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.
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.