Will he or won't he allow prosecution of Bush
administration officials for acts of torture, and what
will be the cost for him in the future if he does?
(AP Photo/Gerald Herbert)
The question of the hour -- well, one of the questions, anyway -- is whether President Barack Obama will permit or even encourage the Department of Justice to prosecute torturers and the Bush administration officials who enabled them. Obama is playing Hamlet, with "no, I won't" moments alternating with hints of "yes, I will." As a result, he's managed to draw fire from both civil libertarians and hard-line hawks. But the truth of the matter is that the current president and his advisors are probably worried that they, themselves, may some day end up as defendants if they hold their predecessors accountable for their crimes.
Let's be clear -- the Bush administration presided over some unspeakable acts. The Red Cross and the Center for the Study of Human Rights in the Americas are among the organizations that documented deliberate and systematic abuse of detainees at Guantanamo and elsewhere. Prisoners have been subject to suffocation by water, prolonged standing with arms chained above their heads, beatings, confinement in a box, sleep deprivation and other tactics that involve both physical and psychological abuse.
That mistreatment was approved from above, we know, because the Obama administration has released Bush-era memos issued by the Office of Legal Counsel authorizing and justifying such tactics. The memos written by Jay Bybee, Steven Bradbury and John Yoo include detailed descriptions and analyses of the techniques used, including waterboarding (simulated drowning), so there's no question but that the officials knew what was involved in the techniques they were giving their imprimatur.
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The three Bush administration officials facing the most scrutiny over memos justifying
the use of torture. (AP Photo/file)
Despite the Bush-era memos, the techniques used were disgusting and, it appears, illegal. So why shouldn't the torturers and their enablers be prosecuted?
Well ... they should be prosecuted. Maybe they will be, if public pressure is strong enough. But running through the minds of Obama administration officials right about now are fevered images of hearings and trials four or eight years in the future, holding them accountable for their own crimes.
Crimes?
Look, the fact is that the people we insist on electing to office have a long history of stretching the law, at best, and almost always disregarding constitutional and legal restrictions. Whether Democrat or Republican, their actions are often found out, but unless especially egregious, they're usually ignored by successors who don't want to be held accountable for their own actions.
Consider it an unspoken truce.
One of the few exceptions was the Watergate scandal, in which President Nixon broke the unofficial rules by directly targeting the leadership of the opposition party.
Some politicians are explicit in their contempt for legal niceties. President George W. Bush allegedly (although there are doubts about the quote) referred to the Constitution as "just a g-ddamned piece of paper!" Whether or not he actually said it, the sentiment accords well with his administration's conduct.
But you don't have to be blunt to evade constitutional limitations. Why reject a document when you can simply interpret it, like a Rorschach test, to mean whatever you want to see in it? Strictly speaking, that's what Bybee, Bradbury and Yoo did with their interesting interpretations of legal restrictions on the use of torture that stretched the law to permit acts a plain reading would seem to forbid.
That's the tack taken by most politicians, and the current president seems cut from this cloth. In a now-famous 2001 radio interview on Chicago's WBEZ FM, he talked about reinterpreting the Constitution to permit a rather radical economic agenda, including redistribution of wealth.
Either way, you're talking about a willingness to do whatever you want, no matter what the Constitution or the law allows.
Transgressions of past administrations have included domestic spying, illegal wars and assassinations. Sometimes, presidents turn the power of the state against their political opponents -- according to investigative journalist David Burnham, "Franklin Delano Roosevelt regularly used the IRS as a political hit squad." Kennedy and Nixon also used tax collectors for political purposes.
Eisenhower presided over U.S.involvement in a coup that overthrew the elected government of Iran and restored the shah to power.
Kennedy, of course, was up to his eyeballs in the Diem coup in Vietnam and the Bay of Pigs fiasco.
LBJ unleashed the FBI to track domestic dissidents, and even listened to tapes of Martin Luther King having sex.
Nixon ... well ... do I need to add the details?
Reagan, of course, oversaw the Iran-Contra affair, an illegal swap of arms for hostages.
That barely scratches the surface, and the list goes on.
Obama hasn't been in office long -- not yet 100 days -- but he's already making it clear that he's anything but a break with presidential tradition. He's cynically dropped the term "enemy combatants" from use at Guantanamo while maintaining the reality of people held without charges. His Justice Department has gone even farther than the Bush DOJ in arguing that some government abuses are so secret that people should have no access to the information necessary to seek redress.
It's early yet. The Obama administration may turn out to be much better than the Bush administration, or it may (save us from this fate) be worse. It will, however, engage in its own abuses.
And Barack Obama and company are understandably hesitant to set a precedent that may have them facing charges when a new administration comes to town after the political wheel turns once again. Obama's inclination, no doubt, is to let bygones be bygones, with the understanding that his own successor will adopt the same attitude.
Earlier this month, Salon's Glenn Greenwald wrote:
[C]andidate Obama unambiguously vowed to his supporters that he would work to ensure "full accountability" for "past offenses" in surveillance lawbreaking. President Obama, however, has now become the prime impediment to precisely that accountability, repeatedly engaging in extraordinary legal maneuvers to ensure that "past offenses" -- both in the surveillance and torture/rendition realm -- remain secret and forever immunized from judicial review.
Obama's conduct has been no accident. It's a continuation of the presidential tradition of omerta. If he does eventually permit prosecutions of the Bush administration officials who authorized torture to go forward, it will be because public pressure left him no choice.
That would be the best of all worlds. Not only would it ensure consequences for past misdeeds, but it might create a situation in which the current occupant of the White House is unwilling to wander far from the straight and narrow, out of fear that his own misconduct will, finally, invite future scrutiny and punishment.
email J.D.: civilliberties (at) tuccille.com
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Comments
Redistribution of wealth is a radical idea? I was under the impression that taxing the public to pay for services had been going on for decades.
Yes, use of the coercive power of the state to transfer money from some people to others as an end in itself, instead of just to pay for certain services, is a radical and contentious idea.
Really? In this entire column, that's the point that caught your attention?
This is all just so third world like.
What will this do to those still tasked to make very complicated decisions in the future? Does this not put a large chill in decision making when you know the next administration may charge you for the crime of making a decision that reasonable minds can differ on? This is dangerous to our country.
Sorry J.D., I usually am in agreement with you. On this issue however, I would say that much of the torture, is not actually torture. Though, to be sure, some of it really is torture and really doesn't belong in a civil society. But, here is where I believe we part ways. These people were not uniformed members of another nation's military. These people were not and are not signatories to any treaty proscribing such treatment. These people do and have used much more demeaning and deadly tortures to advance their cause, and mostly they have done it to innocents. I feel no duty to them. NONE. However, I do feel a responsibility to ourselves that we not degrade ourselves by engaging in actual real torture,(sleep deprivation and such doesn't count, surely intelligent people can see that), so that leaves us one other option.
I am in favor of that option. We can't keep them, we can't get any country to accept them, not even their own, we dare not turn them loose on the society they have already tried to harm. They have committed acts of war, but we can't treat them as enemy combatants, nor can we treat them as common criminals. So, I favor the one reasonable option we have. Kill them at capture.
Harsh? NO! Deserved, and everybody goes away happy. They get to be martyrs with 72 virgins (though why they should view amateurs with relish is beyond me), our touchy-feely "rights" advocates here at home (you know those people who will defend the terrorists and suicide/murder/bombers, but want my family to be unarmed by law to be prey to such people) have no reason to be upset about the incarceration of these people, the military doesn't need to house, feed, and coddly them, the civil administration doesn't have a problem with buying Korans or prayer rugs or preparing Islamically approved diets, nor do they have any protests of treatment of people who have tried to kill us because they are all buried. So everyone wins.
Oh, except the next American city that experiences a 9/11 type atrocity because the opportunity to learn of it prior was lost. But what the Hell? What are a few thousand American lives if the rest of us can feel all smug in our alleged moral superiority?
Here are six politicians who were briefed numerous times on torture, who directly approved torture and who funded torture:
House Speaker Nancy Pelosi
Senator Richard Shelby
Senator Pat Roberts
Senator John Rockefeller
Representative Peter Hoekstra
Representative Jane Hartman
If prosecution is to be pursued, those people and several dozen more must be prosecuted as well.
Obama has exempted select individuals from prosecution yet seeks to prosecute others. This is a violation of our Constitution, this is a violation of equal protection under law.
Obama has committed an act of treason.
What of our soldiers who sit in prison because of the Abu Ghraib prison incidents? They sit in prison, lives ruined, while Obama excuses CIA spooks who engaged in far worse crimes.
Obama's behavior is criminal and treasonous.
Okpulot Taha
Choctaw Nation
That's true. Pelosi and company were fully aware of what was going on and either remained silent or were complicit. They should be held accountable, too.
This is not about justice. It is about power and intimidation. Pelosi and company will never face the slightest sign of displeasure, let alone prosecution.
There is the key to what this is about. Justice isn't it.
I was listening to talk radio today and it looks like they're trying to make a right vs. left issue out of this. I can't believe anyone thinks that torturing children is okay. They put insects on people's children and raped them in front of their parents. At least one of the people held at Guantanamo is a young boy. Holding people indefinitely, without a trial and doing the terrible things to them that they freely admit that they have done is inexcusable. It is pure evil. There is no defense for it. I couldn't believe what I was hearing on the radio, first Hannity, then another guy defending this kind of think and putting their own spin on it. Clearly, they are going to argue with each other - pubs and dems -and make a public show, but they have no intentions of stopping this behavior. I think many of these people (high level political figures) are pedophiles, anyway.
J.D. Tuccille agrees, "That's true. Pelosi and company were fully aware of what was going on...."
My view is Capitol Hill and the White House are working at politicizing this torture issue. Democrats and Republicans are pointing fingers at each other, as is typical. This does not lend well to truth.
If our civil liberties are to be protected, we must maintain equal treatment under law, both in guilt and in innocence. When our government states, in effect, "These people are immune to this law and those people are not immune this law" our civil liberties are in jeopardy.
Selective prosecution of our laws always leads to mistreatment of citizens. Justice is to be blind, always.
Obama and Capitol Hill are setting yet another precedent of political preference when enforcing our laws. Doing so is a violation of our Constitutional rights and our civil rights whether we are directly effected or not.
For this reason, not abiding by our Constitution, I allege Obama has committed an act of treason; he is subverting our government and our laws.
My opinion is Obama has really screwed the pooch on this torture issue; his is a no-win situation.
He should have kept his big mouth shut.
Okpulot Taha
Choctaw Nation
I don't see Queen Nancy Pelosi's picture in that group who approved of these techniques!
Nancy Pelosi and others have known about torture since 2002 year. She and others enjoyed intimate knowledge of torture including tours of "torture facilities" maintained by our CIA.
Now Pelosi is pulling a Sgt. Schultz; "I know nothing!"
Pelosi is calling for a "Truth Commission" which will be no more truthful than Bernie Madoff but just as corrupt as Madoff.
Obama and Holder are to refusing to release CIA memos which are alleged to exemplify torture gleaned valuable information and helped to prevent Islamic terrorist attacks.
Obama and Holder are in possession of possible exculpatory evidence and are refusing to release this evidence. This is a direct affront to our system of justice and a violation of our laws.
We all know torture was effected. None debate this. Nonetheless Obama is to release more photographs of terrorists being tortured.
This release of torture photographs is designed to inflame Americans, to inflame peoples of our world. Obama intends to widen his power base by pitting Americans against each other, by pitting peoples of our world against America.
Obama is providing Islamic terrorists more political ammunition to use against America. Obama is aiding and abetting Islamic terrorism.
Obama is working at proving Democrats are good and Republicans are bad. Obama is deceitfully working at coalescing and expanding his power base through this torture issue and other issues.
Obama is playing Americans for being fools.
I never liked George Bush, often wrote Bush is an illiterate blithering idiot. Bush did work at curtailing our civil liberties. Bush never caused me to be fearful but he did make me mad.
However, what Bush did pales in comparison to what Obama is doing. Obama is working at establishing for himself iron fist control over America and working at taking away most of our civil liberties.
Obama does not make as mad as much as he makes me fearful. Obama is defeating and destroying America, from within.
Okpulot Taha
Choctaw Nation
Their will never be any prosecution of Bush Administration officials because the road will always lead to Dick Chaney. Dicky is untouchable and to prove that, why was he never investigated for giving the order to have NORAD stand down on 9/11? Those planes should have been shot out of the air prior to striking the twin towers and every one knows it.
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