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Justice Dept. Gives Torture a Pass
What will we say when other governments follow our example by providing immunity from prosecution to torturers?
The Romans had an expression for it: "Nulla poena sine lege," no punishment without a law. But people sometimes forget that the opposite is also true: Without punishment for offenders, a law itself can die.
The Justice Department recently announced that, of the 101 cases involving alleged illegal treatment of post-9/11 detainees by the CIA and its contractors, 99 were being closed. The remaining two, which involved deaths in custody, would continue to be investigated.
The decision to drop virtually all these cases is based on a policy promulgated by Attorney General Eric Holder shortly after he took office. Reiterating this policy on June 30, Holder wrote that the Justice Department "would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees."
This refers to the infamous "torture memos" provided in 2002 to Alberto Gonzales while he was White House counsel by John Yoo, then Deputy Assistant Attorney General and Jay Bybee, who was Assistant Attorney General and now serves as a judge on the Court of Appeals for the Ninth Circuit. These memos, which sanctioned virtually all forms of "enhanced interrogation" (or torture, in common parlance), were withdrawn as legally deficient by Jack Goldsmith, President George W. Bush's head of the Office of Legal Counsel, and specifically disavowed later by President Barack Obama himself.
holder
Holder's recent move is completely consistent with Obama's insistence on looking "forward, not back" when it comes to accountability for torture. Prosecuting most of these cases would require seriously examining the perpetrators' faith that the Yoo memos acted as a "golden shield," as one Bush administration official called them. But the law says that this defense, "the defense of superior orders," doesn't work when the act in question is palpably or manifestly illegal.
It didn't work for Lt. William Calley when he and his platoon killed over 300 women, children, and elderly men in the village of My Lai during the Vietnam War. It didn't work for Lynndie England, the hapless army reservist convicted of torturing and abusing detainees at Abu Ghraib.
And it didn't work for most of the defendants at Nuremberg.
Why should it now work for CIA agents and others who relied "in good faith" on the torture memos? The journalist Christopher Hitchens was himself waterboarded by Special Forces soldiers to help him decide whether it was torture. His conclusion: "If waterboarding does not constitute torture, then there is no such thing as torture." Indeed, since the Spanish inquisition, waterboarding has never been considered anything other than torture, and in this century torture is absolutely forbidden under both domestic and international law.
And waterboarding is only one of several torture techniques used by U.S. personnel in the years following 9/11, including prolonged sleep deprivation, shackling in stress positions, and exposure to extreme cold and heat. All of these have been largely or completely abandoned under the Obama administration. But what lesson are we to draw from the fact that no prosecutions have been started, nor are likely to start, against those who authorized and practiced them? What will we say when other governments follow our example by providing immunity from prosecution to torturers on the basis of phony, made-to-order legal memos?
June 30, 2011 will go down as a dark day in the annals of the struggle against torture.
12 Comments so far
Show AllThis is President Obama's doing. He is the same President who has directed the FBI to go after those whistleblowers who reported torture by US officials while directing the FBI to NOT investigate the torturers.
To quote Sarah: "How's that hopey changey thing working out for ya?"
ERIC HOLDER SUCKS AS ATTORNEY GENERAL! HE MAKES ALBERTO GONZALES LOOK COMPETENT!!!! No free pass for TORTURERS. HANG THE FUCKERS. HANG EVERY GODDAMN ONE OF THE THEM. START WITH BUSH AND CHENEY.
"Reiterating this policy on June 30, Holder wrote that the Justice Department "would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.""
Of course, if we used Obama and Holder's logic in 1945, there would have been no Nuremberg trials. I guess as long as our soldiers behave like good German soldiers, they need not worry about responsibility for what they do.
I seem to recall that when our German prisoners used that logic, we rejected it and hanged them.
yes, that's true. But the Germans had just lost a war and were occupied. It seems that the other claim made by those Germans we hanged was correct. Nuremberg was nothing more than victor's justice.
Exactly. Asking for the US to prosecute their own war criminals is as preposterous as believing that a reigning Hitler might have prosecuted his own (or, as you say, that we would have prosecuted our own then). The situation we find ourselves in is in some ways even more chilling than the Nazi regime in one respect: there’s absolutely nobody to take the US military down. The US will just continue to terrorize small countries over and over again, as we have been doing since Korea. Until what? Those who believe there could be some justice for those who designed the torture procedures, or the whole fucking mess, can’t quite wrap their heads around just how evil those in power are in the US.
I’m not convinced the US has stopped torturing individuals, but maybe starvation and disease is enough torture for happening to exist in a land the US wants to plunder.
The other day I ran into a neighborhood guy who’s just come home from a tour in Afghanistan. F, I’ll call him, is 44, joined the Coast Guard in his twenties and is holding out for a pension, so he’s been over in Iraq and Afghanistan before and will be redeployed in four years. I’m not going to defend his career choice, but his reasons include two kids to support and a rather fatalistic view of the world. He’s intelligent and interesting, as most veterans I’ve met are, and I have trouble thinking of him as an evil person. He grew up in Guatemala and Nicaragua, and has long been convinced that his father was running drugs as a CIA agent, for some good reasons, so I guess that would color one’s view of what the world’s all about.
I’d talked to a friend of F’s a couple of days before, who’d said F seemed changed. I saw what he meant when I saw F. There was something about his expression: more mature, more humane, more strained and yet vulnerable, I don’t know. I asked him the usual questions: what did you do over there? What’s going on, what’s the plan? The plan, he says—all the veterans from Afghanistan say so in my experience—is that we’re not going anywhere anytime soon. There’s lots of minerals and lots of poppies. He said the military is in a holding pattern. His job was to drive a 26-wheel vehicle from camp to camp moving supplies. He remarked at how many non-military personnel, many from Indonesia, are there doing the cooking, cleaning, and grunt work. A few people he’d known were killed by IEDs.
But what seemed to move him more was the absolute poverty, which of course we’ve cast them into. “Do you know what making a living means to an Afghan?” he asked me, getting animated. “It’s finding your next meal. I grew up where there was poverty, but those were tropical regions. There was food everywhere. This place is just sand and rock.”
The vision is hard to fathom, and I could see it was hard for him to fathom too. Here are all these people starving in these desolated villages, while Amerikans are driving through with these monster vehicles that must get 1/10th of a mile to a gallon or so, going from camp to camp, where military people are just hanging, waiting for something they don’t know what, while a bunch of Indonesians run around doing the grunt work and an occasional IED explodes, which the insane military tells the insane press is proof that they must press on in this enterprise, and the public says, I guess. What a dystopian landscape the military has engineered. Even with the poppies and precious metals and theories of geopolitical strategy, it’s hard to believe.
"I’m not going to defend his career choice, but his reasons include two kids to support and a rather fatalistic view of the world."
Simple solution. Take his kids to Afghanistan where they can be murdered by a rocket fired from a drone. No more kids to support. Hurray!! Early retirement!! Yep, can't help it, gotta kill your kids so I can feed mine. Just business you understand. Don't take it personally.
Of course my comment is not directed at you, but rather, at "F".
Don't worry - Obama will save us.
Audacity of Hope. Change You Can Believe In. Yes We Can.
"Reiterating this policy on June 30th, [Attorney General] Holder wrote that the Justice Department 'would not prosecute anyone who acted in good faith and within the scope of legal guidance provided by the Office of Legal Counsel regarding the interrogation of detainees.'"
Good faith reliance upon the advice of legal counsel is an extremely narrow but well-recognized defense to a criminal indictment. A defense. It is an affirmative defense. It is a defense that a criminal defendant can raise and try to prove in a courtroom at trial which, if and only if it is believed by a jury, may create a reasonable doubt and lead to an acquittal. It is a defense.
Therefore give Dick Cheney, John Yoo, Donald Rumsfeld, Alberto Gonzales, George Tenet, Jay Bybee, General Miller, David Addington, and the other top echelon decision makers who embraced waterboarding and other forms of torture as official US government policy a day in court. Give them each a fair, clean jury trial. Let them, like a Greek chorus chanting in unison if they so wish, raise their affirmative defense - the defense of good faith reliance upon advice within the scope of what the Office of Legal Counsel (also acting in good faith) had led them to believe was actually the law of the land.
For all the system's flaws, a jury is still the world's greatest bullshit detecting device. Cheney, Rumsfeld, Tenet, and Miller only did what they did because Yoo, Gonzales, Addington, and Bybee assured them it was legal. Run that one up the flag pole and see if anybody salutes. Oh sure. The only reason I tortured anybody was because my lawyer signed off and assured me it was okay. Bullshit.
Eric Holder's stated position - the Justice Department shall not prosecute anybody who has a potential affirmative defense - makes a mockery of the adversary process that lies at the heart of the Anglo-American criminal justice system. Just because I'm willing to raise my hand and swear on my momma's grave that, trust me, in good faith I only shot the guy in self defense does not, in any jurisdiction, preclude the prosecutor from charging me with murder in the first place.
Defenses have to be raised in court and proved in court. Defenses are not restrictions upon the prosecutor's charging discretion to seek a grand jury indictment, so that the defense can be raised. That's how the system works.
If Eric Holder doesn't grasp that fundamental essence of the prosecutor's role, then he should be replaced immediately as head of the US Department of Justice with someone who will follow the law of the land, including the federal statutes criminalizing torture. Make the case for law enforcement, then listen to the defense of good faith, and let the chips fall where they may.
Bill from Saginaw
Bill: I'm not sure if it's evidence in support of Chris Hedges' brutally incisive indictment against "the liberal class," or not; but there is a pattern here. The public sees someone who represents a minority group, in this case Eric Holder, but it also goes to the president, and the latest supreme court justice... ALL of them are place-holders, loyal to the status quo and the powerbrokers who LENT them these positions on grounds they'd obey, i.e. do what they were told NOT to rock the boat. The appearance of a minority candidate lends HOPE that these persons would SURELY know what it's like to grow up (and strive to exist) on society's outside. However, in the manner of Condi Rice, Colin Powell, and John Yoo... they prove extremely loyal henchmen, instead.
Apart from your appearing naive as to Eric Holder's M.O. (since he's done NOTHING to alter it in 2+ years of office), the rest of your post is excellent.
Elizabeth H: Thank you for relating the interesting anecdotal information. The world's richest elites seem to enjoy turning our planet into some kind of tinderbox where they can set groups of starving people upon one another. Certainly these types of exploits, unimpeded, provide a rationale for atheism.
"All of these have been largely or completely abandoned under the Obama administration."
Should I ask Mr. Weiss for proof or should I just say, "Bullshit"?
The AP reported that General Petraeus told the Senate Intelligence Committee that, while "humane" interrogation methods were usually sufficient, there were times when one just had to go beyond them to get information. In spite of this, the committee recommended him to the full Senate and the Senate overwhelming approved his appointment as head of the CIA. Disgusting.
The International Criminal Court will arrest and try war criminals/torturers when their own countries refuse to do so. I believe that they will open an investigation at the request of any country, organization or individual person.