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 U.S. 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.


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