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Published on Friday, April 17, 2009 by Salon.com

The Significance of Obama's Decision to Release the Torture Memos

by Glenn Greenwald

Numerous commentators are objecting to the idea that Barack Obama deserves credit for his release of the OLC torture memos yesterday in light of his accompanying pledge that CIA officials relying in good faith on those memos won't be prosecuted.  Chris Floyd is one who articulates that objection quite well and, as is always true for Chris, his criticisms are well worth reading.  Many others -- including Keith Olbermann, Jonathan Turley, John Dean and Bruce Fein -- yesterday lambasted Obama for his anti-prosecution stance.  Since I gave substantial credit to Obama yesterday for the release of the memos and believe even more so today that he deserves it (despite finding the anti-prosecution case as corrupted and morally bankrupt as ever), I want to return to the issue of Obama's actions.

Purely as an analytical matter, releasing the OLC memos and advocating against prosecutions are two separate acts.  It's perfectly coherent to praise one and condemn the other.  There is an unhealthy tendency to want to make categorical, absolute judgments about the persona of politicians generally and Obama especially ("I like him"/"I don't like him"; "I trust him/I don't trust him") rather than case-by-case judgments about his specific acts.  "Like" and "trust" are sentiments appropriate for one's friends and loved ones, not political leaders.  A politician who does something horrible yesterday can do something praiseworthy tomorrow.  Generally bad people can do good things (even if for ignoble reasons) and generally good people can do bad things.  That's why I care little about motives, which I think, in any event, are impossible to know.  Regardless of motives, good acts (releasing the torture memos) should be praised, and bad acts (arguing against prosecutions) should be condemned.

Beyond those generalities, I think the significance of Obama's decision to release those memos -- and the political courage it took -- shouldn't be minimized.  There is no question that many key factions in the "intelligence community" were vehemently opposed to release of those memos.  I have no doubt that reports that they waged a "war" to prevent  release of these memos were absolutely true.  The disgusting comments of former CIA Director Mike Hayden on MSNBC yesterday -- where he made clear that he simply does not believe in the right of citizens to know what their government does and that government crimes should be kept hidden-- is clearly what Obama was hearing from many powerful circles.  That twisted anti-democratic mentality is the one that predominates in our political class. 

In the United States, what Obama did yesterday is simply not done.  American Presidents do not disseminate to the world documents which narrate in vivid, elaborate detail the dirty, illegal deeds done by the CIA, especially not when the actions are very recent, were approved and ordered by the President of the United States, and the CIA is aggressively demanding that the documents remain concealed and claiming that their release will harm national security.  When is the last time a President did that?  

Other than mildly placating growing anger over his betrayals of his civil liberties commitments (which, by the way, is proof of the need to criticize Obama when he does the wrong thing), there wasn't much political gain for Obama in releasing these documents.  And he certainly knew that, by doing so, he would be subjected to an onslaught of accusations that he was helping Al Qaeda and endangering American National Security.  And that's exactly what happened, as in this cliché-filled tripe from Hayden and Michael Mukasey in today's Wall St. Journal, and this from an anonymous, cowardly "top Bush official" smearing Obama while being allowed to hide behind the Jay Bybee of journalism, Politico's Mike Allen.

But Obama knowingly infuriated the CIA, including many of his own top intelligence advisers; purposely subjected himself to widespread attacks from the Right that he was giving Al Qaeda our "playbook";  and he released to the world documents that conclusively prove how that the U.S. Government, at the highest levels, purported to legalize torture and committed blatant war crimes.  There's just no denying that those actions are praiseworthy.  I understand the argument that Obama only did what the law requires.  That is absolutely true.  We're so trained to meekly accept that our Government has the right to do whatever it wants in secret -- we accept that it's best that most things be kept from us -- that we forget that a core premise of our government is transparency; that the law permits secrecy only in the narrowest of cases; and that it's certainly not legal to suppress evidence of government criminality on the grounds that it is classified.  

Still, as a matter of political reality, Obama had to incur significant wrath from powerful factions by releasing these memos, and he did that.  That's an extremely unusual act for a politician, especially a President, and it deserves praise.  None of this mitigates any of the bad acts Obama has engaged in recently -- particularly his ongoing efforts to shield Bush crimes from judicial review by relying on extreme assertions of presidential secrecy powers -- but, standing alone, his actions yesterday are quite significant.

As is obvious from everything I've written over the past three years, I think the need to criminally prosecute those who authorized and ordered torture (as well as illegal surveillance) is absolute and non-negotiable (and, as I wrote earlier today, in the case of torture, criminal investigations are legally compelled).  A collective refusal to prosecute the grotesque war crimes that we know our Government committed is to indict all of us in those crimes, to make us complict in their commission. 

Criticisms directed at Obama and Holder for advocating immunity for CIA officials who relied in "good faith" on DOJ memos (a mere subset of the government criminals) is absolutely warranted.  But, it is not Obama's sole responsibility -- or even his decision -- to prosecute.  As a strictly legal matter, that is a decision for the Attorney General, independently, to make; it is Eric Holder who has the obligation to enforce the law, independent of anything Obama wants or says and regardless of what public opinion demands. 

But more crucially, it is also the responsibility of the citizenry to demand that this happen.  What Obama did yesterday -- whether by design or not -- provided the most potent tools yet to create the political pressure for prosecutions.  As Kevin Drum makes clear, no decent human being reading those memos would be anything other than repelled by what was in them.  Polls already found that large percentages of Americans, majorities even, favor investigations and/or prosecutions for Bush crimes.  The onus is on those who believe in the rule of law to find ways to force the government to criminally investigate whether they want to or not (this petition demanding that Holder appoint a Special Prosecutor is a very good place to begin, though it will require much more than just petitions).

The most criticism-worthy act that Obama engaged in yesterday was to affirm and perpetuate what is the single most-destructive premise in our political culture:  namely, that when high government officials get caught committing serious crimes, the responsible and constructive thing to do is demand immunity for them, while only those who are vindictive and divisive want political leaders to be held accountable for their crimes.  This is what Obama said in affirming that rotted premise:

This is a time for reflection, not retribution. . . . But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

That passage, more than anything else, is the mindset that has destroyed the rule of law in the U.S. and spawned massive criminality in our elite class.  Accountability for crimes committed by political leaders (as opposed to ordinary Americans) is scorned as "retribution" and "laying blame for the past."  Those who believe that the rule of law should be applied to the powerful as well as to ordinary citizens are demonized as the "forces that divide us."  The bottomless corruption of immunizing political elites for serious crimes is glorified in the most Orwellian terms as "a time for reflection," "moving forward," and "coming together on behalf of our common future."

Regardless of the reasons, it is clear that Obama will not single-handedly eliminate the immunity from the rule of law which the political class and other elites have arrogated unto themselves.  If anything, as his comments yesterday reflect, he is likely to affirm and defend that immunity (and, obviously, he personally benefits from its ongoing vitality).  Demanding that political leaders be subjected to the rule of law -- and finding ways to force the appointment of a Special Prosecutor -- is what citizens ought to be doing.  Either we care about the rule of law or we don't -- and if we do, we'll find the ways to demand its application to the politically powerful criminals who broke multiple laws over the last eight years.  Obama's release of those torture memos yesterday makes that choice unambiguously clear and enables the right to choice to be made.

© 2009 Salon.com

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.

Posted in obama, prosecuting bush, torture

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