The case for torture prosecutions

PHOTO: Dick Cheney

On Friday when Obama authorized the release of the Bush era Justice Department memos that provided a pseudo-lega cover for torture, he said investigations (and, by extension prosecutions) for those responsible would not happen, despite the wishes of 61% of Americans:

… In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution…

… This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future…

White House spokesman Robert Gibbs has gone even further to say that Obama will turn a blind eye toward the architects of the torture program, not just the CIA minions who “were just following orders.”

Not your decision Mr. Obama

I sympathize with the President’s desire to avoid the political consequences of bringing high level Bush officials, perhaps even Bush and Cheney themselves, in front of a judge to answer for charges of war crimes. However, the political consequences shouldn’t get in the way of justice and our legal obligation under several treaties to investigate and prosecute those who would torture, regardless of exigent circumstances.

It’s not actually supposed to be the President’s decision to make. As I mentioned, we are compelled by treaty to investigate and prosecute cases of torture (and there is certainly enough evidence to make the claims credible). Likewise the Attorney General is, in theory, expected to make decisions about who to prosecute separate from the political desires of the President.

The fallout of doing nothing

Not prosecuting Bush officials and CIA operatives for these unmistakable cases of torture will have damaging consequences. It will be the most brazen example yet that our government officials are more like royalty than citizens; the law does not apply to them even in the most monstrous of circumstances. It’s inconceivable that ordinary Americans on trial or in prison will receive similar clemency from the President in the name of looking to the future instead of “spending our time and energy laying blame for the past.”

It’s not as if American leaders have always been above the law. Nixon was investigated for the various crimes surrounding the Watergate burglary. Clinton was called to account for perjury and obstruction of justice. While certainly serious, neither case rose to the level of seriousness of war crimes.

Torture will survive as a debatable tactic. Prominent Republicans and conservatives still argue that what we did wasn’t torture (despite waterboarding’s long history as a designated torture technique), or that even if it was, we should accept it anyways. Dick Cheney himself is saying that torture worked, and that he can prove it. It was only four months ago when these people held the reigns of the government, and it’s not inconceivable that they will hold them again (especially if the economy is still in the crapper come 2012). What is to stop them from reconstituting their torture programs, knowing there will be no consequences? We can’t count on having benevolent leaders forever, that’s why we have laws and associated criminal penalties to restrain their actions. A law without a punishment for compliance is nothing more than a suggestion.

Without punishment for the CIA interrogators and doctors who carried out the torture, the CIA will continue to act with impunity, having been given explicit authorization to break the law. That “just following orders” is not a valid defense for committing war crimes was established in the wake of WWII when Nazis and collaborators were put on trial at Nuremberg. Everyone along the the chain of command, from the Vice President down to the CIA interrogator, is supposed to refuse orders to commit crimes. Punishment gives future CIA interrogators the right incentives to oppose unlawful orders.

In the absence of accountability, our moral standing in the world will remain severely damaged. We will be inviting similar treatment for American prisoners abroad. An American journalist is currently being held by the Iranians in prison for espionage. This is how her prison is described:

Evin Prison, compared to a “torture chamber” by its former residents, and Amnesty International has noted a “risk of torture or other ill-treatment” for those held there.

If she is in fact tortured, our complaints will be laughable given our current attitudes toward the treatment of our own prisoners.

Moving forward

Unfortunately, having already signalled their opposition to holding anyone accountable for torture, Obama and his Attorney General, Eric Holder, have made it clear that they can not be relied upon to conduct an impartial investigation and possible prosecution. Congressional action would be similarly biased by political cowards and torture collaborators. The answer is to appoint a special prosecutor free of conflicts of interest. Do the right thing Mr. President.

Flickr photo by the World Economic Forum

34 Comments

  1. Ian

    If a crime was committed, should the perpetrator be punished? Yes. That said, you know that Obama is right when he says: “But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.” This is truth, because it will not change the past, but it will further divide us in the present and future.

    The biggest problem I have with all of this posturing you’re doing is this statement: “In the absence of accountability, our moral standing in the world will remain severely damaged.” This is just insane to me. War itself is state sponsored murder. I don’t care what anyone says, there’s nothing magically different about killing a man when you are at war. The only difference is no one will come to toss you in jail for doing it. That’s a legal difference, not a moral one. How many civilians have died in our wars? We dropped a nuclear weapon on a city full of civilians, and you are worried about the torture of an unlucky few? Talk about ignoring the million-ton gorilla in the room. I’m not defending torture, but don’t try and act like torture is THE stain on our nation’s morality. We can’t choose to hold ourselves accountable for this and then act righteous. It would be laughably hollow.

    Let it go man, because if you honestly think THIS is what we have to be worried about, that THIS is where we draw the line in the sand between right and wrong, you are severely misguided. The problem with this nation’s morality goes way deeper than this. Getting your pound of flesh won’t change a thing.

  2. Ian

    Also, how do you get that 61% of Americans want criminal prosecution from what you posted (that is what you imply)? That’s not evident from the link you put there. Those who want criminal investigation is 38% from that Gallup poll. 24% just wanted investigation by an independent panel. 34% wanted neither. So in reality, the number of people who want criminal prosecution is about equal to the number who don’t want it investigated. You’re skewing the numbers quite a bit.

  3. Chris

    Ian,
    My apologies, I wasn’t trying to be misleading (I struggled with the wording of that paragraph before I published). I cleaned up the first paragraph to be more precise. 61% of Americans favor investigations of one form or another, not necessarily prosecutions. In any case, 38% is a significant portion of the population that doesn’t want to pretend torture wasn’t a policy of our national government.

    As for your first comment, I’m less concerned with changing the past than laying the groundwork for a torture free future. But even so, would you grant that murder trials should be abolished because what’s done is done?

    Of course not. Pursuing criminal charges is about two things, one is justice for the victims and society. Victims want some kind of retribution and society doesn’t want it known that we tolerate criminality. Two is deterrence. If Dick Cheney ends up getting the death penalty for ordering the torture of a man who died during the torture, how many future heads of state will be willing to risk their own necks to establish a torture program?

    The line in the sand should be drawn somewhere, and this seems as good a place as any. We have very clear laws about torture and they should be followed. By contrast the rules governing battlefield warfare are quite murky.

  4. Ian

    I think we are arguing about what should be and what will be and in some way, what is, if that makes sense. In a “fair” world, yes we would punish those who commit torture. However, in a “fair” world, there would be no need to torture, and our leaders wouldn’t be asking someone to do it. I’m not saying murder trials should be abolished. I think that takes my argument to the extreme in the wrong direction. What is the important function of a murder trial anyway? Justice? Please. The important purpose is to isolate the murderer from society so they can’t do it again.

    “By contrast the rules governing battlefield warfare are quite murky.”

    I’m saying if you can excuse what happens in warfare, you better be able to excuse this, because what happens in war is far worse from a moral standpoint. That’s what we are discussing here, morality and not legality, yes? If you want to talk legality, you have a whole other problem. Legality can come down to stupidity and hand waving. Take the Clinton business where he questions what the definition of “is” is. Take the OJ trial. Take my story of a contesting a speeding ticket I wrote about here. Take our discussions of marijuana legalization here. You seem to want there to be this notion of “justice”, but nothing our legal system dishes out is just or fair. Its all about who sits on your jury, who your judge is, who your lawyer is, etc. There is no objective justice in this system. On top of that, think about how absurd it is to talk about putting rules in place for war. Like we were mad that the Iraqi’s and those in Afghanistan fighting us weren’t wearing uniforms, which violates the Geneva Convention. So basically, we were mad because our enemy isn’t wearing big targets and making it easy for us. Boohoo, they don’t play fair. Rules for something as vile as war, where we violate our every day laws, are completely absurd in principle.

  5. i was going to point out that nixon got a “full, free, and absolute” pardon from ford, and that the only reason clinton didn’t resign/get impeached is because his approval ratings actually went up during the lewkinsky scandal[1], but ian pretty much owned this by pointing out that torture is the least of our country’s moral concerns. it really does us no good to parade our former leaders into the courtroom and have highly publicized, extremely embarrassing trials. releasing the memos and uncovering facts truth and reconciliation style is way more productive, and i think that’s the route obama is and should be going.

    1. they were 69%, the all-time high during his presidency. clinton knew the threat of impeachment wasn’t real–it would be political suicide for congress to impeach the president for “other high crimes and misdemeanors” when he had those numbers in his pocket.

  6. Chris

    Ian,

    However, in a “fair” world, there would be no need to torture, and our leaders wouldn’t be asking someone to do it. I’m not saying murder trials should be abolished. I think that takes my argument to the extreme in the wrong direction. What is the important function of a murder trial anyway? Justice? Please. The important purpose is to isolate the murderer from society so they can’t do it again.

    It’s not a fair world, but we use the courts to make the world more fair. That’s how it goes. Otherwise we might as well throw our hands up in the air and accept anarchy.

    I know letting murderers go is the extreme version of argument, but it’s the logical extension. Now you’ve added that if it can be established that the perpetrator of a crime is unlikely to do it again, we drop their prison sentences or prosecutions.

    Also, while it’s true that prison is in part isolation, it’s also meant to be a deterrent for other would-be murderers. Prison and other penalties are the bedrock of our justice system. Like I said, without penalties for breaking the law, the law becomes simply a suggestion.

    I’m saying if you can excuse what happens in warfare, you better be able to excuse this, because what happens in war is far worse from a moral standpoint.

    I’m not “excusing” what happens in warfare. For instance I think someone should pay for taking us to war in Iraq under false circumstances. I believe Israel should pay some price for targeting civilians in their recent campaigns in Gaza and Lebanon. But that is wholly separate issue from what we do with our prisoners, many of whom were not captured on any battlefield, but were taken from their homes in various countries, not exclusively Iraq and Afghanistan. What was done to these people (some of them terrorists, some of them falsely accused) was authorized and choreographed at the highest levels of government. It wasn’t done in the heat of battle, it wasn’t limited to the immediate aftermath of 9/11. It was done for years, under the supervision of doctors. We’ve hanged Nazis and Japanese for less in the past.

  7. Chris

    David,
    I find odd the idea that the systematic execution of war crimes at the highest levels of government is the least of our country’s moral failings.

    Certainly we can spare a lawyer or two to find out what happened.

  8. Ian

    You’ve talked yourself in a corner here: “For instance I think someone should pay for taking us to war in Iraq under false circumstances.” and you said this in the original post: “Everyone along the the chain of command, from the Vice President down to the CIA interrogator, is supposed to refuse orders to commit crimes.” So would you have us put every soldier on trial who took part in the Iraq War if that war was deemed illegal? Who is to blame for the civilian deaths in Iraq? Bush didn’t pull a trigger and he didn’t drop a bomb. Neither did his generals. Why didn’t the soldiers refuse their orders?

    How many were tortured? How many civilians were killed in the Iraq War? I think there is a large disparity in those numbers. If the Iraq War was entered on false pretenses, a whole nation overthrown, don’t you think THIS is a bigger problem than torture?

    It will do us no good to put these people on trial. Murders still happen even though people get put into jail for it. It is for the protection of society that we put them in jail. Those we deem unlikely to commit again (the only way is if it were accidental) DO receive reduced punishments, and that is done by charging them with manslaughter.

    I’ve said quite a few times here on this site that the best thing Obama can do is make sure it never happens again.

  9. Chris

    Many reasonable people, including – regretfully – myself at the time, thought going to war in Iraq was necessary because of weapons of mass destruction. Fighting in a war against a brutal dictator, to remove weapons would hardly seem illogical or even illegal to the average soldier. But that was made possible by a concerted propaganda effort. That’s why the people who pushed the lies should be punished, not every single soldier who went to war (excluding the ones who may have committed their very own atrocities).

    On the flip side, you have CIA agents being ordered to use pain, mental and physical, to break another human being. Sure, you’ve been told they are terrorist scum, but at what point does it seem legal to strip a man naked, keep him awake for 2 weeks, drown him every other hour, and slam him into a wall?

    It will do us no good to put these people on trial. Murders still happen even though people get put into jail for it.

    Recognizing that we can’t stop all instances of crime does not mean that we give up the pursuit of justice.

    I’ve said quite a few times here on this site that the best thing Obama can do is make sure it never happens again.

    Like I said, there isn’t a consensus about torture. You’ve got a 1/3rd of the country, led by Dick Cheney, willing to argue that either what we did wasn’t torture, or that if it was it was great and necessary.

  10. Ian

    “Sure, you’ve been told they are terrorist scum, but at what point does it seem legal to strip a man naked, keep him awake for 2 weeks, drown him every other hour, and slam him into a wall?”

    At what point is it legal to drop a bomb on his house or shoot him?

  11. Chris

    Well, you didn’t tell me you were a strict pacifist.

  12. Ian

    No, I’m strictly against moral relativism when it comes to this kind of stuff. I think its pure hypocrisy to decry torture but turn a blind eye to war. Torture is way down the list on what we should be getting the Bush administration for.

  13. Chris

    Well, what’s higher on the list? Which laws did they break?

  14. Ian

    I’m sure there is a law about starting an illegal war somewhere. Or warrantless wiretapping. Or politicizing the justice department.

  15. Ian

    But anyways, I thought we were talking “morality” and not “legality”. If we are going on “morality” I would put every death that occurred as a result of the Iraq War at the top of that list.

  16. Chris

    Well, as much as I hate to say it, sometimes you have to put Al Capone in jail for tax fraud.

  17. AlanSmithee

    Do the right thing Mr. President.

    Or what? What do you think your going to do about it? Write a letter? Not send in your monthly check to the DNC or PDA or what-the-fuck-ever? Not vote for God-Emperor Obama in 2012?

    Bullshit.

    Look, maybe you should write about movies or sports or something. Politics is for vertebrates.

  18. Chris

    alansmithee,
    I will certainly consider other candidates on the merits. Hell, I’d do that no matter what Obama decided to do about torture. I’m not a reflexive Democractic supporter. Not by a long shot.

  19. Alansmithee

    Oh horseshit. You’re waiting for someone else to do all the work while you sit on your lesser evil shitpile of an imperial party and turn up your nose at anyone fighting for real change. You think someone is going to present you with a real progressive political party all tied up with a fucking ribbon for you to coo and baa over? Or is that just your fucking pathetic excuse for voting these corporate empty suits in over and over again?

    No, don’t bother with the cheapshit yellow-ass rationalizations. I’ve read them all on dkos & digby already.

  20. Andrew

    Leave it to Chris to sit on his ass while the real crusaders are out there, leaving sanctimonious comments on various left-leaning blogs. Fight the Power!

  21. Ian

    Well I’m convinced. Wait, what was Alansmithee actually arguing for again?

  22. Biff

    Really! How common! Activism is just soooooo pointless. It’s a darn good thing there are right thinking democrats like Ian and Andrew and myself to put these dirty hippies in their place. Haha!

  23. Chris

    I’ve devoted time and money to defending Ralph Nader, but at some point you have to accept that the 1-3% of support you’ve garnered isn’t enough to win an election.

  24. Ian

    I don’t know what Biff is trying to say, but it sure seems swell. Boy is my face red!

  25. Biff

    That’s right, Alan. Be like Chris and his gang. You have to learn to bow to authority. Accept the crumbs out masters and betters throw from the table. Give in. Join the Democratic Party, Alan, and work for a slightly, ever so faintly better Empire. We have fruit snacks and Wii sports and all the sneering contempt for dirty hippie lefties you could possibly want!

  26. Ian

    I love fruit snacks!

  27. Chris

    Biff,
    I trust you stopped paying taxes long ago to avoid bowing to the authority of the Empire rather than fund its heinous crimes. Because I trust you’ve done this, I greatly admire your ideological purity.

  28. Biff

    Haha! Take that Alan! You think your such a purity pure pure pure pure but your really just a dirty hippie lefty freak! We’re the righteous Democrat Party Members who pay our taxes and help fund President Obama’s Hope for Change we can Believe In! Haha!

  29. Biff

    Pure pure pure purity pure pure pure pure! Haha!

  30. Ian

    Why actually say something intelligent when you can just pretend you are!?

  31. AlanSmithee

    Gosh, I’m ever so sorry for being too “pure pure pure” for torture. I’ll take Ian & Chris’ advice, knuckle under to the spineless do-nothing pwoggie-bloggie Obamabot zeitgeist, immediately join the DP and get in on those yummy fruit snacks.

  32. Ian

    Alan, please let me know how your not-at-all-sheep-like self fights the power. I mean, for someone who claims to be different and above it all, you sure sound like every other guy on IOZ’s blog. Did you even read what I said at all in these posts? I think you guys just like to talk and feel good about yourself. I’m happy to oblige: Thanks for your well thought out contribution to the discussion. You are right, about whatever it is you were saying.

  33. AlanSmithee

    I would, but nobody want a lesser evil sucking do-nothing demotard like you fucking up the works. Why don’t you go discuss it in a well thought out manner with your DP masters and better, demobot.

    Oh, and go “purity pure pure” yourself.

  34. Ian

    That’s what I thought.