Since he took office, President Obama has instituted many changes that break
with the policies of the Bush administration. The new president has ordered that
no government agency will be allowed to torture, that the U.S.
prison at Guantanamo will be shuttered, and that the CIA's secret black sites
will be closed down. But Obama is non-committal when asked whether he will seek
investigation and prosecution of Bush officials who broke the law. "My view is also that nobody's above the
law and, if there are clear instances of wrongdoing, that people should be
prosecuted just like any ordinary citizen," Obama said. "But," he added,
"generally speaking, I'm more interested in looking forward than I am in looking
backwards." Obama fears that holding Team Bush to account will risk
alienating Republicans whom he still seeks to win over.
Obama may be off the hook, at least with respect to investigating the lawyers
who advised the White House on how to torture and get away with it. The Office
of Professional Responsibility (OPR) has written a draft report that apparently
excoriates former Justice Department lawyers John Yoo and Jay Bybee, authors of
the infamous torture memos, according to Newsweek's Michael Isikoff. OPR can
report these lawyers to their state bar associations for possible discipline, or
even refer them for criminal investigation. Obama doesn't have to initiate
investigations; the OPR has already launched them, on Bush's watch.
The smoking gun that may incriminate George W. Bush, Dick Cheney, et al., is
the email traffic that passed between the lawyers and the White House. Isikoff
revealed the existence of these emails on The Rachel Maddow Show. Some maintain
that Bush officials are innocent because they relied in good faith on legal
advice from their lawyers. But if the president and vice president told the
lawyers to manipulate the law to allow them to commit torture, then that defense
won't fly.
A bipartisan report of the Senate Armed Services Committee found that "senior
officials in the United
States government solicited information on how
to use aggressive techniques, redefined the law to create the appearance of
their legality, and authorized their use against detainees."
Cheney recently admitted to authorizing waterboarding, which has long been
considered torture under U.S. law. Donald Rumsfeld,
Condoleezza Rice, George Tenet, Colin Powell, and John Ashcroft met with Cheney
in the White House basement and authorized harsh interrogation techniques,
including waterboarding, according to an ABC News report. When asked, Bush said
he knew about it and approved.
John Yoo wrote in a Wall Street
Journal oped that Bush "could even authorize waterboarding,
which he did three times in the years after 9/11."
A representative of the Justice
Department promised that OPR's report would be released sometime last November.
But Bush's attorney general Michael Mukasey objected to the draft. A final
version will be presented to Attorney General Eric Holder. The administration
will then have to decide whether to make it, and the emails, public and then how
to proceed.
When the United
States ratified the Convention Against Torture,
we promised to extradite or prosecute those who commit, or are complicit in the
commission, of torture. We have two federal criminal statutes for torture
prosecutions - the Torture Statute and the War Crimes Act (torture is considered
a war crime under U.S. law). The Torture Convention is
unequivocal: nothing, including a state of war, can be invoked as a
justification for torture.
Yoo redefined torture much more
narrowly than U.S. law provides, and counseled the
White House that it could evade prosecution under the War Crimes Act by claiming
self-defense or necessity. Yoo knew or should have known of the Torture
Convention's absolute prohibition of torture.
There is precedent for holding
lawyers criminally liable for giving legally erroneous advice that resulted in
great physical or mental harm or death. In U.S. v. Altstoetter, Nazi lawyers were
convicted of war crimes and crimes against humanity for advising Hitler on how
to "legally" disappear political suspects to special detention camps.
Almost two-thirds of respondents
to a USA Today/Gallup Poll favor investigations of the Bush team for torture and
warrantless wiretapping. Nearly four in 10 favor criminal investigations. Cong.
John Conyers has introduced legislation to establish a National Commission on
Presidential War Powers and Civil Liberties. Sen. Patrick Leahy advocates for a
Truth and Reconciliation Commission; but this is insufficient. TRC's are used
for nascent democracies in transition. By giving immunity to those who testify
before them, it would ensure that those responsible for torture, abuse and
illegal spying will never be brought to justice.
Attorney General Eric Holder
should appoint a Special Prosecutor to investigate and prosecute high Bush
officials including lawyers like John Yoo who gave them "legal" cover. Obama is
correct when he said that no one is above the law. Accountability is critical to
ensuring that our leaders never again torture and abuse people.