2009, soon after the Obama administration took office, The New York Times ran a story on page A16 about the incoming CIA director titled, “Panetta Open to Tougher Methods in Some C.I.A. Interrogation.”[12] The administration had already implied that it would continue the practice of extraordinary rendition by failing to prohibit the practice in the January 2009 executive orders.[13]

At the time of this writing, it is clear that the new administration is not complying with the U.N. Convention Against Torture, the Geneva Conventions, or other obligations under international and domestic law, as reports from the Washington Post and other reputable news organizations indicate that torture continues at various US prisons overseas.[14] This is not the time for complacency, but rather for what Dr. Martin Luther King, Jr., called the “fierce urgency of now.”[15]

We must look back to understand how torture, the cancer of democracy, metastasized in our body politic to critically and honestly examine what can be done to ensure, at a minimum, that such practices end immediately and never occur again.

Checking and Balancing

"The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law."

Lieutenant Commander Charles Swift was a lawyer in the U.S. Navy Judge Advocate General Corps assigned to defend Guantánamo prisoner Salim Ahmed Hamdan. He and others successfully sued the President and the Secretary of Defense over the new military tribunals. Swift noted: "The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law."[16]

The first order of business for the progressive movement, Congress, and the Obama administration is to end the wars in Iraq and Afghanistan (which provide the context for torture operations) and end Guantánamo-type imprisonment. Other important initiatives include repealing the Military Commissions Act/Torture Act, restoring habeas corpus for U.S. prisoners everywhere, and ending the abominable practice of torture forever.[17]

In order to ensure that such practices are permanently brought to an end, we must reclaim our constitutional system of government with three co-equal branches. A step forward in this regard would be to appoint a Special Prosecutor with subpoena power to investigate and prosecute officials and their lawyers for willful violations of the U.S. Constitution and international law. In so doing, we could become a beacon of light and source of hope, carrying through on a promissory note to torture survivors everywhere, that we shall stand with you and beside you, to change the world, to make it safe once again for you and your children. This will require hard work and arduous effort, and the willingness to be honest about who we are, who we want to be, and what we have become. Let us begin.

This article is an excerpt from Tom Reifer's contribution to "United States and Torture: Interrogation, Incarceration, and Abuse" (ed. by Marjorie Cohn); published January 2011 by New York University Press >>


Thanks to Noam Chomsky, Marjorie Cohn, Tom Dobrzeniecki, Daniel Ellsberg, David Luban, Christina Shaheen and Jordan Paust for assistance. I of course take full responsibility for the content herein. See also Thomas Ehrlich Reifer, “Lawyers, Torture & Aggressive War,” in The Torturer in the Mirror, New York: Seven Stories Press, 2010.  


[1]. See Barack Obama, Executive Orders, Jan. 22, 2009, (last visited Aug. 23, 2009).

[2]. See David Luban, “Liberalism, Torture, and the Ticking Time Bomb,” in The Torture Debate in America, Karen J. Greenberg, ed. (New York: Cambridge Univ. Press, 2007), 36.

[3]. U.S. Congress, Military Commissions Act of 2006, Pub. L. no. 109-366, 120 Stat. 2600 (Oct. 17, 2006). For details of the campaign to repeal the act, see, e.g.,
(last visited Aug. 21, 2009).

[4]. See Colum Lynch, “U.S. Rebuffs U.N. Requests for Guantánamo Visits, Data on CIA Prisons,” Washington Post, July 23, 2009 (last visited Aug. 23, 2009).

[5]. See William Glaberson, “U.S. May Permit 9/11 Guilty Pleas in Capital Cases,” New York Times, June 5, 2009, (last visited Aug. 30, 2009).

[6]. See U.S. Senate, “Levin Report”

[7]. See Scott Shane, “China Inspired Interrogations at Guantánamo” New York Times, July 2, 2008, A01, 14.

[8]. See Luban, “Liberalism,” in The Torture Debate, 52

[9]. See Marjorie Cohn, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law (Sausalito, CA: PoliPointPress, 2007), 9-28. For links to several articles about the historical tribunal, see “The Nuremburg Trial,” Times Online, (last visited Aug. 23, 2009).

[10]. See Michael Isikoff & David Corn, Hubris (New York:  Crown Books, 2007).

[11]. See, for example, Laura K. Donohue, The Costs of Counterterrorism: Power, Politics, & Liberty (New York: Cambridge University Press, 2008). See also Noam Chomsky, “The Torture Memos,” May 24, 2009,
(last visited Aug. 21, 2009).

[12]. Mark Mazzetti, “Panetta Open to Tougher Methods in Some C.I.A. Interrogation,” New York Times, Feb. 5, 2009, (last visited Aug. 21, 2009).

[13]. See Barack Obama, Executive Order: Ensuring Lawful Interrogations, Jan. 22, 2009, (last visited Aug. 21, 2009).

17. Washington Post, Joshua Partlow and Julie Tate, “2 Afghans Allege Abuse at U.S. Site,” November 28, 2009

[xv]. Martin Luther King, Jr., “I Have a Dream” (speech, Lincoln Memorial, Washington, D.C., Aug. 28, 1963), (last visited Aug. 23, 2009).

[xvi]. See Marie Brenner, "Taking on Guantánamo," Vanity Fair, Mar. 2007, 328-341,ánamo200703?printable=true&currentPage=all. (last visited Aug. 23, 2009). See also Jonathan Mahler, The Challenge (New York: Farrar, Straus, & Giroux, 2009).

[xvii]. See the brilliant and fundamental work of Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence-From Domestic Abuse to Political Terror (New York: Basic Books, 1997); "Symposium: War, Terrorism, & Torture: Limits on Presidential Power in the 21st Century,"Indiana Law Journal 81, no. 4 (2006). See also Pat Barker, Regeneration (New York: Penguin, 1993), about the life and treatment of the decorated British officer Seigfried Sassoon a war hero turned anti-war activist in World War I.