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 accountable.
Irrespective of whether Vice President Dick Cheney, former Secretary of Defense 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.
"Even 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 Center for Constitutional Rights.
But forswearing 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.’ interactions with the rest of the world.
If 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.
"If 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 by 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 criticized "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.
"The 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.
In the July 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."
That 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 speech.
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" toward "justice," as King did, Obama called for it to be bent "toward the hope of a better day."
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 backward."
Another 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.
"There is no evidence that high-ranking officials acted with criminal intent," he said. "They were relying in good faith on the advice of legal counsel."
Taylor 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 same Justice officials who were involved in giving approval.
Despite referring to John Yoo as a "gonzo executive imperialist," Taylor said that "those officials, like them or not, were honorably 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 abettors."
"[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."
That 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 defense in international law," he said. "They’re finished."
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