WASHINGTON - Judging by the rare
leaks from President-elect Barack Obama's transition team,
investigations and prosecutions of high-level George W. Bush
administration officials for torture and war crimes are a distant
prospect. But likely or not, that won't stop pundits from debating the
question of whether those officials responsible should be held
Irrespective of whether
Vice President Dick Cheney, former Secretary of Defence Donald Rumsfeld
or others are dragged before juries, one glaring change seems
absolutely certain: Obama stands unequivocally against torture, and the
practice is likely to come to an end under his administration.
though I've been disappointed in other presidents in the past, I do
listen and I do believe Obama when he says we won't torture. I think
that's crucial,' said Michael Ratner, the president of the Centre for
But foreswearing controversial and harsh
interrogation methods may not be enough to permanently reestablish the
moral high ground that the Obama administration has promised to bring
back to the U.S.'s interactions with the rest of the world.
Obama doesn't take on torture that occurred, as opposed to simply
discontinuing the practice, the door may be left open for future
administrations to resurrect the harshest of interrogation techniques,
said Ratner at a recent forum at Georgetown University Law School.
Obama really wants to make sure we don't torture, he has to launch a
criminal investigation,' said Ratner, the author of 'The Trial of
Donald Rumsfeld: A Prosecution in Book.'
He said that the
targets of such an investigation would be the easily identifiable 'key
players' and 'principals' in the Bush administration who hatched plans
to allow and legally justify harsh interrogation methods that critics
allege are torture, including the controversial 'waterboarding'
simulated drowning technique.
Those pursued, said Ratner, would
include high-ranking administration officials such as Cheney, Rumsfeld,
and former Central Intelligence Agency chief George Tenet, as well as
the legal team that drummed up what is now regarded as a sloppy legal
justification for torture.
Key Bush administration lawyers
involved in providing legal cover to harsh practices, including the
roundly criticised 'torture memo' from the Justice Department's Office
of Legal Counsel (OLC), include former attorney general and earlier
White House counsel Alberto Gonzales; Cheney's chief of staff and
former legal counsel to the vice president's office David Addington;
and the University of California, Berkeley law professor and former OLC
lawyer John Yoo.
If the characters behind the questionable
techniques are not held accountable for violating U.S. and
international laws, said Ratner, presidents after Obama may simply say,
'well, in the name of national security I can just redo what Obama just
put in place. I can go torture again.'
Ratner also spoke to the
concern that, from the view of the rest of the world, 'to not do an
investigation and prosecution gives the impression of impunity.'
But opposing Ratner on the dais, Stewart Taylor, Jr. argued that an investigation and prosecution were not appropriate.
people who are called 'war criminals by [Ratner] and others do not
think they acted with impunity,' said Taylor, a Brookings Institution
fellow and frequent contributor to Newsweek and the National Journal.
the Jul. 21 edition of Newsweek, Taylor called for Bush to preemptively
pardon any administration official who could be held to account for
torture or war crimes. Taylor's rationale was that without fear of
prosecution, a full and true account of what he called 'dark deeds'
could never come to light.
Furthermore, at the Georgetown Law event Taylor said investigation and eventual prosecution would 'tear the country apart'.
may be the thinking of Obama, who, in addition to hints he wouldn't
investigate Bush administration malfeasance, declared his intention to
govern as a political reconciliation president in his election victory
In Grant Park in Chicago on Nov. 4, Obama rehashed a
quote from slain civil rights leader Martin Luther King, Jr., but
instead of rhetorically bending the 'arc of history' towards 'justice',
as King did, Obama called for it to be bent 'toward the hope of a
But Ratner said that the country was already
divided, and that divide is exactly what a future administration could
politically exploit to reinstate torture. He said that Obama must close
the divide and doing so is not rehashing the past.
'You're making sure that in the future, we don't torture again,' Ratner said. 'This is not looking backwards.'
potential problem with investigation and prosecution, says Taylor, is
that the Bush administration officials ostensibly had sought to find
out whether the methods they were about to approve were justified, and,
indeed, they were told they were in the legal clear.
no that high ranking officials acted with criminal intent,' he said.
'They were relying in good faith on the advice of legal counsel.'
said that since the legal advice originated from the Department of
Justice, it would be wrong for the same Justice Department to 'turn
around' and prosecute people for actions that its previous incarnation
had explicitly told were legal.
But Taylor's point misses two
issues: that the crimes were allegedly given a legal green light
because of collusion with the White House, and that Ratner proposes to
investigate those selfsame Justice officials who were involved in
Despite referring to John Yoo as a 'gonzo
executive imperialist', Taylor said that 'those officials, like them or
not, were honourably motivated' because they were 'desperately afraid'
of another terrorist attack.
Ratner insists that the officials,
part of a 'group, cabal or conspiracy', may be culpable because they
were 'aiders and abetters'.
'[OLC] was not giving independent
counsel,' insisted Ratner. 'They were shaping memos to fit a policy
that had already been determined.'
And while Taylor was quick to
point out that many U.S. administrations had been accused of war crimes
by various sources, Ratner replied that it was the first time that any
administration had actually 'assaulted the prohibition on torture'.
could be one reason why, if the U.S. does not take care of its own
house, Bush administration officials will likely be pursued on charges
in Europe and elsewhere.
In international courts, said Ratner,
those officials will not be able to hide behind the legal shields of
internal government memos or executive decrees.
'They have no defence in international law,' he said. 'They're finished.'