Posted by AzBlueMeanie:
President Barack Obama is a fellow constitutional law attorney. During the campaign Obama promised to restore our constitutional principles and the rule of law which was abused and denigrated during the Bush-Cheney administration. Obama promised that he would hold accountable anyone who had engaged in unlawful conduct. It was the principal reason that I voted for him.
But that was then, and this is now.
President Obama, like other presidents before him, has made the politically pragmatic decision not to pursue prosecution of crimes committed by the previous administration, specifically the crime of torture — a war crime, for which members of the previous administration may be culpable. Statement of President Barack Obama on Release of OLC Memos
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.
The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.
Obama correctly understands the consequences to his administration for investigating and prosecuting the previous administration for its unlawful conduct: the hardening of partisan opposition to his agenda to move the country forward, and an invitation to retaliatory accusations of criminal misconduct by his administration from Republicans in Congress (remember the numerous "scandals" Republicans investigated against Bill Clinton, only one of which – lying in a deposition – was ever established). There was a time in this country when both political parties would work in concert together to enforce the rule of law, without regard to partisanship. No more.
An investigation would also cause a "chilling effect" and invite opposition from within the Intelligence agencies which were decimated under President Bush. Obama knows that he needs to rebuild the Intelligence agencies, and trust in him.
I understand the political calculations. But Mr. President, you are wrong. When you say that "the United States is a nation of laws," it is more than mere words, you have a constitutional duty to enforce the laws. This duty is not discretionary, nor can it simply be disregarded for political expediency when enforcement of the law involves the unlawful conduct of members of the previous administration. You have a solemn duty "to faithfully execute the Office of President of the United States, and … to the best of [your] ability, preserve, protect and defend the Constitution of the United States." That is what I expect from you. Political consequences to your administration should not weigh in your decision.
Yes, other presidents have made this same political calculation. But you promised the American people that you would be different from other presidents. More importantly, the Bush-Cheney administration was an abberation, a radical departure from all previous administrations. Its flagrant abuses of the Constitution and the rule of law were systemic and pervasive. It established dangerous precedents that any future administration may cite as justification for future unlawful conduct, regardless of political party or persuasion, unless its unlawful conduct is thoroughly investigated and held to account in a court of law.
Richard Nixon's bold assertion that "when the president does it, that means it is not illegal" will de facto be true: the president of the United States alone will stand above the law, accountable to no one. The American Revolution against this tyrannical notion, derived from the "divine right of kings," will have been completely reversed. Mr. President, the blood of generations of American patriots demands that justice be served.
Last Thursday, the Justice Department released the Bush administration "torture memos" drafted by lawyers in the Justice Department's Office of Legal Counsel. Interrogation Memos Detail Harsh Tactics by the C.I.A. (Justice Department Memos on Interrogation Techniques full text slide show; Interrogation Techniques – Interactive Graphic summary of techniques). The first legal opinion in August 2002 was principally authored by John Yoo, and was signed by Jay S. Bybee (who is now a Judge on the 9th Circuit Court of Appeals). Three other memos from 2005 were signed by Steven G. Bradbury.
All three men are currently under investigation by the Justice Department's ethics office about their legal analysis on interrogation. "Officials have described the draft ethics report, by the Office of Professional Responsibility, as highly critical."
"All legal opinions on interrogation were revoked by Mr. Obama on his second day in office, when he also outlawed harsh interrogations and ordered the C.I.A.’s secret prisons closed."
Most of the methods have been previously described in news accounts and in a 2006 report of the International Committee of the Red Cross, which interviewed 14 detainees. Only "one previously unknown tactic the C.I.A. proposed — but never used — against Abu Zubaydah, a terrorist operative, involved exploiting what was thought to be his fear of insects." (In fact, there are several excellent books on this subject that you can obtain from your library or bookstore).
The Pentagon official overseeing the tribunals for Guantanamo Bay detainees concluded that the U.S. military tortured a Saudi national… "We tortured Qahtani," Susan Crawford said in an interview with the Post. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.
Crawford, a retired judge who also worked in the Reagan administration, is the first senior Bush administration official responsible for reviewing practices at Guantanamo to publicly state that a detainee was tortured. U.S. official says Guantanamo detainee tortured: report Crawford told The Washington Post the techniques used in Qahtani's case were authorized but applied in an overly aggressive and too persistent manner.
The International Committee of the Red Cross concluded in a secret report that the Bush administration's treatment of al-Qaeda captives "constituted torture," a finding that strongly implied that CIA interrogation methods violated international law, according to newly published excerpts from the long-concealed 2007 document. Red Cross Described 'Torture' at CIA Jails The 14 detainees, who had been kept in isolation in CIA prisons overseas, gave remarkably uniform accounts of abuse that included beatings, sleep deprivation, extreme temperatures and, in some cases, waterboarding, or simulating drowning.
There is sufficient probable cause to investigate and prosecute crimes of torture — a war crime.
The United States was one of the principal authors of several international laws regarding torture. These include the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention), and the International Covenant on Civil and Political Rights.
It also includes the Universal Declaration of Human Rights (1948); and the Geneva Conventions III and IV (from which George W. Bush tried to exempt the U.S. from compliance).
When the U.S. Senate ratified these treaties, it construed the language as being consistent with U.S. domestic legal principles. U.S. Law Prohibits Torture The "supremacy clause" of the Constitution makes these treaties U.S. law.
The use of torture also violates U.S. statutory law. In 1994, Congress passed a federal law which specifically provides for penalties including fines and up to 20 years' imprisonment for acts of torture committed by American or other officials outside the United States. In cases where torture results in death of the victim, the sentence is life imprisonment or execution. 18 U.S.C. Sec. 2340A.
The United States has played a leading role in making torture a crime punishable under universal jurisdiction, beginning with the Nuremberg Tribunal trials. International Humanitarian Law – Principles Nuremberg Tribunal 1950
Under international treaties the U.S. has ratified, we are obligated to prosecute torture — a war crime. Every American knows that "just following orders" is not a valid defense for war crimes. Using fancier words, Nuremberg Principle IV states the same thing:
"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
Why would President Obama want to abbrogate the Nuremberg Principles? h/t Firedoglake The UN Convention against Torture partially implements those Principles, the Senate has ratified the Convention, and Obama's predecessor signed it.
The UN's Special Rapporteur On Torture joined Glenn Greenwald and other Constitutional scholars in reminding the former Constitutional Law lecturer:
The US would be in breach of international law if it does not prosecute CIA officials for torturing alleged terrorists, the United Nations' monitor on torture Manfred Nowak said in a newspaper interview published Saturday in Austria. The UN Special Rapporteur on torture was reacting to the announcement by US President Barack Obama that CIA operatives who used harsh interrogation tactics authorized by the Bush administration should not be held responsible.
"Like all other contracting states to the UN convention against torture, the US has committed to conduct criminal investigations of torture and to bring all persons to court against whom there is sound evidence," the Austrian human rights expert was quoted as saying by the daily Der Standard.
Nowak said he did not think the president would not go so far as to issue an amnesty law for CIA operatives. Therefore US courts could still try torture suspects.
[snip]
Before bringing alleged torturers to court and compensating their victims, it was important that an independent entity investigate the matter, Nowak said.
Several congressional panels either are now or plan to investigate aspects of the Bush torture and rendition programs. This is all well and good, but only if the congressional evidence is forwarded to an independent prosecutor. Congress will have to enact a new law authorizing an independent prosecutor because the previous law was allowed to expire after Kenneth Starr abused his office during the Clinton investigation (and Republicans did not want the prospect of an independent prosecutor available for President Bush).
At a bare minimum, those lawyers who fabricated this elaborate artifice by which to call torture by any other name in order to justify the use of torture in clear disregard for existing law and legal precedents, and their superiors who authorized the use of torture allegedly in reliance upon their legal artifice, should be investigated and held to account before a court of law. The lawyers should be disbarred for their unethical conduct, and in the case of Judge Jay Bybee, impeached and removed from the bench. Editorial – The Torturers’ Manifesto
President Obama always has at his disposal the option to pardon the CIA interrogators who executed the interrogations, where appropriate, especially if they prove to be useful witnesses against higher ups in their chain of command. But to simply announce what amounts to a general "amnesty," that there will be no investigations or prosecutions out of political expediency, is a failure to faithfully execute the laws of the United States. After eight years of disregard for the Constitution and the rule of law by President Bush, Americans expect and must demand better from President Obama, who is a constitutional law attorney. He has no excuse. Justice must be served.