A Closer Look at Obama's 'New' Position on Torture Prosecutions

The big news today is that the Senate Armed Services Committee has
released a declassified report on the treatment of detainees in US
custody. (Download the full report [PDF])

The report was completed in November 2008, but has been held from
the public by the Department of Defense until now. In releasing it, the
committee chair, Sen. Carl Levin (D-MI), said
"the report represents a condemnation of both the Bush administration's
interrogation policies and of senior administration officials who
attempted to shift the blame for abuse - such as that seen at Abu
Ghraib, Guantanamo Bay, and Afghanistan - to low ranking soldiers.
Claims, such as that made by former Deputy Secretary of Defense Paul
Wolfowitz that detainee abuses could be chalked up to the unauthorized
acts of a 'few bad apples,' were simply false:"

The truth is that, early on, it was senior civilian leaders who set
the tone. On September 16, 2001, Vice President Dick Cheney suggested
that the United States turn to the "dark side" in our response to 9/11.
Not long after that, after White House Counsel Alberto Gonzales called
parts of the Geneva Conventions "quaint," President Bush determined
that provisions of the Geneva Conventions did not apply to certain
detainees. Other senior officials followed the President and Vice
President's lead, authorizing policies that included harsh and abusive
interrogation techniques.

The record established by the Committee's investigation shows that
senior officials sought out information on, were aware of training in,
and authorized the use of abusive interrogation techniques. Those
senior officials bear significant responsibility for creating the legal
and operational framework for the abuses.

This development comes as the movement to try to hold senior Bush
administration officials, their torturers and their lawyers accountable
for their crimes is gaining new momentum. President Obama's comments
on Tuesday, made during a meeting with Jordan's King Abdullah, has been
reported in the press as Obama keeping the door open to prosecuting
former Bush administration officials. What he actually indicated is
that he may take the position that it "is going to be more of a
decision for the Attorney General within the parameters of various
laws" and is open to Congress forming a bipartisan commission to
conduct an inquiry. The statement on Attorney General Eric Holder is
perhaps a small step forward, but the "commission" idea is very
problematic (more on this in a moment). The fact is that the president
already did incredible damage to the accountability movement, and
possibly acted unconstitutionally and in contravention of international
law, by publicly-and repeatedly-stating that he will not allow
prosecution of the CIA torturers because they were "in good faith"
following evil orders. One of the most recent comments by Obama about this was made at CIA headquarters:

"Don't be discouraged by what's happened in the last few weeks," he
told employees. "Don't be discouraged that we have to acknowledge
potentially we've made some mistakes. That's how we learn. But the fact
that we are willing to acknowledge them and then move forward, that is
precisely why I am proud to be president of the United States and
that's why you should be proud to be members of the C.I.A."

Legal experts have pointed out that the decision not to prosecute
the torturers was not Obama's to make. "The attorney general is
entrusted with upholding the law where crimes are committed, not making
a political decision as to whether the president believes it is
expedient to do so," according to the Center for Constitutional Rights.

On Wednesday, The New York Times revealed
that Obama's Director of national Intelligence, Dennis Blair "said in
an internal memo last week that the now-banned interrogation methods
had produced valuable information, contrary to the White House view
that they had not been effective:"

"High-value information came from interrogations in which those
methods were used and provided a deeper understanding of the Al Qaeda
organization that was attacking this country," Dennis C Blair, the
intelligence director, wrote to his staff last Thursday as the
previously secret memos were released.

A condensed version of the Blair memo was distributed to news
organizations that day without that sentence. The original memo was
provided to The New York Times on Tuesday by a critic of Mr. Obama's
policy. Wendy Morigi, a spokeswoman for Mr. Blair, said Tuesday that
the sentence had been dropped in a routine process of shortening an
internal memo into a statement for the news media.

While much media attention is being paid to the idea that Obama is
open to prosecutions, that is not exactly what has been said. Remember,
Obama and Holder have both been pretty vocal in staking out a position
in opposition to criminal action against Bush administration officials.
It is also important to remember the words of Obama's chief of Staff Sunday on ABC's "This Week with George Stephanopoulos:"

[Obama] believes that people in good faith were operating with the guidance they were provided. They shouldn't be prosecuted.

STEPHANOPOULOS: What about those who devised policy?

EMANUEL: Yes, but those who devised policy, he believes that they
were - should not be prosecuted either, and that's not the place that
we go - as he said in that letter, and I would really recommend people
look at the full statement - not the letter, the statement - in that
second paragraph, "this is not a time for retribution." It's time for
reflection. It's not a time to use our energy and our time in looking
back and any sense of anger and retribution.

Senator Dianne Feinstein (D-CA), chair of the Intelligence
Committee, has suggested that her committee should review these matters
for 6-8 months before any sort of action is contemplated. While some
have interpreted this as Feinstein asking Obama to keep prosecutions
"on the table," another possible way of viewing it is as an appeal to
Obama, in the face of mounting public pressure, not to change his
publicly stated position against prosecution. Here is what she wrote:

I am writing to respectfully request that comments regarding holding
individuals accountable for detention and interrogation related
activities be held in reserve until the Senate Select Committee on
Intelligence is able to complete its review of the conditions and
interrogations of certain high value detainees.

Obama on Tuesday seemed to indicate
that he was open to some sort of bipartisan commission to look into the
torture memos "if and when there needs to be a further accounting."
Obama called that a "more sensible approach to take," saying, "I'm not
suggesting that that should be done, but I'm saying, if you've got a
choice, I think it's very important for the American people to feel as
if this is not being dealt with to provide one side or another
political advantage but rather is being done in order to learn some
lessons so that we move forward in an effective way." This is a very
problematic position if what the president is suggesting is to form a
commission instead of allowing a criminal investigation.

Recent experience with such commissions, most prominently the 9-11
commission, shows that these can easily turn into whitewash operations.
If they wheel out tired old Lee Hamilton, you know this ain't going
anywhere. What is actually needed is an Independent Prosecutor-someone
like a Patrick Fitzgerald-to treat this as the major league, far
reaching crime investigation that it should be. This prosecutor should
have full subpoena power and complete access to the torture papers,
including additional Bush era documents which may need to be
declassified. (Afterall, Dick Cheney now apparently supports this).

"Mr. Cheney is correct to propose that the public should have more
information about the CIA's torture program, but disclosure should be
comprehensive," said Jameel Jaffer, Director of the ACLU National
Security Project. "The new administration should begin by declassifying
documents that would shed light on the role of Mr. Cheney and other
senior Bush administration officials in authorizing that program."

Rep. Jerrold Nadler has announced he intends to hold hearings on
this issue. "If we do not follow through on investigating those who
authorized and committed torture - and thereby broke American law -
then we will have no standing on which to protest the future torture of
American soldiers at the hands of our enemies," says Nadler. "I am
continuing my conversations with Attorney General Holder on this
critical issue, and intend to hold Congressional oversight hearings."

Whether or not the Obama White House will allow the appointment of a
special prosecutor may boil down to public pressure and protest.
Importantly, there are people at the Justice Department who support
this as well. As Michael Isikoff and Evan Thomas reported in Newsweek:

Senior Justice Department lawyers and other advisers, who declined
to be identified discussing a sensitive subject, say Attorney General
Eric Holder Jr. has discussed naming a senior prosecutor or outside
counsel to review whether CIA interrogators exceeded legal
boundaries-and whether Bush administration officials broke the law by
giving the CIA permission to torture in the first place. Some Justice
officials are deeply troubled by reports of detainee treatment and
believe they may suggest criminal misconduct, these sources say.

It would be a huge mistake and a travesty to allow a commission,
which, in the case of a "Truth and Reconciliation" commission, could
potentially offer immunity to criminals, to replace the actual criminal
investigation that is needed. There would only be one reason to do
this: quid pro quo politics. In its statement calling for a special prosecutor, the Center for Constitutional Rights asserted:

There is clearly movement on this issue-the public outcry has been
too great for the president to ignore. With two thirds of Americans
supporting investigations and 40 percent supporting criminal
prosecutions, he can no longer repeat his evasions about looking
forward not backward. The sickening details in the torture memos
brought it home: we have the evidence, and to sweep it under the carpet
would be to create a system where every administration can commit
whatever crimes it chooses with complete security in the knowledge that
they will never be held to account.

It is certainly a welcome development that this week MoveOn, which
has been silent on Obama's expansion of the war in Afghanistan and
praises his Iraq plan, has joined the scores of groups that have long
demanded an independent prosecutor. Better late than never. Calls for a
special prosecutor did not spring up because of the recently released
torture memos. In June 2008, more than 50 Democratic Congress members,
led by Representatives Jan Shakowsky and John Conyers, asked Attorney
General Mukasey to appoint such a prosecutor. Activists are now calling on Congressmembers to resend their letters to Holder.

A joint statement signed this week by a wide variety of groups,
including the Center for Constitutional Rights, the National Lawyers
Guild, Iraq Veterans Against the War, Veteran Intelligence
Professionals for Sanity, progressive Democrats of America and others says:

We urge Attorney General Eric Holder to appoint a
non-partisan independent Special Counsel to immediately commence a
prosecutorial investigation into the most serious alleged crimes of
former President George W. Bush, former Vice President Richard B.
Cheney, the attorneys formerly employed by the Department of Justice
whose memos sought to justify torture, and other former top officials
of the Bush Administration.

Our laws, and treaties that under
Article VI of our Constitution are the supreme law of the land, require
the prosecution of crimes that strong evidence suggests these
individuals have committed. Both the former president and the former
vice president have confessed to authorizing a torture procedure that
is illegal under our law and treaty obligations. The former president
has confessed to violating the Foreign Intelligence Surveillance Act.

We
see no need for these prosecutions to be extraordinarily lengthy or
costly, and no need to wait for the recommendations of a panel or
"truth" commission when substantial evidence of the crimes is already
in the public domain. We believe the most effective investigation can
be conducted by a prosecutor, and we believe such an investigation
should begin immediately.

On Thursday, Attorney General Eric Holder will testify in front of a
Congressional subcommittee. That's when these groups intend to deliver
their petition to Holder calling for a special prosecutor.

For more information, or to sign one of several petitions being circulated, go here.