The New York Times has published a blistering editorial calling upon President Barack Obama to fulfill our obligations under domestic and international law and investigate and prosecute those responsible for the torture program under the administration of President George W. Bush. The American Civil Liberties Union is also calling for the appointment of a special prosecutor to investigate the program and possibly prosecute those responsible. The Obama Administration has steadfastly refused to prosecute anyone despite its admission that, to quote Obama, “we tortured some folks.” The political costs of such a prosecute were likely viewed as too high and Attorney General Eric Holder has again taken the politically expedient approach in avoiding any serious effort to hold those responsible for these crimes. In the meantime, many of those who would be prosecuted under domestic and international law have been writing books and giving interviews — casually discussing acts that are considered war crimes under international law.
The editorial, entitled “Prosecute Torturers and Their Bosses,” takes the position long advocated by experts in the field and various academics, including myself. There is no question that we tortured people under this program. While there are plenty of torture deniers about, both U.S. and international law is clear. Waterboarding is torture and we have prosecuted both our own citizens and foreigners for this long recognized form of torture despite early denials from people like Ashcroft. Moreover, Obama has admitted that it was torture. Holder admitted it was torture. The United Nations has denounced it as a torture. Leading Republicans and Democratic leaders have denounced it as torture. The United States Senate denounced it as torture. However, not a single person has been prosecuted by the Obama Administration. Instead, the Administration has been threatening allies who have threatened to start their own torture investigation under international treaties.
I have previously written about the cynical calculation that led to Obama blocking the prosecution for those responsible for the torture program. He knew such prosecutions would be unpopular, and with so many constitutional principles since that time, he just did not see the value in adhering to principle (even those embodied within binding treaty obligations). 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. 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”). As I have written before (here and here), the Obama Administration has destroyed some of the core Nuremburg principles, particularly in its revisal of the “superior orders defense” to excuse U.S. officials.
The board notes that such an investigation would clearly include “former Vice President Dick Cheney; Mr. Cheney’s chief of staff, David Addington; the former C.I.A. director George Tenet; and John Yoo and Jay Bybee, the Office of Legal Counsel lawyers who drafted what became known as the torture memos,” the editorial reads. “There are many more names that could be considered, including Jose Rodriguez Jr., the C.I.A. official who ordered the destruction of the videotapes; the psychologists who devised the torture regimen; and the C.I.A. employees who carried out that regimen.”
The New York Times asks whether the Obama Administration has “the political courage” to order an investigation. That question unfortunately has been loudly and repeatedly answered in the negative.