The Obama administration should prosecute torture officials (but probably won't)

April 23, 12:43 PMCivil Liberties ExaminerJ.D. Tuccille

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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.

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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