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.
Not one of the moral preeners even bothers to address the actual moral dilemma faced by the decision makers at the time. The techniques were approved for use to try to get information to prevent further attacks. Apparently, if these paragons of moral virtue had been the decision makers they’d decide not to approve the techniques and then if a second, third, etc. attack occurs they’d be fine. Thousands of innocents may die but at least they didn’t dunk a guy’s head in water, so they have their principles. Right.
The reason you know they’re partisan hacks is because only “Paul” acknowledges the moral equivalence of what Obama is doing now with drones.
If they were truly principled moralists they’d be arguing for Obama’s immediate impeachment so he could be tried for ordering the execution of at least two Americans he ordered executed without benefit of due process. But they’re not making that case.
Jebus, Inga, how many of those have you drained today?
defending the indefensible
People can keep using this phrase, and I’ll keep posting this:
http://www.logicalfallacies.info/presumption/begging-the-question/
http://justbeer.files.wordpress.com/2008/09/redmenace.jpg
And the Red Menace is baaaaaaack!
Inga – Putin is back, so the Red Menace is back. Actually a lot of the older Red Menace are full professors in universities.
“indefensible”
Re-read Chip S. post above.
Compare and contrast.
As a liberal, for my own part, I was for the Impeacment of Clinton for perjury despite the rationalizations by those on the Left that it was a lie about a private sexual matter. As a matter of law, the subject matter of the lie is irrelevant as long as the lie is material to the case. The Left defended the indefensible then, and the Right is defending the indefensible now.
Jeff, I am not a big fan of Clinton and did not vote for him either. Since this is a legal blog, I am sure that you will find that perjury in a civil trial is rarely if ever the subject of criminal process. In FACT, executives have committed perjury before Congress and have not suffered one whit for doing so. Then you fail on the relevance of that question to the suit. Clinton’s affair with Lewinsky was not exactly relevant to the suit with Jones. So that was an extreme stretch of a partisan nature. When you can show me that criminal indictments are the norm for perjury in civil trials AND that Clinton’s sex life with other women is relevant or a crime, THEN I will agree with you.
Clearly.
We are not related !
See?
You have Chip S., then you have Jeff S.
Compare and contrast.
I know one thing for certain: the heart is not the seat of love and compassion. Cheney got a new heart, but we have the same Cheney! Conclusion? He needs a new brain…
Start with the oldest war crimes first, and go from there.
I’ll grant FDR and Kennedy clemency, given that they dead, although we could convict them in absentia.
So start with Clinton.
Same charges as Cheney.
You go after him first and I’ll be on your side as you prosecute Cheney.
If not, this is just old partisan sniping.
Germany prosecutes German war criminals to this day.
That’s why I said “governments” and not “nations” @2:10.
The point remains that the prosecution of war criminals by the victorious governments or the regimes they established as successors is not the same thing as what the NYT and many here advocate.
It seems pointless to rehash the same issues over and over. We all know what the points of contention are, and they don’t appear to be resolvable. What I think is hard to argue against is the proposition that trying Bush, Cheney, Yoo, et al. for actions that they undertook in the defense of the nation would be incredibly divisive when public opinion in the US regarding the justifiability of torture are as split as they are on this blog–tho slightly in favor.
http://www.pewresearch.org/fact-tank/2014/12/09/americans-views-on-use-of-torture-in-fighting-terrorism-have-been-mixed/
At a time when this
https://davesdominion.files.wordpress.com/2010/09/man_jumping_out_of_wtc_3.jpg
was still a vivid image in most Americans’ minds, the line b/w the acceptable and the unacceptable was moved by exigency in an unprecedented fight against an enemy that does not even pay lip service to the Geneva Conventions.
Whether in hindsight–and in safety–you think that decision was wrong or right, you should answer this question: Is a prosecution of Bush, et al., really intended solely to disincentive torture, or is it meant as retribution for what I insist were wrongs?
I think an explicit law stating that the US must adhere to the GC in all circumstances regardless of foe would suffice to disincentive torture. Heck, the US could simply ratify those protocols of the GC that is has previously refused to agree to.
I don’t think that the case that Bush et al. are war criminals is sufficiently clear that it justifies retribution.
So I think a prosecution is unjustified and ill-advised.
1949, and promptly ignored.
Did any of the Vietnamese get strung up for torturing our soldiers?
Geneva Convention:
“Prisoners of war must at all times be humanely treated. Any unlawful act or omission … causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.”
“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”
“Prisoners of war shall enjoy complete latitude in the exercise of their religious duties, including attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the military authorities.”
“The following acts are and shall remain prohibited … cruel treatment and torture; … Outrages upon personal dignity, in particular, humiliating and degrading treatment; ”
“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory … are prohibited, regardless of their motive.”
(Geneva Convention, 1949)
UNLESS YOO, HAVE A GOOD ATTORNEY….wink wink
mark – the GC is only between signatories.
““But mom, Jimmy did it too and you didn’t ground him. No fair!”
Which isn’t fair.
So why Cheney but not FDR, Kennedy, Carter, and Obama?
@Mike.
Yup, we never got past those hoary socialists and communist sympathizers.
Their ideas never died, just got renamed and reformulated.
Old wine in new skins.
Just wait, they’ll try to rehabilitate Alger Hiss soon enough.
Maybe it really is 1958 and I’m 12 again, because I’m also seeing a lot of, “But mom, Jimmy did it too and you didn’t ground him. No fair!”
“These cries of ‘war crimes’ are just typical communist claptrap.”
I must have died and come back in 1958 without realizing it.
Mike A – the names may change but claptrap is still claptrap.
@M appleton
rape as “enhanced seduction technique” AWESOME!! that’s absolutely perfect. 1984 is upon us. war is peace, slavery is freedom…
just pay attention to the double speak being put out by MSM outlets.
my favorite was when ISIL was becoming news, and the network talking head announces ISILs planning on “attacking the Homeland.” now if as in the olden days he would have announced ISIL intent upon “attacking the United States,”
it is not as incendiary.
…they plan to attack the United States implies we are cohesive, united, strong. not so upsetting, is it?
..but announcing that they are gonna attack the “Homeland,” elicits a much more visceral reaction…..THEY ARE ATTACKING MY HOME.
Manipulation of our fear is very important as it allow the ruling class to tell us underlings that they are taking away our constitutional rights and civil liberties to protect us. they are arming law enforcement with military surplus weapons and vehicles… for our protection…coming soon to a tv near you (probably not till jeb bush takes office) will be a return of the “threat meter,” remember that bush manipulation technique?
ChipS,
Germany prosecutes German war criminals to this day. Apparently some of our alleged war criminals have been advised not to travel to the EU for fear that they could be arrested. Is there any doubt that a beloved comedian would have been prosecuted 40 years after his alleged crimes but for the running of the statute of limitations? But the statute of limitations for war crimes never runs out…. Believe me, these men and women cannot rest assured that they will never be prosecuted unless they are pardoned.