Obama Didn’t Ban Torture
The nonsensical case for “moving forward.”By Randolph Brickey
April 23, 2009
(AP Photo)The current debate on how to respond to the Bush administration’s torture policies centers on the choice between seeking prosecution against its practitioners and enablers, or accepting that torture occurred and that torture is wrong, but not seeking prosecution. President Obama laid the groundwork for the latter argument when he released the Office of Legal Counsel’s so-called “torture memos” last week. He released these memos with an accompanying statement in which he foreswore prosecutions against the CIA operatives and contractors responsible for torture, referring to them as people “who carried out their duty in good faith.” The president sounded a conciliatory note, referring to the Bush administration’s torture policies as “a dark chapter in our history” from which we can now “move forward with confidence,” and that “nothing will be gained by laying blame for the past.”
Over the weekend, talking-head news shows picked up on this argument. On Sunday’s Meet the Press, David Gregory framed the issue as a “debate about how we treat America’s enemies” and asked his guests “Is that a debate worth having, or is it just looking back?,” to which Rep. Dick Armey (R-TX) replied, “Why are you taking smacking George Bush around now? Look for the future.” The other panel members seemed to agree with Armey’s assessment, though they may have simply been paraphrasing the president’s agreement. The panel from Sunday’s This Week reached a similar conclusion, punctuated by Peggy Noonan’s inimitably bizarre hand-wringing ("Sometimes you need to just keep walking… Some things in life need to be mysterious."), to which only Sam Donaldson objected.
David Axelrod, one of President Obama’s chief political advisors, has echoed this argument. During a speech on Monday before the Religious Action Center, Axelrod reiterated the substance of the Obama’s statement, saying that the president’s response should “not become…a forum for re-litigating these issues apropos to the last administration and some of the policy makers there,” and that “there would be a different case” to be made if Obama had not “banned” torture (referring to President Obama’s Executive Order from January 22, in which he contravened the Bush Administration’s legal justifications for torture).
In fact, the President has not “banned” torture. Torture was illegal before President Bush came to office, through our incorporation of the Geneva Convention into domestic law. (This is to say nothing of centuries of American custom and tradition holding that torture is unconscionable and morally abhorrent.) Members of the Bush administration did not somehow “unban” torture; they simply chose to ignore the law. Torture has not become any more or less legal since Obama took office. Rather, he has chosen not to pretend it is legal, and his indication that he is open to prosecutions or investigations against the architects of the Bush administration’s torture policies is a sign that all is not lost for those who want the law to be followed. But however he proceeds, the idea that he has “banned” it, and we can thus move on, ignores both the severity of the crimes committed by those who tortured, and the grotesque abuses perpetrated upon terrorism detainees—both those who are innocent and those who are not.
The federal statute which outlaws torture defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering.” The “color of law” language was included specifically because torture programs are expected to operate with government approval and legal justification. But the authors of the torture memos used Byzantine, arbitrary re-definitions of “pain and suffering” to advance the conclusion that torture is not torture. Allowing torturers to escape accountability because they established or believed thin legal pretexts flies in the face of the statutory text and demonstrates that Obama’s claim that our torturers operated in “good faith” was irrelevant at best. If Obama chooses not to enforce the very law he has promised to follow, he will severely compromise his commitment to end torture.
Obama and members of the press pretend that a step in the right direction is sufficient to fully address years of systematic human rights violations, or at least preferable to an actual public inquiry or criminal prosecution. The illusory ban is set up to take the place of actual enforcement and accountability, as though agreeing to follow the laws means the president has actually worked to changed them. This decision is couched in vague aphorisms of moving forward and stresses the importance avoiding division. But there is very little actual progress here, and it is difficult to imagine how this decision unifies the country when the majority of American support some form of investigation. Furthermore, enforcing our laws is not discretionary but a duty of the office. The President has the opportunity to protect these CIA agents and contractors through presidential pardon if he feels it just or necessary for the national well-being. Obstruction of justice is not a legitimate means towards that end.
Perhaps most disturbing about this navel-gazing is the assumption that the primary focus on any torture investigation should be its effect on the American public. But the American public is not the victim here. The victims are for the most part still locked away in foreign prisons. We have brutalized thousands of people through our torture program. Many of them are innocent of all wrongdoing, many of them are murderers, many are American citizens—the facts of their cases do not matter. All of them have the right to see the men and women who tortured them brought to justice, even if we find it inconvenient or unpleasant.
Randolph Brickey is a first year law student at the University of Minnesota.
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Comments
Dear Sirs, There are two factors that should help us. Cheney has already complained that the release of documents is selective. He has not provided us with any document that serves to clear him. Wouldn’t a fishing expedition have a “chilling effect?” Cheney wants classified documents released. Wouldn’t that endanger national security? Clifford Spencer
— Clifford Spencer - Apr 23, 04:41 PM - #I am still of two-minds of on going after those who inflicted enhanced interrogation techniques. If they were told to perform actions they thought (ie were told by the White House) were legal—however unsavory—are they really responsible?
I think while Americans may support an investigation of torture, I highly doubt that would support going after government officials to court for what, many would consider, was ‘doing their job’.
The real problem here seems to be grayness (however manufactured by the Bush administration) over what legalistically defines torture.
Perhaps the solution is to clarify what these terms mean—instead of allowing each administration to make up their own minds.
Isn’t that more constructive than going after individuals who thought their actions were legal? (Granted, I have no idea how that would be carried out)
Interesting side-note: Philip Zelikow apparently came out against the Bush administration’s legal defense of torture. His blog post on the topic is worth reading. shadow.foreignpolicy…
— Keith White - Apr 23, 05:02 PM - #Please learn the right lessons from the current crisis: that America’s executive, legislative and judicial branches are full of scumbags much worse than Zelikow. We will face a lot of anti-Semitism provoking items in the press in the recent future, but we must make sure that we don’t make a bad situation worse. Zelikow, speaking at a public event, once said that we went to war in Iraq for the sake of Israel. And recent headlines over Jane Harmon may well feed that mentality. After all, the neocons called for World War IV crusades against Islam. But it should never be forgotten that about the same proportion of Jews voted for Obama as of blacks because, like everyone else they wanted CHANGE. This only goes to show that the neocons in no way spoke for anything but a few Jews. They were following the Leninist principle of POLARIZE TO MOBILIZE. And this they did in the Cold War, working for the CIA, for the strategic weapons industry afterward (well payed) and for Likud Zionism recently (again, well payed). In the end, their issues and positions were more a matter of $$$ than ideology. And this too can be said about most American politicians. Along the way, no issues were critical in themselves, they were just useful vehicles. For the chickenhawk neocons the issue was “mensch-hood” derived from he-man politico ability getting America to fight their “World War IV” Crusades against Islam. But if you “follow the money,” as the saying goes, you’ll never see them take on any crusade until it was payed for by an interested party, that includes Likud Zionazism. And indeed they succeeded in polarizing American Jews and what they called “dumb goyim.” Alas, now, facing economic collapse at the same time as we face defeat through military stupidity in Afghanistan and Iraq, one might well think that we are 10 minutes to Kristalnacht making scapegoats of our American Jews— though they are as American as apple pie— thanks to the lie of the neocons that they alone speak for American Jews and that Jews that did not follow them are “self-hating Jews.” But to link Jews with neocons in blame is a dangerous mistake that only goes to prove that we indeed are “dumb goyim”.
— DE Tedooru - Apr 23, 09:08 PM - #What we should really look at is why we AS A NATION have so violated in the Bush years the war crimes principles established at Nuremberg. That has little to do with the Jews, most of whom are the engine of our small but relentless media voice against our torture and war crimes during the Bush Era. Where would the torture issue be without Seymour Hersch, a model of the Jewish Ethic opposing war crimes.
The real issue is that four airliners were taken-over in 10 minutes each, not because alQaeda is so ingenious but because laws established in the 1970s during a spade of skyjackings were violated (such as making the pilot’s cabin impenetrable) out of the same corporate greed that destroyed our economy. Feeling the vulnerability exploiting their corruption by alQaeda, America’s rulers sought to evade the next 9/11 while covering up the last one. Imagine all the law suits if it had been known that the pilot’s cabin doors are always left open during flight on airliners. This is what the alQaeda shahids saw flying First Class between the coasts and proposed to binLaden. Abu Graib, on the other hand, reflected the Little Napoleon character of Rumsfeld and the star whores generals in the Pentagon. But these also reflects the rotten character of the “ain’t my kid going to Iraq” disconnect syndrome of Americans so willing to sacrifice moms and dads in Iraq, making for widows and orphans so they could cheaply fill-er-up their SUVs. If there had been a draft Iraq would never have happened. Unfortunately we twice chose to make one of the cheerleaders captain of the football team, leading America in an anti-Islam Crusade. He liked to call himself “Commander-in-Chief” but he was afraid of responsibility so he passed it off to anyone whom he could later scapegoat. He was against the Iraq War but when Rumsfeld accepted liability he gave in. If there’s any truth that came out of “that most stupid f—ken guy” (per Gen. Franks), Doug Feith, it is that the tragedy of our WW IV neocon crusade is that Bush was so indecisive; thus making him the UN-decider, instead of “the decider,” as he called himself.
In the end, what is clear, is that when the man at the top is BUSHIT, all the crap in right wing politics gathers power in his bureaucracy and does evil because, knowing that they are mediocrities, they know no other way to beat the smart guys than lies, illegality and intimidation. AND STILL, the real issue is that Congress is full of cheap crooks who would sell out their own moms and kids for political status. THEREIN LIES THE REAL REASON WHY WE ARE IN THE MESS WE ARE IN. 9/11 paralyzed all the politicos in Congress and they turned decisions over to the neocons who followed the lead of maze-dull rats generals star whores in the Pentagon who kissed Rumsfeld’s butt in silence. In 2001 Rumsfeld wanted the post of head of the CIA because he claimed that that’s who most influences policy. But the neocons advised him to take SecDef post, win a quick clean war in Iraq, and then cut off Bush in the 2004 primaries, making him “a one term putz like his father.” 2004 would have been Rumsfeld last shot at the presidency. But Bush cleaned out the neocons in his second term and kept Rumsfeld and Cheney as scapegoats when needed. He was a totally amoral political animal but could come up with no policy changes. HOWEVER, THAT STILL LEAVE THE DEMS IN CONGRESS AS PURE MANURE that Bush could trample. Obama, once president, realized that that’s what he’s got to work with. Watching C-Span I and II you get a good idea of that. For Obama, the critical issue is what do you deal with first: the US Crisis of the coming future or the crisis of the recent past? Realizing that he can only change the future and not the past, he has put forward the most ambitious policies in American history— and that’s without abandoning rectification of Bush Era crimes later on. Give him time, for he is a young man of YOUR generation trying to deal with a corrupt old farts Democrat Congress of MY generation. These chicken sh—ts will not stand by him when things get tough. Be grateful that there are still some shining lights in Congress who, unlike the Bush Era Congress, made the Bush Era record public. Only if the American people of YOUR generation are as much scumbags as my generation will that record be buried under dung. But you must still chose priorities. And that doesn’t mean an end to change, it means sequential change by priorities, like items taken off the crash cart in a Code Blue Crisis in order to bring the patient back to life. You can’t worry about his past infections before you get his heart and lungs going.
In the 60s at UC Berkley I used to argue that students are America’s only aristocracy because only you have the luxury of dealing with the facts in America’s moral collapse. My generation started out well but got distracted by hedonia. We became the “me” generation and turned into drugged “sh-t.” It is up to you to responsibly keep the issues on the table through MEANINGFUL DIALOGUE, confronting Congress with realism and reason. Academics like Zelikow have some moments of heroism in truth and many in whore-ism of lies. Their mixed record is based on self-centered opportunism. It is up to you to learn from their good side and to avoid repeating their whore side. Right now, we old turds are eating your lunch. So there will be nothing there waiting for you that you don’t create through your abilities in your productive years to come. That is why now you must act responsibility and prepare your leadership to follow through on the Obama miracle of change to save America. Do not spit at Obama….instead stand with him so that when he retires, a spent wreck, you can pick up the baton and carry on. For now, never let the issues die; keep them alive through meaningful dialogue that engages everyone the way the teach-ins involved everyone in the Vietnam War.
Randbrick.
— Boniface - Apr 24, 10:57 AM - #We live in a society where moral infractions are responded to through discipline and punishment. In order for the public to understand that this was a gross moral infraction we need to see those involved grossly disciplined and punished.
(maybe they have to smell a lot of farts idk im not a judge)
— crumbskull - Apr 24, 11:11 AM - #“I am still of two-minds of on going after those who inflicted enhanced interrogation techniques. If they were told to perform actions they thought (ie were told by the White House) were legal—however unsavory—are they really responsible?”
One of your minds is critically stupid and must be excised. Our law is clear – torture of any kind demands prosecution, and extenuating circumstances do not exist. Our law explicitly states that knowledge of whether or not an act is legal is irrelevant.
— JK - Apr 24, 12:53 PM - #While potentially not legally culpable they are absolutely morally culpable and should be punished through the only means we as a society have available to us (legal), for reference see the Nuremberg Trials.
P.S. Hi RB! Long time no see.
— crumbskull - Apr 24, 10:54 PM - #Go back to GBS
— Sweet Meat - Apr 26, 02:22 AM - #