President Obama should know better. I am certain that he does know better.
Did he forget that he was a professor of Constitutional Law? Did he forget the proper relationship of the Department of Justice to the Oval Office? The President has his own legal counsel just down the hallway in the West Wing. The DoJ is not the President’s law firm. It is the people’s.
The decision as to whether to investigate and prosecute malefactors is a decision to be left to the Attorney General, not the President. As a former politician I can appreciate that the question of whether to prosecute those involved in the torture policies of the Bush administration is a political question. It is also a question of law.
Regardless of any political considerations, the law and the Constitution take primacy. That is beyond debate.
Pursuing criminal charges against Bush and his underlings only complicates Obama’s relationships with those on the other side of the aisle. Obama rightly sees the need to move beyond partisanship.
Whether there is any interest on the part of the Republican members of Congress he feels the need to make the attempt. Prosecution of Bush officials likely forecloses any possible small ray of hope on that score.
Let’s take a quick look at the Constitution. It is the supreme law of the land. It takes precedence over other law. There is a little matter that the general public does not understand but Constitutional scholars certainly should. Any treaty, signed by a president and confirmed by two-thirds of the Senate, becomes not just law. It becomes equal in status and force to the Constitution itself. It also becomes, in effect, the supreme law of the land.
Our country signed multinational treaties that promise we will neither practice torture nor condone it. We are obligated to pursue prosecution of anyone under our jurisdiction who violates the terms of those treaties. It doesn’t get much simpler than that.
The DoJ really has no choice but to pursue inquiries and, potentially, prosecution of anyone involved in torture. The President has no say-so in the matter. I can appreciate that the Oval Office may want to express an opinion on the subject but he should refrain, unless it is to show support for upholding the laws and treaties. Otherwise, it would not be too much of a stretch to consider him complicit as an accomplice, after the fact.
For the Attorney General to ignore those criminal acts would be unarguable grounds for impeachment. Whether an investigation results in prosecution depends on what turns up in that investigation but to give these people a pass would, in and of itself, undeniably qualify as a high crime and misdemeanor, as specified in the Constitution.
Did we conduct the trials at Nürnberg because we believed that there actually were such things as war crimes or because winners can exact revenge? Was that entire exercise merely an elaborate show of hypocrisy? Or, do we really see ourselves as moral actors on the world stage?
The salient point at those trials was our refusal to accept the claim that one was only following orders as exculpatory. Yet there seems to be general agreement at this time, even from almost all critics, that we should not prosecute the CIA and military personnel who actually carried out the torture. In other words, give them a pass for following orders. Absolutely not.
At Abu Ghraib, we prosecuted only the little fish. That is unconscionable. But prosecuting only the higher-ups is almost equally unacceptable. The expectation that those who would follow the orders of higher-ups might second guess their orders is a necessary impediment that those issuing orders should have to factor into their decisions.
We already find people quibbling over whether one technique or another constitutes torture. Various laws and treaties provide both general and specific descriptions and definitions. Such discussions are not serious. They are attempts at diversion.
Cheney, Peggy Noonan, Andrea Mitchel, Chuck Todd and a host of other reporters and columnists are portraying some of this as political in nature. If I pull out your fingernails, will you slough it off as me making a legitimate political statement?
When discussing one prisoner who was waterboarded 183 times in one month as having been the victim of torture, it is called a crime. Actually, it is 183 crimes. By the by, his treatment was not limited to waterboarding.
Are we supposed to refrain from torture for the benefit of the object of that torture? No. We are supposed to refuse to practice torture for our own benefits. Such restraint allows us to see ourselves as better than they are. It allows us to remain true to the image we strive to offer the world. It allows us to claim leadership in various moral and legal areas.
Military leaders overwhelmingly prefer that we not torture. It will always come back to haunt us by increasing the likelihood of our service personnel being tortured. If we don’t torture and our enemy does, it brings world opinion to our side. Never discount having international support.
If the torturers and those who created that policy are permitted to escape justice, we have set a precedent for all future political leadership to engage in not just torture but a broad range of other unlawful acts. We will be giving sanction to all low level personnel to sate their blood lust.
There would appear to these future potential criminals no bar to violation of the law, treaties and the Constitution. Respect for our institutions is already far too low, perhaps justifiably. Whatever level remains would erode further still. Recovery from such a state is always difficult. Permission slips would make recovery impossible.
Perhaps the most important practical argument is that torture doesn’t work. John McCain and a host of others in a position to know realize that the torturers get the information they want, not the truth. Basing policy, plans and actions on information derived from torture will do harm to those relying on it, not the victim or his cause.
If we fail to prosecute those responsible for our policy of torture, we become the ultimate victims.
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