Below is my column today in USA Today on the closure of the final torture investigation by the Obama Administration. Notably, in light of the rift with civil libertarians and his move to the right on national security matters, Obama is not running on civil liberties in this election or claiming to be champion for such rights. Likewise, liberal newspapers and commentators have criticized the Obama Administration and the Democratic Party for rolling back on strong language in the prior 2008 platform to civil liberties in the Democratic platform. The downgrading of civil liberties by the Democratic Party leaves civil libertarians without even a pretense of a party or candidate championing the cause in this election. In a prior column one year ago, I complained that President Obama had not just killed certain civil liberties but killed the civil liberties movement in the United States. That appears reflected in the tepid response to these issues in the party platform. Of course, while party platforms can be dismissed as meaningless statements, the final closure of the last torture investigations without a single criminal charge promises to have a more lasting impact on the law and our record on civil liberties and human rights. Here is today’s column:
Let it not be said that President Obama does not keep his promises.
As he prepared to accept his nomination for re-election last week, the president made good on a promise he made at the beginning of his term: No CIA officers will be prosecuted for torture. Attorney General Eric Holder quietly announced before the convention that the last two torture investigations would close (like all the prior investigations) without any charge. As a virtual afterthought, the Justice Department added that it would not address the “propriety of the examined conduct.” The “impropriety” involved two suspects who died under torture by CIA officials.
For those still infatuated with Obama, the announcement was the final triumph of “hope” over experience. Since Obama ran on a civil liberties platform, many expected an independent torture investigation as soon as he took office. After all, waterboarding is one of the oldest forms of torture, pre-dating the Spanish Inquisition (when it was called tortura del agua). It has long been defined as torture by both U.S. and international law, and by Obama himself. Torture, in turn, has long been defined as a war crime, and the United States is under treaty obligation to investigate and prosecute such crimes.
However, such a principle did not make for good politics. Accordingly, as soon as he was elected, Obama set out to dampen talk of prosecution. Various intelligence officials and politicians went public with accounts of the Obama administration making promises to protect Bush officials and CIA employees from prosecution.
‘Order is an order’
Though the White House denied the stories, Obama later gave his controversial speech at the CIA headquarters and did precisely that. In the speech, he effectively embraced the defense of befehl ist befehl (“an order is an order”) and, in so doing, eviscerated one of the most important of the Nuremburg principles. Obama assured the CIA that employees would not be prosecuted for carrying out orders by superiors. This was later affirmed by Holder’s Justice Department, which decided that employees carrying out torture were protected because they followed orders. The administration then decided that those who gave the orders were protected because they secured facially flawed legal opinions from the Justice Department. Finally, the Justice Department decided not to charge its own lawyers who gave those opinions because they were their . . . well . . . opinions.
This, of course, still left two inconvenient corpses in Iraq and Afghanistan. In 2002, Gul Rahman was grabbed in Pakistan while seeing a doctor who is the son-in-law of an Afghanistan warlord. He was taken by the CIA to the infamous Salt Pit, a former brick factory north of Kabul. He was beaten by guards, stripped and shackled to a cement wall in near freezing temperatures. He froze to death overnight. The CIA officer in charge of the prison who ordered the lethal abuse has been promoted, according to the Associated Press and The Washington Post.
The second torture case was that of Manadel al-Jamadi, who died in 2003 in Iraq’s infamous Abu Ghraib prison. Al-Jamadi’s face was featured in pictures with smiling U.S. troops posed with his dead body — giving the thumbs up sign. A CIA official had interrogated al-Jamadi by suspending him from a barred window by his wrists, which were bound behind his back. The CIA interrogator, Mark Swanner, continued to demand answers even when al-Jamadi stopped responding. Swanner accused him of “playing possum” and ordered him to be repositioned for more interrogation, according to a New Yorker account. The guards finally convinced Swanner that the man was deceased. Al-Jamadi’s death was officially ruled a homicide.
CIA promotions
Not only have people like the commandant at the Salt Pit been promoted, but various CIA officials associated with the abuse of detainees have also been promoted under President Obama. Likewise, the lawyers responsible for those now rejected legal opinions have been promoted. One of the most notorious, Jay Bybee, was even given a lifetime appointment as a federal judge in California.
We have gone from prosecuting torture as a war crime after World War II to treating allegations of torture as a “question of propriety” under Obama. Hundreds of officials, including President Bush, were involved. People died in interrogation. High-ranking CIA officials admitted that they destroyed evidence of torture to keep it from being used in any later prosecutions. Yet, after a years-long investigation, not a single CIA official will be charged with a single crime connected to the program. Not even a misdemeanor or a single bar referral for an attorney. Well, no one except former CIA official John Kiriakou, who is awaiting trial on criminal charges for disclosing information on the torture.
After World War II, political philosopher Hannah Arendt coined the phrase “the banality of evil” to describe those who committed war crimes. The Obama administration now can add the “impropriety of torture” to our lexicon. The image of a man beaten, stripped and frozen to death in a CIA prison is not nearly as unnerving as a nation that stood by and did nothing about it. We have become a nation of dull-eyed pedestrians watching as our leaders strip away the very things that distinguish us from our enemies. With our principles gone, we are left with only politics and, of course, our sense of propriety.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
USA TODAY September 11, 2012
There has been some discussion in earlier threads about how closely politicians follow voting trends, that for instance, Vichy-Democrats would understand voters withholding votes and wouldn’t confuse it with an increase in conservative values. Indeed, one of the most persuasive arguments that not voting for someone is effective depends on politicians craving the vote and reelection above all else, so much so that they will use sophisticated tools and statistical analysis to measure voter intent. But this may be changing just as the two party system is in reality becoming just a big one party orgy of the rich that has co-opted and re-fashioned our political system partly out of intent and partly by the way things evolve in systems where the greatest corruption is always rewarded.
There is a growing sense that politicians, particularly Democrats, are barely even attempting to hide their intentions these days. Obama and his administration are not even pretending to come out on behalf of the striking teachers in Chicago. His cut-throat, Rahm, is explicitly pitted against the teacher’s union. Obama has stated publicly that he was frustrated at not getting credit for being willing to gut and cut a la Simson-Bowles cat food commission. Ruthless behavior abroad and jingoism have become a point of pride. One wonders if such behavior isn’t in effect also thumbing one’s nose at one’s traditional base of voters. It’s quite conceivable that politicians across party lines are beginning to feel that they can generate the votes they need by propaganda and handling the media far more cost effectively than by pandering to voters by keeping campaign promises. After all, the Republicans pander to voters only insofar as they have convinced them to vote in the interests of the 1%. This isn’t representing one’s constituency or its interests; it’s a re-definition of voting as mass hypnosis. And Democrats are drooling to copy the model.
But even if this is an accurate reflection of what’s going on in both parties, it is still an excellent reason to pit one party against the other; that is to use strategy, rather than to continue the winner take all sports model that we are being sold as absolutely critical to our continued existence. If X party has a majority in the Senate, put a Y in the Oval office, and visa versa. This is the one place where they are convinced they must continue the script. That not doing so would be so obvious that people would start dropping out of the system; stop paying taxes and mortgages and credit cards, and so on.
Didn’t Obama vow to close Gitmo?
http://angryblackladychronicles.com/2012/06/14/glenn-greenwald-supported-the-invasion-of-iraq/
http://abcnews.go.com/Blotter/guantanamo-inmate-died-identified-yemeni/story?id=17212593#.UE_XRaCd58E Been there since 2002. Recently been on a hunger strike….
From Greenwald’s article:
“General Michael Hayden, spoke this week at the University of Michigan and, as he (yet again) heaped praise on Obama for continuing the crux of the Bush/Cheney approach to terrorism, he made this precise point, as reported by Wired [my emphasis]:
“President Barack Obama has closely followed the policy of his predecessor, President George W Bush, when it comes to tactics used in the ‘war on terror’ – from rendition, targeted killings, state secrets, Guantánamo Bay to domestic spying, according to Michael Hayden, Bush’s former director of the Central Intelligence Agency and the National Security Agency.
“‘But let me repeat my hypothesis: Despite the frequent drama at the political level, America and Americans have found a comfortable center line in what it is they want their government to do and what it is they accept their government doing. It is that practical consensus that has fostered such powerful continuity between two vastly different presidents, George W Bush and Barack Obama, when it comes, when it comes to this conflict,’ Hayden said Friday while speaking at the University of Michigan …
“‘And so, we’ve seen all of these continuities between two very different human beings, President Bush and President Obama. We are at war, targeted killings have continued; in fact, if you look at the statistics, targeted killings have increased under Obama.’
“He said that was the case because, in one differing path between the two presidents, Obama in 2009 closed CIA ‘black sites’ and ratcheted down on torturing detainees. But instead of capturing so-called ‘enemy combatants’, President Obama kills them instead, Hayden said.
“‘We have made it so politically dangerous and so legally difficult that we don’t capture anyone anymore,’ Hayden said. ‘We take another option, we kill them. Now. I don’t morally oppose that'”.”
“A detainee at Guantánamo was found dead in his cell on Saturday, according to camp officials. He is the ninth person to die at the camp since it was opened more than ten years ago. As former Gitmo guard Brandon Neely pointed out Monday, more detainees have died at the camp (nine) than have been convicted of wrongdoing by its military commissions (six). This is the fourth detainee who has died at the camp since Obama’s inauguration.
Although the detainee’s identity has not been disclosed, a camp spokesman acknowledged that he “had not been charged and had not been designated for prosecution”. In other words, he has been kept by the US government in a cage for many years without any opportunity to contest the accusations against him, and had no hope of leaving the camp except by death.
Indeed, dying in due process-free captivity now appears to be the only way for many of these detainees to leave.”
http://www.guardian.co.uk/commentisfree/2012/sep/11/guantanamo-prisoner-death-democrats
You can say oh girl, but not “oh boy!” Got it? You’re sounding very racist.
Oh boy…
Brooklyn Bridge,
Please do not say “boy” in the same context of presidential election. That sounds very racist, don’t you agree? It’s not permissible to say liar, cheat, promise breaker or I’ve made more money than you since I have become president. These will bring the wrath of those folks that are for whatever you’re against. Got it boy!
It’s amazing that no one has yet brought the purity charge down on the heads of commenters who don’t agree that Romney is far more horrifying than any conceivable abuse of our constitution including warrentless executions. So far, criticism of Obama is only proof of racism or it doesn’t properly acknowledge how much worse X would be than Y where Y is “our boy” on “our team” and can do any illegal thing X ever did, and then some, as long as he does it better.
BTW, has anyone asked themselves why the Republicans are following the exact same strategy as last time? Does anyone seriously imagine Republicans are not aware of the pattern? Sarah Palin guaranteed a loss and so does Paul Ryan and pretty much for the same reason. Palin and Ryan are both simply too far out, too patently caricatures of party extremes for the average voter and the Republicans know it. They know it perfectly. Romney knows it. Republicans are perhaps evil, and Romney may be sick with lust for fame and wealth, but none of them are stupid. Ryan’s position on woman’s rights alone is not only horrifying, it is so horrifying that it begs a question. It’s like saying, “I simply don’t care about 50% or more of the vote.” So, it begs the question of whether or not Romney or the RNC or both are not doing this on purpose; taking a dive. And why not? Republicans are getting exactly what they want and so are Democrats; they are getting paid handsomely and they will continue to get paid long after they have been forced to give up the drug of power. They will literally have generational wealth; something just as good as aristocracy and functionally almost identical. And all they have to do is move the posts further to the right. And then further still. The golden rings; the fabulous wealth of the social saftey net; the staggering re-definition of ownership and stripping of property wealth from the middle class, the power, death lust, and spoils of perpetual war; they will all go to the same people regardless of which “team” is designated to skewer the ring with the stick and which team is chosen to push the ring closer..
And how does one get away with this in plain sight? Well, partly, and no small part at that, by convincing a lot of people that the two political parties are identical to that froth inducing, emotionally explosive notion of two team – winner take all – sports, only where “sportsmanship” is constantly re-defined by the winner and winning is defined by who is willing to be more corrupt (which is exactly how banks are now “winning” in the competition we jokingly refer to as “capitalism”).
Dear Jill
18 U.S.C. § 1506 – Theft or alteration of record or process; false bail makes it a felony to falsify or otherwise avoid any record in any Court in the United States whereby any judgment does not take effect. 18 U.S.C. § 1506 – Theft or alteration of record or process; false bail reads“Whoever feloniously steals, takes away, alters, falsifies, or otherwise avoids any record, writ, process, or other proceeding, in any court of the United States, whereby any judgment is reversed, made void, or does not take effect; or Whoever acknowledges, or procures to be acknowledged in any such court, any recognizance, bail, or judgment, in the name of any other person not privy or consenting to the same—Shall be fined under this title or imprisoned not more than five years, or both”
Blacks Law Dictionary 1077 (6th ed. 1990) defines obstruction of justice as:
“[i]mpeding or obstructing those who seek justice in a court, or those who have duties or powers of administering justice therein. The act by which one or more persons attempt to prevent, or do prevent, the execution of lawful process.”
A diligent search of the DOJ website produced no evidence that DOJ ever prosecuted anyone for 18 U.S.C. § 1506 – Theft or alteration of record or process; false bail.
Woostys’ still a cat,
My chimpanzee has more ability to do the right thing, you, not as far as I have read. I am no more of a bot than you. However, I may be a butt, but at least I am not an ass.
Tony C.,
The pardon was constitutional, but it was still the wrong thing to do. Just as not prosecuting the Bush Administration and CIA officials who knew and approved and performed the torture was a mistake.
“Forget it Jake. It’s Chinatown.”
@rafflaw: But Ford pardoning Nixon was Constitutional, I think.
My point is that Obama had an obvious Constitutional route to follow that he certainly KNEW about, and therefore he refused to follow it. Why? I think because that route would set a precedent, it would require he acknowledge that torture was illegal, and therefore would not protect HIM and HIS administration. In other words, he did not want to prohibit himself from doing the same thing, so the precedent he chose instead is the Nixon/Bush/Cheney law, “If the President does it, it isn’t illegal.”
Tony C.,
I don’t disagree that it would have been better to have made the call to prosecute the torture crowd, but it would have been an unprecedented bombshell politically. I have argued for years that Ford should never have pardoned Nixon and should have allowed the process to proceed. I believe the same here.
Here’s what has happened in our nation. Both the majority if Republicans and Democrats have decided they will not hold the powerful to account. Republicans didn’t do it under bush and Democrats now join with their cause under Obama.
The failure of the population to hold to account the most powerful people is what prevents anything from getting better. Without people who will stand up and say, No, you may not do this, to the most powerful people, there is no brake no their behavior, no limit to their depravity.
What will stop the crimes of the powerful is criminal prosecution and a strong population. What will bring about criminal prosecution is a strong population willing to take on the powerful and demand they account for their crimes in a court of law.
As of now, most of our population cowers before the powerful, terrified to say the truth and to demand they be held accountable. We have replaced courage with servitude to the powerful. Servitude and cowardice are the hallmarks of legacy party members. If you want to leave a legacy, then change, for real. Be courageous. Stop mincing around the powerful. They can hide behind you only as long as you allow it.
The problem with civil liberties in this country is that civil libertarians largely abandoned politics several decades ago and instead relied on the judiciary and elite opinion to safeguard our rights. Know why the right to bear arms is more protected than the right not to be tortured? Because the NRA got down in the trenches and did the dirty, boring, unglamorous and often icky work necessary to protect it.
Mike
Dung Ho heep is a Rightless bot….
“The same Department of Justice that is hunting down the one man who spoke against torture from the inside still maintains a special unit, 60 years after the end of WWII, dedicated to hunting down the last few at-large Nazis. They do that under the rubric of “never again.” The truth is that same team needs to be turned loose on our national security state. Otherwise, until we have a full accounting of what was done in our names by our government, the pieces are all in place for it to happen again. There, if you want to know, is the real horror.” -excerpt from a piece by Peter Van Buren (“Our 9/11 Torturers”, TomDispatch)
(The entire article is worth reading, but I can’t get the link to post.)