Friday, May 1, 2009

Hope Suspended

I think this accurately describes the quandary into which President Obama has placed himself vis-a-vis torture:

I think Obama has decided that it would be too politically costly to prosecute Bush Administration war crimes at this time. (Sadly, he may be right. Recent polls show that less than half of all Americans support legal investigations of torture and all that, and the ugly reality of such prosecutions would only make them less popular as they proceeded.) But I think Obama also realizes that investigations and prosecutions must happen eventually, both for the good of the nation and for the sake of U.S. standing in the community of nations. So he talks about moving forward and insists that he doesn't want prosecutions, but he never quite entirely rules out future legal action: Instead, he has officially left that decision it in the hands of his Attorney General (where it belongs, incidentally) - but A.G. Eric Holder will of course not pursue anything until given the go ahead by President Obama.
I actually hope this is wrong on the last point about Eric Holder -- I hope that Eric Holder has taken the initiative here, as is within his authority to do, and begun moving toward legal action, and that Obama's coyness on the subject represents nothing more than proper deference to an inchoate Department of Justice inquest.

But I suspect the description is right, and it describes an ugly picture. It is political cowardice dressed up as tough-minded, "gotta make tough choices" political calculus; it's an abdication of responsibility, and the longer the Obama administration flouts its obligations -- obligations, not discretion nor mere permission -- under the law to treat high crimes as such, the closer it edges to complicity in those crimes.

Assuming Obama's aim is as characterized above -- an avoidance of perceived "political costs" -- the legal and honorable means is to issue a pardon. This is within the president's lawful powers; it forthrightly, unambiguously, and above all, constititutionally embraces the president's avowed desire to "move forward." A pardon would clean the slate in a lawful way although, to be clear, I want the slate cleaned in the way it is done with any other serious crime -- in a court of law.

As President Obama said in his own inauguration address:
Our founding fathers faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations.

Those ideals still light the world, and we will not give them up for expedience's sake.
It gives me no pleasure to say so, but as it stands, Obama as president gives the lie to Obama as orator on this most critical matter.

4 comments:

twoblueday said...

Let me get this straight: you expect a cabinet member to advance a policy not pre-approved by the president.

Watchoo been smoking? The day of independence and/or initiative by any government department is long gone, if it ever existed.

Dale said...

Yes, twoblue. I expect a significant degree of prosecutorial independence from the office of Attorney General.

The too-political nature of the previous administration's version of the DOJ was a big part of the problem with that DOJ.

I don't expect a 100% apolitical DOJ or AG -- the president gets to appoint the AG, after all -- but I refuse to indulge cynicism on this point.

If the AG is going to be a rubber stamp for the president, I want the case made for that forthrightly. "Too cool for school" hand-waving is far from adequate.

Anonymous said...

Question for AG Holder: If a war crimes tribunal outside the U.S. having legitimate subject matter jurisdiction issued an arrest warrant under applicable international law for one or more of the alleged water-boarding conspirators would the U.S. turn that person(s) over to the foreign nation for trial? Would the U.S. be in violation of its treaty obligations if it refused?

Question for Secretary Clinton (and for the President): Has the administration put pressure on any such tribunals not to issue warrants for U.S. citizens alledgedly complicit in water-boarding, walling, etc.?

Dale said...

Anon., excellent questions.