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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