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.
Zedalis, they sure didn’t like it when anyone brought up Bush’s overreaches when Obama’s were being pointed out. Now they point to previous Presidents’ to validate Bush/ Cheney torture program. If any previous President had a similar torture program they too should be at risk for prosecution. However I doubt that this type of torture program happened under any previous President.
Because the prosecution of war crimes should be conducted exactly as a “But, Suzy did it too!” sibling argument with Mommy as the judge.
Given the inability/refusal to answer Chip S.’s queries or even attempt to defend not also prosecuting Clinton, Carter and Obama for war crimes (plus FDR and Kennedy in absentia), I will hereafter assume this issue is just another mere leftist shibboleth.
Cheney is Goldstein, and we have always been at war with Eurasia.
https://s3.amazonaws.com/PHR_Reports/doing-harm-health-professionals-central-role-in-the-cia-torture-program.pdf
“Doing harm, health professional central role in the CA torture program”. These medical people who were involved might be wise to be concerned, I think perhaps they won’t get off scott free and should probably be quite concerned.
The conduct of the psychiatrists and physicians who participated in the torture program are being called into question. The constant monitoring by doctors of the techniques so that the techniques would not cross the line into torture (severe or permanent physical or mental injury) underpinned the whole legal justification that these techniques were not torture. These doctors have seemingly violated their Hippocratic oaths to do no harm as well as violated international law not to conduct research experiments on prisoners.
Paul, no one likes a know it all, especiall when he doesn’t as evidenced by ghe great majority of your asseryions . You seem to think you know more about any given subject than people who have the credentials and education far beyond you, a mere elementary school teacher. You even refute Professor Turley who is INFINITELY more qualified to speak on law, torture and most subjects than you are. You know far less than you think, I would bet they were poking fun of your tendency to be a know it all who doesn’t.
Inga, you should give him a new name, Cliff of Cheers.
Inga – as usual you are wrong, I was not a mere elementary teacher. I taught high school and college, generally. I do not have to lie about my background.
Paul’s theme song.
http://youtu.be/rmPRHJd3uHI
Slow news day? The usual suspects trying to pad their post count; no turf being won or lost and Rafflaw still pretending the rule of law is the creation of the progressive left. Nicely done indeed!
Paul, what you think is of absolutely NO consequence to me. The majority of what you post is pure baloney. I’ve never come across another commenter who is so full of himself yet such an empty vessel.
Inga – I was just at dinner with two academics last night and was introduced as the person who knows too much. So, I have to take you ad hominem attack as a Saul Alinsky attack. Better people than you tried and lost.
Thank you, Darren.
Zedalis
In the past, the US contended ICC prosecutions based upon troublesome states’ government’s false accusations would lead to difficulties in the US maintaining its legitimate leadership role as a superpower.
While I agree this has been an issue historically the US faces such accusations from these states routinely and the true commitment to ICC jurisdiction means a responsibility the US leadership is not willing to accept. Having the option of impunity creates a worrisome potential for abuse.
Having no jurisdiction by the ICC, the US could be called before the UN Security Council but the US has a permanent seat in such and as a result veto power rendering of course such an action to be moot.
As far as I know this leaves the most likely trier of the US Government would be internal such as Congress through its impeachment power or perhaps the Justice Department, but since the latter is headed by an attorney general having a close relationship to the presidency through being a cabinet position and Congress being effectively self policing it could mean the only course of redress would be a civil case in the judiciary and many roadblocks are put in that path.
Darren, Since we now know the torture and abuse of prisoners in Iraq were in FACT approved by Cheney, and Bush, can the poor GIs who were railroaded for following orders be absolved or have their convictions overturned? I would hope that the woman General who was court martialed and demoted and kicked out will have her case reviewed.
Randyjet,
I am not qualified to make a determination since I am unfamiliar with the UCMJ, its administration of justice or applicable case law but I would speculate these individuals could have a better chance of appeal or defense in this light; especially when the administration crafted a legally “permissible” means to establish these actions were not torture for the purpose of qualified immunity provided to these soldiers.
However there remains the question of the “Just following orders” defense being not completely an excusable means. An example of this is William Calley’s trial.
Darren, As I recall, Calley did claim he was following orders, but his superiors denied that they gave him such orders. Capt. Medina had F Lee Bailey as his attorney, and even though witnesses saw him shoot and kill many of the people of the village, he got off.
I would think that they could appeal their convictions since the new information shows clearly that higher ups, initiated the torture. They may well not get completely cleared, but their sentences may be mitigated.
Randyjet,
I agree. I might also add in a way there is a similarity of circumstance between Chelsea Manning and Hugh Thompson. Both revealed wrong doing by the government, both received retaliation. Chelsea certainly worse.
I think had Manning confined the leak to the murder of the reporter and the rescuers, she probably would not have gotten much punishment. The problem I have with her actions is that the dump was wildly irresponsible in revealing things that constituted a real danger to persons, and served no good end in revealing candid assessments by individuals who DO have a right to expect confidentiality in pursuit of their jobs.
Snowden on the other hand while legally questionable did the right thing morally. I endorse Prof Turley’s recommendations on his case.
Randy and Darren,
That comment exchange brought Warrant Officer Hugh Clowers Thompson, Jr. to mind. Warrant Thompson was pilloried by some members of Congress who wanted him court martialed for stopping the killing at My Lai. Thompson positioned his OH-23 between Calley and the victims. This exchange took place:
Thompson took off again, when his Crew Chief advised him the American soldiers were again killing civilians. Thompson saw Sgt. Mitchell executing people in a ditch. He put his helicopter between the soldiers and the civilians in the ditch. He told his crew of gunners on the M-60 .50 caliber machine guns, “Y’all cover me! If these bastards open up on me or these people, you open up on them. Promise me!”
He dismounted from the helicopter and confronted Platoon Leader Stephen Brooks.
Thompson coaxed the terrified villagers out of the ditch and into the two Huey gunships accompanying him.
Thompson got hate mail, dismembered animals left on his doorstep, and was shunned by other soldiers.
He was later given the Distinguished Flying Cross and was eventually discharged as a Major. He was still hated by some soldiers until his death. The wall of silence is not always blue. And like then, the bad guys still have their enablers in the halls of Congress.
randyjet – so you have proof that Cheney and Bush ordered the abuse of prisoners that the general got demoted for?
Schulte,
Undoubtedly Nixon would have been prosecuted but for Ford’s pardon. There is little doubt that history will not be kind to Bush and Cheney’s legacy, but I will fondly remember the bumber sticker created against their election campaign “Lick Bush and Dick”
Inga, I believe the whole anal motiff originated with our good men and women stationed at Abu Gharaib, along with the lamentable governmental practise of excusing the abomination of torture by way of the false equivalencies still being used today.
Zedalis, so it seems. I’d like to hear Pogo, who is a physician, say that rectal feeding and hydration were a better option than an IV or a NG tube, especially considering that the prisoner was likely strapped down anyway. I’ve read that doctors who signed off on those procedures will be investigated and if found guilty their medical lisences pulled.
Inga – I heard the doctors who okayed the rectal rehydration where getting a Presidential commendation.
Chip, if only you could make the jump from bad to illegal, you might be onto something.
I see. Asking the people who want to put Bush/Cheney on trial to substantiate their claims of illegality constitutes “torture advocacy”.
That’s about on an intellectuel par with The important thing is that American jurisprudence does not condone torture because torture is bad, MKAY?
This stuff is positively dazzling.
Darren Smith > > Would this be caused by a US aversion to justice for all or merely the lack of the desire to be judged herself?.
Inga >> The names never change, armchair warriors with no moral compass remain ever broken.
Matters such as this make it unlikely the US foreseeably will accept full jurisdiction of the International Criminal Court.
Inga >> “No DBQ, that’s your schtick.”
Apparently, that is only the case if an unflattering photo of the dish may be readily googled. Cynicism is a skill, Igna, don’t you know. As is ‘look at me’ pasting.
Groty >> “Not one of the moral preeners even bothers to address the actual moral dilemma faced by the decision makers at the time.”
That is exactly the problem, my friend. The fact that it did, even momentarily, actually pose a moral dilemma for those who spoke for our society at the time is the reason we eventually became no better than a banana republic that tortures it’s way to results. The lack of scruples and ethics will never be wished away, no matter how many sad photographs we cut and paste to show the horror of what happened on 9/11. We were tested and unfortunately our leaders showed the moral rectitude of a paper bag.
“So it is more useful to watch a man in times of peril, and in adversity to discern what kind of man he is; for then at last words of truth are drawn from the depths of his heart, and the mask is torn off, reality remains.”
― Lucretius