On the Necessity of Justice: Obama's Decision to Not Prosecute Torturers

"Let's not argue and bicker about who tortured who..."
-Monty Python and the Holy Grail, paraphrased

You've probably heard that President Obama has decided not to proceed with prosecutions of CIA officials in the Bush administration who were responsible for torture. On the principle that "this is a time for reflection, not retribution." On the principle that, "at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."

This is the first time in the Obama administration that the President has made me deeply, blazingly angry. (Yes -- way, way angrier than the Rick Warren debacle. That was essentially a symbolic act, and while I loathed its symbolism, I was willing to let it slide if Obama made it up with practical action.)

This is much worse. This is deeply serious. I need to say something about it.

* * *

I understand Obama's desire to move forward; to look to the future and not the past; to unite the country and not divide it against itself.

But sometimes, in order to move forward, people need to know that justice has been done. In order to let go of the past, people need to know that the evils and injustices of that past have been addressed.

I understand that Obama is a practical man. Fine. From a purely practical standpoint: Why should other countries trust this administration to keep treaties and abide by international law, if it's going to let something as egregious and purely evil as torture just slide? For that matter, why should the citizens of this country trust this administration to administer justice fairly, when we see that government officials can and do get away with crimes of this enormity?

And perhaps even more importantly: Why should current and future military/ intelligence people not torture, not give the order to torture, not come up with grotesquely laughable legal justifications for torture... if they know that if they do and if they get caught, nothing will happen? From a purely pragmatic standpoint, that is the whole freaking idea of accountability, the whole freaking idea of justice -- to show people that if they do something terrible, there will be consequences. So they, you know, are less likely to do it. How much more pragmatic can you get?

And from a moral standpoint?

From a moral standpoint, this is completely indefensible. From a moral standpoint, this makes me want to throw up. From a moral standpoint, the idea that you should be able to do the vile, gruesome, flat-out evil things to other human beings that these people did -- do I really need to spell them out again? -- and then walk away scot-free, with no consequences but the torments of your own conscience... that is intolerable.

Nobody else gets a free pass from the concept of justice and the hand of the law, on the principle that we should just move forward and not spend our time and energy on retribution. If I get caught robbing a liquor store, no prosecutor is going to let me walk on the principle that we need to not get caught up in a divisive blame game and should instead just look to the future.

And when representatives of the democratically elected government of the most powerful country in the world commit one of the most vile, despicable, nauseating crimes imaginable -- and do it in a conscious, orchestrated way -- that's a whole lot more frakking serious than me holding up a liquor store. The fact that these crimes were politically motivated and done on behalf of the government doesn't make it less important that we prosecute. It makes it more important. Much, much, much more important.

There's another word for what Obama is so dismissively calling "retribution" or "laying blame." That word is "justice."

And seeing justice done is not living in the past. It is moving forward. Emotionally, pragmatically, psychologically, morally -- on every human level from the basest to the finest, seeing justice done is an absolutely essential component of being able to let go of past harms and move on.

We're not talking about a quibble over whose turn it was to do the dishes, or a family quarrel over hosting Christmas dinner that's still raging twenty years later. We're talking about war crimes, some of the worst kind of war crimes imaginable -- and we're talking about war crimes that happened as recently as last year, and that went on for years. I do not want my country's official position on that -- the thing we are saying to the world and to ourselves about that -- to be, "That was months ago. Why do you keep bringing up old stuff?"

I'm still not sorry I voted for Obama. I still ascribe to the harm reduction model of politics, and as angry as I am at Obama right now, I still think he's a thousand times better than McCain would have been as President. (And it's not like I think McCain would have been a mighty sword of justice against torturers in the Bush administration.)

But this is a big frakking deal. This isn't just your basic "Well, I knew he was going to do some things that would tick me off, and he is the entire country's President and not just mine, and he can't make everybody happy" disagreement. This is a fundamental disagreement over a fundamental issue of political morality. And I hereby say that I do not accept it. I mostly like Obama, and have mostly been willing to cut him a fair amount of slack. But I hereby say that, on this issue, President Obama does not speak for me, and I reject his ideas with every fiber of my being.

I've written a fair amount about why I believe in the basic idea of government. As recently as two days ago, in fact. And one of the central themes in these writings has been that, in a democratic government, it is not only the right but the responsibility of citizens to speak out when their elected representatives represent us badly. When elected representatives make indefensible decisions that are likely to have appalling consequences, it is the right and the responsibility of citizens to say No.

So this is me, saying: No.

Obama is wrong. We need to bring torturers and war criminals to justice. And we need to start doing it now.

Comments

[Infophile]

You know, this is exactly the kind of talk that would get charges of treason thrown at you by a certain contingent. The very same contingent that is now hosting the teabagging parties and talking about seceding. Don't you just love cognitive dissonance?

To be honest, I just want to figure out why Obama has taken this stance. It seems on the surface that it may be just so he doesn't lose political capital with Republicans, but I don't think that's it. Honestly, he doesn't have any capital with any of them right now, thanks to the more-divisive-than-ever politics they've been engaging in.

Instead, I think it's more fear that he might set a precedent, and when the balance of power shifts over again, they'll come after him for retribution. Honestly, would you put it past them? Of course, this is why, if Bush et al. are to be charged for their crimes, it has to be done in as non-partisan a manner as possible, and Obama has to stay the hell out of it. The current situation with Spain is the perfect excuse for the administration to set something up - it will defuse the Global Justice question and restore faith in the USA.

Of course, I don't really see that happening. More realistically, I hope Spain ends up convicting Rumsfeld et al. and then demanding extradition. They could probably even get support in the UN for that. If Obama is just worried about retribution for him convicting past officials, this situation would be completely outside that. However, if he were to deny extradition... Well, let's just say at some point in protecting torturers from justice, he's going to share in their guilt.

[Lorenzo Braschi]

Spain is not up to convicting Rumsfeld et al. at all (if you pardon the pun). The accused people are the people who made Guantánamo juridically possible: Alberto Gonzales, David Addington, William J Haynes, Douglas Feith, Jay S. Bybee, and John Yoo.

I don't think we are going to see these people extradited to Spain, at least not anytime soon. We have some judicial problems here in Spain now: the judicial system is quite slow here, and there are several big trials going on at this time - we have our own fishes to fry. Not to mention that the US doesn't allow their citizens to be judged for war crimes in foreign countries, not to mention if they're high-ranking politicians.

Back to the topic, I also find Obama's decision abhorrent. Sadly, I cannot say I'm surprised. The US have a bad history of letting go high-ranking officials with whatever they got. The US should take lessons from Perú, in which former president Alberto Fujimori was sentenced to 20 years of prison for sending death squads against rivals and journalists.

[Felix]

I'd say that the reason he doesn't want to prosecute CIA agents is because moral is low already, and they've got low recruitment. Which I think he should at least lynch one or two to make an example for the rest to follow.

[Nick]

Two words:

Special Prosecutor.

It's the only way that the Judicial Process can proceed without being tainted by politics. Unfortunately, even that process has been tainted by the wholly political Lewinsky affair. Either that or some sort of Warren commission style Judicial/Legislative counsel. The problem with that is that Justice Roberts was appointed by the very person who would be the focus of the investigation. Of course I for one would not be the least bit upset if one day Former President Bush's plane had to make an "emergency landing" in Toronto where Canadian officials with arrest warrants just happened to be waiting for him.

[Deen]

Yes, this is highly disappointing. Basically, Obama is saying that he won't have the CIA agents prosecuted, because they were merely following orders. That's a really bad excuse. And it sets a really bad precedent as well. Obama is making it clear that if you just follow orders, no matter how horrible the things are that you have to do, your ass will be safe. This is making it all the more difficult to refuse an unjust order, and it's not like that isn't difficult enough already.

On the other hand, Obama's administration is also not going after the people who gave the orders. Even if we would agree that the agents are not to blame, because they were just following orders, then the logical conclusion should be that the blame rests squarely on the shoulders of those giving the orders. So when will we see those people brought to justice?

[Mark Tomczak]

Not to Godwin the thread prematurely, but the event that springs to my mind is the Nuremburg trials. We are looking here at a situation where the administration's lawyers had basically advised the administration that these toruture actions were legal. Once that blanket is thrown, my understanding of precedent is that responsibility moves up the chain of command. The Obama administration isn't planning to go after CIA operatives for acting in accordance with their understanding of the law for the same reason that the Allies didn't hold the bulk of Germany's army accountable for the Holocaust. The Obama administration is, however, investigating what breaches of legal responsibility were executed by the lawyers in the Bush administration.

It's terrible, but it goes with precedent---assuming that we consider CIA operatives to be equivalent to military foot-soldiers. That may be an association with unforseen consequences.

[gruntled atheist]

I share the outrage but thisis not over yet.

[Infophile]

Ah, sorry, my mistake there. Should have looked up who they were prosecuting instead of going from memory.

[G Felis]

AND... this is intimately connected to Obama's other horrendous failing as a President. The Obama administration has maintained every Bush administration legal position with regard to habeas corpus rights and other Bushite legal legerdemain associated with "enemy combatants" (and in a few cases taken an even more ridiculous position extending executive privelege) - in direct violation of everything Obama ever said about the rule of law and the Constitution before he was elected. Some people have accused Obama of simply maintaining those elements of Bush's expansion of executive privilege he sees as useful. I don't think that's true, but I think the real reason may be worse in some ways. The only reason I can see for Obama (and his appointee, AG Eric Holder) to continue these positions is to avoid ugly courtroom revelations about morally and legally bankrupt Bush administration policies regarding locking up any and everyone they felt like in Iraq and Afghanistan without any evidence of any crimes whatsoever. Such revelations would vastly increase the pressure for prosecutions against Bush administration officials for their massively corrupt activities.

Essentially, for Barack Obama to avoid initiating prosecution for the many federal and international crimes of Bush administration officials - or, as his official rhetoric says, in order "to put the past behind us and move forward" - he must also continue the unconstitutional legal maneuvering the Bushies used to commit and cover up their crimes. One immoral position is forcing him to adopt other immoral and unconstitutional positions. It's not just an epic moral fail, it's a cascading epic moral fail.

[Baconsbud]

I ask myself this question when a topic like this comes up. How would we as a nation have reacted to other nations doing the same thing?
Of course I never count Israel in when I ask this question. Until people are held accountable for the evils of the Bush administration, this issue will continue to create problems for the Obama administration.

[Julanar]

Do you ever use your columns as the basis of letters to elected officials? You should do that with this one because you make some excellent points. I know that writing to politicians has often been ridiculed as useless, but how else are our opinions going to reach the people who might have a say in the matter?

[nolrai]

Here, Here!

[Ebonmuse]

My read on why Obama has chosen not to prosecute is that he wants to accomplish his own domestic agenda, and he thinks that starting prosecutions of Bush-era appointees will cause a political firestorm that will suck up all the oxygen and stop him from being able to accomplish anything else. As G Felis said, this means he's inescapably driven to use Bush's own tactics to prevent Bush's misdeeds from becoming the target of criminal investigation.

Assuming this is indeed his reasoning, I can almost see the point of it, but I still think it's a terrible idea. Are we to conclude that the rule of law should only be enforced when it's easy? Justice should only be dispensed when politically convenient? Torture is a crime. The release of these memos is a big step forward, but it's not good enough. We need to prosecute the people who authorized these atrocities if we're ever going to restore the world's faith in America as a nation of laws.

[sav]

At the risk of sounding like an optimist (which I'm generally not) and a sucker (which I really don't think I am), I'd like to second Julanar's call to get in touch with your reps. I have all my reps on speed dial on my cell phone. I call and write them often, especially when I feel like it doesn't do a lick of good. It makes me feel better to vent (which I do in the nicest way possible), and to make my reps know that I'm paying attention. When their offices get flooded with calls and letters, they listen and react.

About the post: I totally agree. To me, this is a mockery of the entire rule of law, of civilization itself. Why have rules if we don't make everyone adhere to them? Maybe Obama has some grander plan that is supersecret. But why does it need to be? Governing can be a lot more straightforward if politics--the drama--would just get out of the way.

Equality in administering the law may not be reality and may seem like political naivete, but like you said, Greta, what the fuck is the point otherwise? If we all don't buy into the democratic ideal and work toward it, then why even have the concept of "rights"? Who the hell am I to say I have rights if I don't extend the same to others?

But it's a game, and the people in Washington play it like a game. So we need to remind them that they're playing with real peoples' lives.

[chanson]

I completely agree, and I second G. Felis's point about maintaining (and extending) Bush's unconstitutional actions. This is not a small matter!

I heartily supported Obama in the election, and it sure as hell wasn't in hopes of seeing this happen. Bush should have been impeached, to put a stop to his illegal actions to prevent them from getting passed down as precedent.

Even if getting a conviction from Spain isn't certain, it's possible. Stranger things have happened.

[Eclectic]

G Felis: agreed. The fact that Bush flouted the constitution does not make it proper for Obama to do so, or condone others doing so.

I was willing to give him a couple of months to work through the disaster at the Justice Department, and I would expect policy to hold position until clear direction was received from above on such a politically sensitive issue. So I didn't worry for the first couple of months.

But I think three months is sufficient patience on some of the terrible (old sense!) legal theories of would-be emperor Bush, and it's been more than that.

There's a rather important principle called equality before the law, and it's more, not less important when someone is protected by position and secrecy.

Secret operations need much tighter adherence to the letter of the law precisely because they are lacking the control of public scrutiny.

[skepticscott]

The people I really don’t understand are the ones who say they fully support prosecuting the torturers and war criminals from the Bush administration, but advocate waiting until (they say) the political climate is more conducive. This seems to be their way of trying to maintain the moral high ground, while still avoiding any criticism of the president, but it is just as profound an abdication of moral and legal responsibility.

They seem to have three main arguments, all of which fall flat.

1. We need to build a groundswell of public support for these prosecutions before they can go forward successfully.

Unfortunately, anyone who comprehends the American political scene and the attention span of the American public knows perfectly well that no such groundswell will be forthcoming. There is as much support for these prosecutions now as there ever will be, and the release of the torture memos isn’t going to change that.

2. The president and Congress need to deal with more pressing issues first.

The fact is, there will always issues that can be painted as “more pressing” than the prosecutions for torture. Most of the ones we have to deal with now are not going away any time soon, and those that do will be replaced by others.

3. Going ahead with the prosecutions now will be painted by the right wing as a political stunt.

Perhaps, but it won’t be seen as any less of a political stunt in two years, or five years, or whenever the “perfect” time comes. The longer it is put off, the more relevant and difficult to answer the question “Why now?” will be if it finally does go forward. Even people who agree with the prosecutions in principle will be forced to ask “If you knew this was so wrong way back then, and were convinced you could prove a case, why didn’t you?”

The bottom line is that conditions simply are not going to get more favorable for torture prosecutions than they are right now. To advocate that prosecutions be put off until a better time is, in a very practical sense, no different than advocating that they never take place at all.

Obama, like all good rhetoricians, can make just about anything sound superficially reasonable to an uncritical audience, but his phrase "this is a time for reflection, not retribution" is just empty fluff, and he’s smart enough to know that.

[Deen]

Turns out that what Obama said here violates international law. To be continued, I guess.

[Rystefn]

So much for a vote for change, right? This crap makes me sick.

[Eclectic]

Skepticscott, I'm going to disagree with you somewhat. The torture is, IMHO, not the most important thing to prosecute, merely the easiest.

What is essential is to reinstate rule of law. The principle that the executive branch can and will be held accountable; it cannot unilaterally declare itself immune to review.

The goal to keep in mind is to make sure those powers are reined in, permanently. Punishment for the actions done may be a part of that process, but is not in and of itself the most important goal.

[realist]

I wish that the torture issue was a statistical outlier, but it is instead an inherent part of Obama's pattern to do only what benefits the economic elite and ignore the popular will entirely.

He voted, for example, to confirm Condi Rice as Sec. State, then voted against adding amendments to the bankruptcy bill - something that helped to bring about the current economic distress. Add in some later questionable votes, and he lost my vote for the presidency.

Since his inauguration, what has he really accomplished? He's organized the Republicans into a solid bloc and given away to the banks almost as much money as the nation generates in a year. And what have We the People gotten in return? A few tax breaks of minimal import and a lot of debt. (Lest I be accused of supporting the GOP, had McCain won, we wouldn't have gotten the tax breaks.)

I sincerely doubt that we will see a return to the rule of law anytime soon, for those who sought the power now have it. They also have two allegedly disparate political parties to protect them from popular wrath, and the germ of a police state to further their plans should the people get restive.

To conclude, I have lost all faith in Obama. While he may get us a couple of little beneficial things, he will - as did LBJ - sacrifice them on the altar of war.

[teammarty]

I feel bad for all the people who thought they wer voting for FDR and got Barry O'Ford instead.