President Obama Leaves Open Possibility of Prosecutions for Torture While His Intelligence Director Affirms That the Torture Program Was Successful

225px-official_portrait_of_barack_obama230px-dennis_blair_official_director_of_national_intelligence_portraitPresident Obama reversed earlier statements statements made as late as this weekend from Raum Emmanuel and others that he did not want anyone — low level or high level officials — prosecuted for torture. In a clear break from his past statements, Obama insisted that the matter had to be left to Attorney General Eric Holder. We discussed this latest development on this segment of MSNBC Countdown. In the meantime, the Administration leaked a memo from Intelligence Director Dennis Blair that said that the torture program yielded new information — part of a new emerging argument that torture works that was also recently advanced by former Vice President Dick Cheney.

President Obama’s statement was a bit a curiosity since he insisted that this is a decision that he could not make or pre-determine. Yet, for months, Obama has been stating his policy on such investigations and stating his position on “looking forward” and not acting in “retribution” through such prosecutions. The reversal may show that the White House has been unable to bury the issue and Emmanuel’s statement may have been something of a Hail Mary play to see if the Administration could get away with a no-prosecution policy. It did not work. To make matters worse, Cheney and others are showing that they are not just unrepentant but controlling the message on torture. The new message is “torture works” as former conservative academics who blindly defended the Administration are suddenly coming out against waterboarding and torture.

In a meeting with Jordan’s King Abdullah II at the White House, Obama stated “With respect to those who formulated those legal decisions, I would say that is going to be more a decision for the attorney general within the parameter of various laws, and I don’t want to prejudge that.”

The statement is worrisome. In the last week or so, Administration and former Administration officers have been crafting this question as whether Bush lawyers will be prosecuted for their legal advice. This is a false construct since the obvious targets of a war crimes investigation would be the former president, vice president, the CIA Director, and Attorney General. Past war crimes investigations have focused on those who ordered the crimes, not simply those of facilitated the crimes. The lawyers like Bybee and Yoo and others may face investigation and repercussions, but they are not the primary focus of these allegations. Yet, Obama appeared to take up that new spin in his reference to “those who formulated those legal decisions.”

The concern is that the White House is now going to adopt a narrow construct of the war crimes investigation and then have Holder bar investigation based on the protection of Justice officials in rendering legal advice.

In the meantime, the Obama Administration leaked a memo from Intelligence Director Dennis Blair that seemed designed to support Cheney in his “Torture Works” campaign. Blair writes “High-value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qaeda organization that was attacking this country.”

The very premise of this memo is disturbing. Torture is not a crime because it does not work. We are prohibited from using this means regardless of any excuse or claim of value. Could you imagine a chief of police writing a memo that the beating of a suspect did produce good intelligence on other crimes? It would be viewed as an outrage that a police official would even suggest a justification or value of such abuse.

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32 thoughts on “President Obama Leaves Open Possibility of Prosecutions for Torture While His Intelligence Director Affirms That the Torture Program Was Successful”

  1. Understood you were joking. Your original reply was too good for me to come up with anything, so I neo-conned. LOL

  2. That is NOT what Turner said…

    His words were closer to ‘I’ll bet you money that neither Rumsfeld or Bush ever heard of Common Article 3 ‘.

    He then went on to speculate that none of the lawyers advising were National Security experts, either.

    The point being, that the administration was ignorant on International matters – not a giant leap, come to think of it.
    They didn’t care…

  3. I was making a joke. On the On Point interview in an earlier post, the professor arguing that bushcheney were the “good guys” said they didn’t even know what Common Article 3 was. Your story completely contradicts that stupid assertion!

  4. Jill

    You stumped me. So, I’m going with the classic Cheney answers:
    “So…”, “They volunteered”, and “Cheney, Cheney, you can’t hide, we charge you with genocide.”

  5. whooliebacon,

    That can’t be right! Professor Turner (On Point interview) said no one in the bush administration even understood what Common Article 3 was. 🙂

  6. Chris,

    I rob a bank. In my defense, when my get-away drive changes lanes he uses his turn signal.

  7. Digby article in Hullabaloo: “It metastasized”

    “President George W. Bush made a written determination that Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al Qaeda or Taliban detainees. This act, the committee found, cleared the way for a new interrogation program to be developed in-part based on “Chinese communist” tactics used against Americans during the Korean War, mainly to elicit false confessions for propaganda purposes.”

    If by “torture works” Cheney meant eliciting confessions for propaganda purposes, then he is probably correct. Evil and depraved, but correct.

  8. Jill 1, April 22, 2009 at 10:01 am

    This is a must read from the Washington Post. If Holder refuses to conduct an independent legal investigation he should be impeached.

    Neither he nor Obama has refused – not once!

    Mr. Obama said that C.I.A. officers who were acting on the Justice Department’s legal advice would not be prosecuted, but he left open the possibility that anyone who acted without legal authorization could still face criminal penalties. He did not address whether lawyers who authorized the use of the interrogation techniques should face some kind of penalty.

  9. My point is, in ‘2002’ – NOT the afternoon of 9/11/01!


    Patty C 1, April 22, 2009 at 5:08 am

    From today’s LAT…,0,7807030.story

    “…The report shows that military and intelligence officials started planning harsh techniques as early as February 2002, seven months before the tactics were approved by the Justice Department.

  10. This is a must read from the Washington Post. If Holder refuses to conduct an independent legal investigation he should be impeached.

    Previously secret memos and interviews show CIA and Pentagon officials exploring ways to break Taliban and al-Qaeda detainees in early 2002, up to eight months before Justice Department lawyers approved the use of waterboarding and nine other harsh methods, investigators found.

  11. A Senate report states the military “helped” design the torture techniques.

    “The Senate report found that at the SERE schools, safeguards were used when demonstrating torture techniques on American service members. However, many of the safeguards were left out when taught to CIA interrogators.

    For instance, the limit on the amount of water poured on a detainee during a waterboarding, for example, was raised from two pints to 1.5 gallons.

    The report notes that other military officials forcefully warned against using the SERE techniques against detainees. Some warned that use of the techniques would be illegal. Others emphasized that they would be counterproductive.

    Lt. Col. Morgan Banks, a senior Army SERE psychologist, wrote in a 2002 memo cited by the Senate report that while applying pain could make detainees talk, it could not make them tell the truth.

    “This will increase the amount of information they will tell the interrogator,” Banks wrote, “but it does not mean the information is accurate.”

    Senate Panel: Military Agency Had Hand in Developing CIA Interrogation Methods
    Report also says experts helped create legal justification for abusive techniques

  12. Professor,

    I’m curious how you define “torture.” I’m not saying I like everything that happened at Gitmo, but I have a hard time believing that an abdominal slap is torture. Am I wrong? Does a facial slap cause “severe physical or mental pain or suffering,” the definition of torture under the relevant statute/treaty? Regardless of its propriety, effectiveness, etc., it seems a reasonable interpretation of the statute to say that slapping someone (or even “walling” them) falls outside this definition.

  13. Buddha,

    The truth is what I want it to be. Damn the others. What a way to run an Empire Geo.the II.

  14. “High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country,” Adm. Dennis C. Blair, the intelligence director, wrote in a memo to his staff last Thursday.


    High value information from torture?

    Like the WMDs and Saddam supporting al Qaeda?

    I guess his definition of “high value” is “high propaganda value for Neocons, truth be damned”.

  15. You know, that “it works” argument is getting old real fast. Illegal and unethical is illegal and unethical. But let’s look at the argument, shall we?

    My neighbor plays his stereo very loud.

    He has dog that barks at all hours.

    I have a right to protect my property rights from being intruded upon by persons/events preventing my free use and enjoyment.

    To create a restful environment and enjoy my property in peace, it’s okay to kill both the dog and the neighbor because dead things are intrinsically quiet.

    It’s perfectly legal because “it works”.

    Yeah . . . sure it is.

    It’s also ethical. Because “it works”.


    I need a sarcasm font to complete this.

  16. rafflaw,

    I completely agree with your words. There is something amiss and surrealistic about Cheny and others running around crowing the benefits of torture. Those involved should have been under investigation long ago. This is not a difficult decision, it is a completely clear one.

  17. I think I have it:

    Obama, not wanting to disenfranchise the “Right Wing/ Aisle” is letting the public opinion dictate what he should do. And the public is speaking. It is one thing to run a campaign and yet another to run a country. He cannot just give up Bush or Cheney as he has his own hide to fear.

    He is risking alienating the Left Wing/Aisle supporter with this approach. As justice is wanted now. Some of us want immediate results and for us that know. The wheels of justice especially federally turn slow. slow. slow. slow.

    It is a risk that I presume that he is willing to take. He will soon find out that 4 years is a short one especially when he has to start rerunning in 2.75 years.

  18. I am a bit confused by the apparent leaking of Blair’s memo suggesting that torture works. As Prof. Turley has stated on numerous occasions, the issue is only whether we tortured people, not whether they got any information from that torture. I would like to see the information that the intelligence community is claiming that they got, because these are the same folks who did the torture. Why should they be believed and why don’t we bring the FBI into the picture that has claimed that the techniques were torture and that they were not getting much usable information. If the Bush Administration tortured people, everyone who authorized it needs to pay the price of their war crime activity. Everyone.

  19. JT, would you be satisfied with disbarment/impeachment? How strongly or effectively is OPR likely to recommend it,
    ya think?

    From LAT -also, today

    Obama open to inquiry on CIA tactics
    The president reaffirms that agents won’t be prosecuted, but says those who shaped the legal arguments might.
    By Peter Nicholas and Greg Miller
    April 22, 2009

    “… The Justice Department already has an investigation under way. Its Office of Professional Responsibility has been conducting a review of the memos “to determine whether they were consistent with the professional standards that apply to department attorneys,” spokesman Matthew Miller said.

    The investigation could lead to a variety of recommended disciplinary actions — including disbarment and criminal prosecution — against several lawyers who once worked in the Bush Justice Department, including Jay S. Bybee and his subordinate John C. Yoo.

    The Justice Department inquiry is expected to issue sharp criticism but not recommend anything as serious as criminal charges, according to current and former Justice Department officials…

    … Yoo, a visiting professor at Chapman University School of Law, faced protesters Tuesday as he spoke about his role in crafting the interrogation memos.

    He told a packed auditorium that the legal advice was correct and necessary in the fearful days after the Sept. 11 terrorist attacks. He credited the enhanced interrogation techniques with preventing other attacks on U.S. soil for more than seven years.

    Fellow law professors at Chapman, however, accused Yoo and Bybee of “torturing” the law to justify illegal exercise of power and abuse of prisoners… “

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