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.
As I said, this is steak tartare for the haters.
Obama knows his drone program is exponentially worse than pouring water on people. He arbitrarily kills innocents. NBC did a story that people involved in the drone program fear the same scrutiny when Obama leaves his throne, some leaving the program for that reason.
Some people only understand brute force and civilized debate has no impact on them at all. Cheney and friends only understand brute force.
Cheney will only respect an arrest warrant where he is physically arrested and fears real prison time – that is the choice he made!
Leahy’s Truth Commission plan gave Cheney a civilized way out of his war crimes but he chooses force, so let’s give it to him!
Darren Smith said …
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.
As usual, Darren has it right. NO President hasn’t a can of worms they’d not want reviewed, including Obama. I think Obama is foolish, even naive, but not truly stupid or self-destructive. Regardless of what any of us think about current or prior Presidents, the job entails many things that are unpalatable and the burden any President carries, including this one, is huge.
For me, I’d be happy if television and print news would just agree to ignore Cheney and put him out to pasture. That lure of DC celebrity is obviously just too much for him to avoid….it is a common affliction for those who go to DC young and never leave.
James Mitchell is not a torturer. Stop lying.
We want to hear from him because he was actually there and involved in it. Is the reason you discredit him because you want people to listen to you about it? Why should anyone listen to an anonymous woman on the internet about waterboarding? What is your experience with waterboarding?
They have known for EIGHT YEARS who is responsible for the torture. So WHY are they bringing it up again now? What’s the point? They didn’t prosecute anyone then, even after the party turnover in the next election.
There’s something the media is holding back or doesn’t know….this makes no sense…
Former Guantánamo Prisoner Speaks Out on Lawsuit Seeking Bush’s Arrest
http://www.democracynow.org/2011/10/20/former_guantnamo_prisoner_speaks_out_on
International War Crimes Tribunal
deoxy.org/wc/warcrim2.htm
Cheney To Be Indicted for Nigerian Bribery, Sought for Interpol Arrest
bradblog.com/?p=8227
WikiLeaks Documents Reveal U.S. Knowingly Imprisoned 150 Innocent Men at Guantánamo
http://www.democracynow.org/2011/4/25/wikileaks_documents_reveal_us_knowingly_imprisoned
James Mitchell needs to be prosecuted, why the heck would anyone listen to what he has to say about water boarding? He has NO credibility. We should listen to a torturer trying to mitigate his own guilt?
It’s truly tiresome getting into these ridiculous apologetics for water boarding. There were far more torture techniques used on prionsers, someone broke laws that most people recognize as being terribly wrong. If we as Americans don’t right these wrongs, it is WE the U.S of A that loses moral authority to speak on human rights abuses elsewhere in the world. At least there were trials and punishments for WW2 war criminals.
This could all be resolved if we passed laws against enhanced interrogation techniques being used on prisoners. Why doesn’t anyone seem to want to do that?
This defines a definite problem with our country; too many lawyers.
Even if Cheney believes his own logic on torture, shouldn’t a mature adult with any sense of morality apologize to those innocent people harmed also?
Why can’t he apologize to his innocent torture victims?
Ross – I have yet to see a harm to be apologized for.
Ken, If it’s going to be a porn flick we need to involve our porn expert, Mark Kernes.
Sony Pictures could make a killing by releasing sequels of “The Interview” comedy with this torture stuff. Obama and Kim water boarding each other in a sex scene. That ought to do it.
davidm2575
“…prisoners waterboarded and tortured by the Japanese testified that waterboarding was not painful…”
Did you even think about this sentence when you wrote it?
If waterboarding is not painful, then why do American torturers use it and why do the tortured give information when waterboarded?
If you are going to advocate a position, please do us the courtesy of thinking before you spout this kind of stuff.
Steve wrote: “If waterboarding is not painful, then why do American torturers use it and why do the tortured give information when waterboarded?”
If you listen to the interviews of James Mitchell who has been released from his gag order about admitting to his involvement in the SERE and waterboarding program, he tells you exactly why they chose waterboarding. It was because it does not cause pain and leaves no lasting effects, psychologically or otherwise. What it can do is create panic in a person, to make them think they will face torture or even death if they do not cooperate. They use it in the classic good cop – bad cop routine. He said that nobody confesses while being waterboarded. They cooperate with the “good cop” later.
To my knowledge, every one of our soldiers who waterboarded a prisoner has subjected himself to waterboarding. Even the psychologist who helped create the SERE program was waterboarded. Name a form of torture where the interrogators first torture themselves before torturing their prisoners.
Steve Fleischer – if you can prove that waterboarding is painful, please do.
I hold no such expectations from you Spinelli, “moral authority” nor intelligent reasoning is something you have the market on.
Dezza, Our host just filed a complaint alleging unconstitutional acts by Obama. I do like your opening line. Being Italian, food analogies are often part of my commenting. It appears you’re into dolce!
As long as we are thinking like Spinelli, let’s not forget the Japanese, they were sadistic torturers during WW2 to POWs. Japanese can never ever speak on an international issue regarding human rights abuses either. Forever have they lost “moral authority”. Comes a day when we don’t hold people of certain ethnicities as being guilty of “the sins of the fathers”, then we will have advanced as human beings.
I guess I just expect more intellectual chops from a person w/ a Masters degree from Marquette. The Jesuits must be slipping. It’s the Christmas season for us believers. I unilaterally end this discussion in honor of the birth of Jesus.
Nick – as a card carrying agnostic I do have to point out the Jesus the Christ (if real) was probably born in the spring of the year, or early summer at the latest.
One more reason we should have listened to George Washington and avoided foreign entanglements.
That said, both sides are right. Waterboarding and other torture diminishes our standing as the good guys and not just the guys with the biggest guns. On the other hand, intervening in other places in the world isn’t like walking to church. Foreign policy really is the Chicago way. People die, people suffer, and bad things happen.
If you aren’t a fan of the Marvel series of movies, I highly recommend them. Starting from Captain America the Winter Soldier, they are tackling these exact issues. Captain America is one argument, Iron Man the other. I’m mostly a Captain America guy myself.
Please excuse me for be a nerd.
Bailers – if we listened to Washington we would still be flogging soldiers and sailors.
Forget steak tartare, I’d rather move on to just desserts. As far as has been proven, the only unconstitutional act performed by President Obama has been making political appointments during what has long been accepted by most Presidents in modern history as a time when Congress is out of session. Funny that he is the only President to have faced such a challenge Oh yeah, that and that case in which the Republican SCOTUS justices decided that public companies like Hobby Lobby somehow have more rights than the actual human beings that are employed there and can ignore parts of our Nation’s laws because of the company’s religious beliefs. I would argue that there is in fact one more in that he is Constitutionally obliged to uphold our laws and that ignoring the prior Administration’s high crimes is not only illegal but unconstitutional. In this case I would gladly see him have his day in court if it means charging those before him with crimes that they openly admit to having carried out…crimes that have done far, far worse damage to our Nation’s reputation and safety than any of the litany of conspiracy inspired acts that the Right attribute (however unproven or disproved) to Obama. These “unconstitutional acts” are predominantly swirling in the fevered minds of hyper-partisan rightwingers and have already been intensely investigated by the Right in the House and dismissed by the large majority of America due to a pesky lack of evidence and live on mostly in the dreams of conspiracy minded fools who cling to their prejudices despite reason and that inconvenient lack of any shred of proof. Shocking! That said, if tangible evidence were to present itself tomorrow that proved that Obama commited a high crime or acted unconstitutionally I would support whatever consequences that force him to face justice. Unfortunately for America the Rightwing branch of this Nation chooses to gloss over and ignore…if not brazenly defend…the prior Administration’s many and varied acts that snookered America into a war of choice and the illegal program of torture that they themselves developed and implemented.
Vapid reasoning. Shallow thinking. If we hold Germans as a people! responsible forever for the crimes that were committed during WW2 by Hitler, we should hold Italians responsible for Mussolini’s crimes forever also. Oh heck! We should hold all white people as being morally bankrupt ad infinitum because white people bought, sold and owned slaves.
Inga – that would mean we have to hold blacks and Muslims responsible forever for enslaving blacks and selling them to Westerners.