We Don't Want to Criminalize Policy Differences: How the Obama Administration’s Approach to Torture Evidence Might Amount to Obstruction of Justice

• In Event: Responding to a Legacy of Torture: Reconciliation, Reform and Retribution in Obama's First Year

Abstract

On January 14, 2009, the Washington Post published a front-page interview by Bob Woodward in which judge Susan J. Crawford, convening authority of the military commissions at Guantanamo Bay, explicitly stated that the treatment of alleged September 11th hijacker Mohammed al-Qahtani at GITMO was torture. “We tortured al-Qahtani,” said Crawford. “His treatment met the legal definition of torture.” Crawford’s credibility and the bluntness of her momentous conclusions surely complicated matters for Eric Holder, Barack Obama’s nominee for Attorney General. Two days after the interview appeared in the Post, Holder faced questions in his Senate confirmation hearing about the mounting evidence that members of George W. Bush’s administration had authorized the use of torture in the so-called war on terror. When asked if he intended to undertake a criminal investigation of individuals who might be culpable in the matter, Holder told the Senate Judiciary Committee: “I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over.” Instead of promising to enact justice swiftly, Holder suggested that he would help lead a national discussion on how to balance national security needs with “our values.” This paper examines how Holder framed the Obama administration’s strategy of rhetorical transcendence, focusing specifically on the tension between that approach and obligations to investigate and prosecute instances of torture as set forth by the 1984 Convention Against Torture. First, I explore the hypothesis that elements of Holder’s testimony can be interpreted as “proto-reconciliatory” rhetoric akin to that used by truth and reconciliation commissions. I then consider how such a rhetorical trajectory may be at odds with legal commitments the United States has made to investigate and potentially prosecute instances of torture committed in its jurisdiction. Finally, I analyze how this point of tension translates into potential legal peril for Obama administration officials, as well as discursive space for citizens committed to pressing for accountability as a key feature of the nation's apparently redoubled commitment to the rule of law.

Author

• David Seitz, Univ of Pittsburgh