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.
Good luck finding a jury.
The world is and can ever only really be little more than superficially civilized. Barbarism boils inches below the surface always ready to erupt unpredictably anywhere at any time. Barbarians shall reap what they sow. Perhaps Obama having come to know the violent world as it is understands more than the New York Times and the ACLU the many dilemmas poised for morals and ethics.
Vapid response.
I can think of three reasons why Obama won’t prosecute:
1) Obama is a serial killer. The intelligence officers give him specific names of who they’d like assassinated with drones, and Obama personally decides if he’s going to let them live or not. So far, hundreds of innocent people have been killed in what the criminal state euphemistically calls “collateral damage”. He knows if he orders a politically trumped up prosecution, he will be next.
2) Hundreds of American military are waterboarded as part of SERE training. He probably figures if they can suck it up, then so can the people who ordered and planned commercial jets be highjacked and flown into building in an attempt to destroy our civilization.
3) He’s rational. Unlike “civil rights” zealots, he has reviewed the intelligence that went into the decision to approve enhanced interrogation techniques and he sees how foolish and shortsided it is to blindly apply a “strict liability” test without weighing the potential consequences had the techniques not been approved. If you’re a left wing lunatic who thinks Bush and Cheney approved the techniques because they are evil sadists rather than thinking it was necessary to try to stop a second attack, then I can see why you want a “strict liability” standard.
The German human rights group who are calling for prosecutions have as much moral authority as Italian American’s who are calling for prosecutions. No one in that German group tortured anyone. I heard Mussolini was a facist dictator known to have killed and tortured the enemies of his regime.
Sure Paul, just look above and read JT blogpost. There’s your cite.
Inga – if you read carefully you will see that water torture and water boarding are separate things. So, I will still need a cite.
Paul Schulte wrote: “if you read carefully you will see that water torture and water boarding are separate things.”
Paul Schulte is right. The psychologist involved with the waterboarding program under Bush, James Mitchell, said that waterboarding as practiced by the CIA under him (he himself waterboarded KSM) was not torture, but that some forms of waterboarding could become torture depending on how it was done. This is like what someone else said about Chinese Water Torture. Dropping a few drops of water on the forehead is not torture, but if done consistently and methodically thousands of times with no way of escaping it, then it could become torture. An attention getting slap is not torture, but it could become torture, depending on how it was administered.
Despite all the handwaving about how we prosecuted others for waterboarding, not a single example of convicting someone of torture for waterboarding alone has ever been cited. All we have are convictions for torture where waterboarding was done in addition to actual methods of torture like beating them. Furthermore, during those trials, the victim said that waterboarding was not painful, even though it would cause him to pass out. Another victim said water was pumped into his stomach and the interrogator would sit on his stomach and force the water out of his stomach. He said that was painful. The problem is that there has been presented no evidence that this form of water torture was practiced by the USA. Nobody pumped water down the nose or mouths of anyone.
People who claim we tortured prisoners as well as our own soldiers with waterboarding need to stop maligning our country on false charges. It is like calling someone a murderer who has never been convicted of murder in a court of law. Until the conviction, nobody should go beyond saying “alleged torturer.”
It’s also interesting how Bush has sort of been given a pass on this, but Cheney mad it very clear recently that Bush knew about it and approved it.
Maybe is another 100 years or so Germany will gain the moral authority. But there are still people living w/ tattoos on their forearm!!!
Germans have no moral authority on torture. That sounds like a National Lampoon piece. LOL!
Typical NY Times. And lets not forget Mr. Yoo, who has a nice and comfortable post as a chaired professor at a top law school in the US. Great things to learn as a law student. What a system.
Water boarding has been considered torture for hundreds of years. Do we also need a term for people who continue to assert it’s not torture? “Water-torture deniers”?
Inga –
Could we get a cite for this?
I am amazed and shocked that anyone can possibly think that we are capable of doing any wrong. It’s all political. Nothing to see here. Best to look forward. Always trust those in authority.
I wonder who will be the first to say the term Professor Turley used in this blogpost, “torture deniers”, is uncivil? You know, just how some complain that the term “climate change deniers” was decried as uncivil? Eh, who cares?
A German human rights group is calling for prosecutions for US torture of prisoners. Unfortunately, we’re not going to see any prosecutions or even investigations in this country. Thanks to JT for once again speaking out on our own government’s unwillingness to stand on principle and do the right thing in investigating and prosecuting these potential war criminals.
What Nick said!!!
Are Germans really going to sit back and allow the US to get away with doing the same thing that Germany has been shamed for the past 70 years?
Just goes to show you how far the N.Y. Times is out of touch with reality
You don’t have to “hate” someone to recognize that their actions constitute war crimes. Cheney is proud of his involvement in torture and says he would do it again. Isn’t that really the problem with refusing to prosecute?
Obama has let us down. The Congress has let us down. The Rule of Law has continued to suffer a death by a thousand cuts. Failure to prosecute the powerful and the rich is corrosive and decisive.
I think the current officials will worry that some rather embarrassing facts will come to light if prosecutions resulted. That will dissuade any effort to bring this to court.
It is amazing to me how many times Professor Turley can claim waterboarding has always been considered to be torture, yet nowhere does he cite a single law identifying it as such. Considering that prisoners waterboarded and tortured by the Japanese testified that waterboarding was not painful, prosecuting will be a waste of time and money. They will never get a conviction because there was no law that was violated.
Shocking!! The NYT hates Bush/Cheney. Just shocking. Let me know when they call for an investigation of Obama for all his unconstitutional moves. This is just red meat for some here. Steak tartare in the morning.