Thursday, April 16, 2009

The Torture Memos & The Rule of Law

Glenn Greenwald is providing excellent coverage and commentary on the previously-secret, newly-released memos detailing the Bush administration's use of torture. President Obama did a good thing in making the memos public, but his unwillingness to pursue full, independent investigations and, where merited, criminial prosecutions, is cowardly and unacceptable. Greenwald:

The more one reads of this, the harder it is to credit Obama's statement today that "this is a time for reflection, not retribution." At least when it comes to the orders of our highest government leaders and the DOJ lawyers who authorized them, these are pure war crimes, justified in the most disgustingly clinical language and with clear intent of wrongdoing. FDL has a petition urging Eric Holder to immediately appoint a Special Prosecutor to determine if criminal proceedings should commence.

Obama did the right thing by releasing these memos, providing all the information and impetus the citizenry should need to demand investigations and prosecutions. But it is up to citizens to demand that the rule of law be applied.
There is a time and a place for reflection and, where the facts and evidence call for it, retribution. The time is now, and the means is legal due process.

Further along, Greenwald emphasizes an important point:
These memos describe grotesque war crimes -- legalized by classic banality-of-evil criminals and ordered by pure criminals -- that must be prosecuted if the rule of law is to have any meaning. But the decision of whether to prosecute is not Obama's to make; ultimately, it is Holder's and/or a Special Prosecutor's.
If we are to be bound by law, Greenwald is exactly right. Whether to follow and obey the law is not properly subject to the discretion of any person, whether president or pauper.

"Let's focus on the future" is not an acceptable criminal defense.

Preserving the rule of law has to override any political calculus. Here again is that petition urging Eric Holder to appoint a Special Prosecutor.


Larry said...

Well said, and I filled out the petition; I would love to see the ones responsible for this held accountable for bringing shame to our country in this way, and make it clear to future generations that this kind of thing is something we want to leave behind along with burning crosses. We prosecuted SOME of those people, and made SOME progress. We did not prosecute the people who authorized the Japanese internment camps, so we have Gitmo.

I don't really expect the prosecution to happen, though, because I think that we are in a small minority in valuing it for anything other than revenge (which I do not seek). It makes me sad that I don't have more faith.

twoblueday said...

You know, those banality-of-evil types should be prosectuted, but they won't be.

Here's a question: how come the banality-of-evil guys never have any trouble finding folks to do their bidding. Where are the officers and soldiers saying: screw you Mr. Suit, do it your own self.

Dale said...

Larry, Twoblue, I value it for the sake of deterrence most of all. If nothing happens to these people -- and I'm mostly concerned with the higher-level officials who authorized all of this, beginning with Bush, Cheney, Gonzales, etc., on down the chain -- then future administrations can be counted on to do the same and worse.

I find it amazing that we're having this discussion as though it is somehow Obama's decision whether crimes should be treated as crimes.

If someone gets raped in a park, or a row of houses get burned down, we don't ask the mayor, city council, or state governor whether it would be a good idea to investigate it. If there are mitigating circumstances -- maybe what happened did not, upon closer inspection, actually constitute a crime; maybe it was a crime but it was not as egregious as it first appeared -- the place to air all of that is well established: we have a thoroughly built-out legal system to assess precisely these kinds of questions. This is what investigators, judges, lawyers, and juries exist to do.

Obama continues to have a legally-defined mechanism by which to insert himself into questions of guilt or innocence: pardon power. He can pardon them all -- Bush, Cheney, Rumsfeld, CIA officials, down the line to the most lightly-involved Army private. That is among his defined legal powers as president.

Pretending the law is not the law is out of bounds. The problems caused by a president ignoring the law are NOT solved by another president ignoring the law.

Ignoring the law in favor of politics is the problem here, not the solution.

This is insanity.

Larry said...

I quite agree. This is the real issue at hand: Are those in power subject to the same laws of justice as we are?

I also value Twoblueday's statement about resistance, or lack thereof, from those who carried out the orders. It is more understandable to me that they might behave in this way given orders from above; several psychological (see: and for examples) studies have shown that we are apparently hard-wired to do what we're told under certain circumstances. Nonetheless, there has been ample room for some acts of courage from those who are following the orders of the real criminals.