If Obama Doesn't Prosecute Bush's Torture Team, We'll Pay a Big Price Down the Road

"How did it come about that American military personnel stripped detainees naked, put them in stress positions, used dogs to scare them, put leashes around their necks to humiliate them, hooded them, deprived them of sleep and blasted music at them? Were these actions the result of 'a few bad apples' acting on their own? It would be a lot easier to accept if it were. But that's not the case."

-- Sen. Carl Levin, D-Mich., Chairman of the Senate Armed Services Committee, June 17, 2008

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It was a short but significant report in Newsweek last week, and it began like this:

Despite the hopes of many human rights advocates, the new Obama Justice Department is not likely to launch major new criminal probes of harsh interrogations and other alleged abuses by the Bush administration. But one idea that has currency among some top Obama advisers is setting up a 9/11-style commission that would investigate counterterrorism policies and make public as many details as possible. "At a minimum, the American people have to be able to see and judge what happened," said one senior adviser, who asked not to be identified for talking about policy matters. The commission would be empowered to order the U.S. intelligence agencies to open their files for review and question senior officials who approved "waterboarding" and other controversial practices.

The article, written by Michael Isikoff, came at the heels of another report by the Associated Press, which quoted a pair of anonymous Obama advisors as saying that there was little-to-no chance that an Obama Justice Department would try to prosecute Bush-era officials for torture. The same report quoted Senate Judiciary Chairman Patrick Leahy, D-Vt., as saying that members of the Bush administration would not face war crimes charges in the United States. "These things are not going to happen."

Common consensus is that the Bush administration has been the most lawless in U.S. history. From its illegal invasion of Iraq to the corporate-assisted, warrantless wiretapping of its own constituents, the Bush White House seems never to have held a view of the law from below. And, since long before the election of Barack Obama, a number of groups and individuals have called for accountability, from a vocal network of people calling for impeachment for Bush's illegal and fraudulent invasion of Iraq, to, this summer, the bluntly labeled campaign, Send Karl Rove to Jail.

But if ever there was a stain on the fabric of American democracy that must be deserving of prosecution, it is the dark legacy of torture left by the Bush administration. From Abu Ghraib to Guantanamo to the CIA's "secret sites," proof abounds that the U.S. government engaged in systematic torture that was approved by top government officials. Ironically, a central laboratory for this corrosion of the country's moral and legal code was the very office charged with defending the rule of law: the Department of Justice.

"It is these attorneys -- Alberto Gonzales, John Yoo, James Bybee, David Addington and William Haynes -- who provided the legal basis for much of the torture and abuse that occurred at Guantanamo, Abu Ghraib, and other U.S. detention facilities around the globe," Michael Ratner, president of the Center for Constitutional Rights, writes in the recently published The Trial of Donald Rumsfeld: A Prosecution by Book. In Ratner's view, the prosecution of these attorneys, as well as Bush, Cheney and the rest, is a critical part of not just imposing accountability on those who approved and carried out torture in the name of the American people, but in dismantling a legal framework that could lead to more torture in the future.

'This Was an Assault on the Law Itself'

Members of the legal and human rights community are currently grappling with the question of how to hold the Bush administration accountable for its crimes. In a recent cover story of Harper's Magazine, human rights legal scholar Scott Horton lays out the rationale for pursuing the crimes of the Bush administration. The good news is there is plenty of historical precedent for going after government torturers in the United States. The bad news is that they have been uneven, at best. From an Army captain who was court-martialed for imposing the "water cure" on Filipinos during the Spanish-American War ("He was forced to pay a $50 fine") to Japanese military officials tried for war crimes (including waterboarding) after World War II -- some of whom were sentenced to death, the severity of the sanction has depended on who is meting it out.

Prosecuting the torturers of accused "terrorists" in far-away places may not inspire a call to action by Americans now -- especially when a few token prosecutions of soldiers have taken place (most famously, Abu Ghraib Army Reservists Cpl. Charles Graner and Pfc. Lynndie England). But a policy systematically designed to subvert the law should be intolerable to those who place any kind of faith in American democracy. Horton's article -- parts of which should be required reading -- discusses how, during the Nuremberg trials, "the Americans and Soviets … wanted to prosecute the people who had created the legal framework for the Nazi regime, but British and French leaders objected."

"Consequently, the United States, acting on its own, convened a separate Nuremberg tribunal to try lawyers, judges and legal policymakers," thereby establishing "the principal that policymakers who occurred the mandatory prohibitions of international law against harming prisoners in wartime could be prosecuted as war criminals, no matter how many internal memos they had written to the contrary."

This leads to a critical point: "The key issue that Scott pointed out in his article," Ratner says, "is that this was an assault on the law itself." If legal opinions that sanctioned torture are left untouched, it sets a dangerous precedent. As Ratner recently wrote on his blog, "If laws can be broken with impunity today, they can and will be broken with impunity tomorrow. Not just laws against torture and war crimes, but any and all laws; any and all limits on government."

"The only way to prevent this from happening again," he tells me, "is to have prosecutions that will send a deterrence message" to future administrations.

'We Owe the American People a Reckoning'

How to do this is the most pressing -- and difficult -- question. Horton considers the various forms such prosecutions might take, from the International Criminal Court (too dependent on the support of the United States) to foreign courts (viable, but "true justice cannot be compelled from without"), to domestic courts (unlikely, because prosecuting war crimes are rarely done against those at the top of the chain of command). Ultimately, he settles on a model of the truth-and-reconciliation commissions carried out in South America and South Africa. Although they have had imperfect results in the past -- "In some cases, a bargain was struck under which the truth about past misconduct was divulged in exchange for a pardon" -- the value of the commissions largely lies in the educational benefits a commission might bestow on the public. But beyond that, a "commission plus special prosecutor," as Horton calls it, could be carried out in public, in order to "find the facts, weigh them, and if the facts warrant, make a formal recommendation for the appointment of a prosecutor."

For Ratner, the models that have been suggested thus far don't go far enough. In his view, the only way to restore the rule of law is to pursue criminal investigation and prosecution. "People have been pulling their punches when it comes to seeking full prosecutions," he says, "because of the feeling that is not politically feasible." It may be true in the end, "but unless you demand it, you're not going to get it." Failing to try, he says is "the worst defeatism you can have."

Indeed, given the destruction of the past eight years to the fabric of American democracy, to shy away from torture prosecutions would seem profoundly -- and dangerously -- shortsighted. Obama has stated that as a country, the United States does not torture -- most recently in an interview with 60 Minutes -- and much of the support he gained as a candidate from the legal and human rights community was based on his vocal opposition to the Military Commissions Act. Although his opposition to torture has been unequivocal in tone, Obama has been hesitant to state in solid terms what exactly he would do about the torture that already took place. Responding to the question this summer, from a reporter from the Philadelphia Daily News, Obama responded:

What I would want to do is to have my Justice Department and my attorney general immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.

So this is an area where I would want to exercise judgment -- I would want to find out directly from my attorney general -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important -- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings, and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.

It's hard to imagine the lawlessness of the Bush administration falling short of "exceptional." But regardless, whether Eric Holder, Obama's pick for attorney general, would take this on is questionable. "Everybody has advice for Holder," Slate legal correspondent Dahlia Lithwick recently wrote, "starting with shuttering Guantanamo and repairing detention and interrogation policies; recalibrating the legal limits on information-gathering by intelligence agencies; doing away with provisions of the Patriot Act that encroach on civil liberties; and restoring the integrity and independence of the Office of Legal Counsel, which advises the president on the lawfulness of a proposed action." But Holder has been known to criticize the violations committed by the Bush administration. "We owe the American people a reckoning," he said in a speech in June.

Still, in Horton's opinion, although torture is a federal crime and a federal prosecutor has the power to prosecute it, it is unlikely any U.S. attorney would possess the independence to do so. "Indeed," says Horton, "so many high-level figures at Justice were involved in creating the legal mechanism for torture that the Justice Department has effectively disqualified itself as an investigative vehicle, even under a new administration." Ratner agrees.

So what is a "reckoning"? And where are the consequences?

For Ratner, now is the time to push Obama, hard, on seeking independent prosecutions, "partisan witch hunt" concerns be damned. After all, Obama brings with him enormous moral credibility. Lifting the stain of torture is a project that could -- and should -- transcend partisan politics. "Obama could change this (discussion) as he changed the dialogue on race in this country," suggests Ratner, "with a speech on torture."

"People say that prosecuting torture is 'looking backward,' " says Ratner, "but in my view, prosecutions are looking forward -- looking forward so that this doesn't happen again."