The president-elect has to take a stand on Bush’s dark legacy
How does he deal with the legacy of criminal actions of his predecessor’s administration when it comes to detention, interrogation, abuse and torture of terror suspects? That has long hovered in the back of the minds of those of us who supported Obama, in large part because he alone had the moral authority to draw a line underneath the criminality of the George Bush-Dick Cheney years and restore credibility and hon-our to America’s antiterror policies.
And so when it emerged Obama was planning to appoint one John Brennan as CIA director, alarm bells went off. Brennan had been close to George Tenet at the time Tenet devised what he called “enhanced interrogation techniques”.
Brennan, a CIA company man who had left the agency for private employment, had made statements in the past couple of years suggesting some sympathy for the Bush-Cheney policy. “When it comes to individuals who are determined to destroy our nation, though, we have to make sure that we take every possible measure,” he said elliptically. Including torture?
When pressed, he kept emphasising the need for a “debate” without tipping his own hand about what he personally believed. Take this Brennan statement looking forward to a change in administration from Bush: “I’m hoping there will be a number of professionals coming in who have an understanding of the evolution of the capabilities in the community over the past six years, because there is a method to how things have changed and adapted.”
This plea for understanding for the Bush-Cheney era did not go down well with the Obamasphere – the network of bloggers who helped build momentum for Obama’s victory. The influential blogger Glenn Greenwald exploded in anger; the centrist Democratic blogger Scott Horton urged Brennan to clarify, and then urged Obama to reject him.
On my own blog The Daily Dish, I wrote that if Brennan were picked, Obama supporters “will, in fact, have to go to war with Obama before he even takes office. And if Obama doubts our seriousness, I have three words for him. Yes we can”.
Brennan, facing more protests, withdrew his name from consideration last week. In the first skirmish over the issue in the Obama era, the antitorture forces won.
But the question remains: what is to be done? It is not Obama’s style to launch into a prosecutorial investigation of intelligence officials or to open new partisan wounds by subjecting Bush, Cheney, Tenet, Donald Rumsfeld and others to war crime charges. He is intent on unifying the country, not further dividing it. He needs the professionals running the antiterror effort and, after eight years of Bush-Cheney, it is hard to find people not tainted by torture.
There is also the possibility that Bush himself might make a preemptive strike and, upon his departure from Washington, issue a blanket pardon for all his aides and underlings who aided and abetted war crimes in the past seven years. Leaving those pardons in place while prosecuting low-level officials or CIA agents would be deeply unfair.
That was the rationale behind the 2006 Military Commissions Act, which gave retroactive immunity for war crimes to civilians in the administration, but not to the military grunts who enforced the policy, and which carved out a continuing exception for torture to CIA agents.
So perhaps the sanest way forward is a truth commission, modelled on those in Chile and South Africa that maintained governmental continuity for a while but set up a process that allowed for a maximal gathering of the relevant facts and names. The president could appoint a powerful and respected prosecutor to begin the process. The commission would focus not just on the military and CIA but also on the Bush justice department and Office of Legal Counsel, and the abuse of the law and its interpretation that gave Bush and Cheney transparently phoney legal cover for war crimes.
At the end of the second world war, US officials prosecuted Nazi lawyers and civilians who tortured no one themselves but came up with legal flimflam to turn war crimes into legal policy. Why not apply the same logic to Bush’s legal architects – the men who declared the president was bound by no law and no treaty in subjecting prisoners to torture up to the very edge of death?
The commission would need strong subpoena powers and the full backing of the president. Only once the commission has reported, the decision on whether to prosecute or not could be made, with much wider public awareness, and much deeper examination of the facts and documents now hidden. There is much, after all, we still do not know – and that information may make the war crimes seem less or more defensible.
There are some limits on transparency, of course, because of the sensitive intelligence matters that are involved. But when war crimes are at issue, it is more important for a democracy to seek transparency from its highest officials than to engage in anything but the most pressing concealment of the most vital secrets. In international law, there are no pardons for war crimes. And if America is going to regain moral authority in the world, it has to demonstrate it lives by the same standards it expects from everyone else.
Bush has even signalled that he will pardon no one because he does not believe they have committed any crimes. But the transparent way in which laughably sourced legal “cover” was provided by Bush’s own legal counsel proves the Bush administration knew full well it was breaking the law, and was willing to force the justice department to put its imprimatur on such illegality.
And the evidence we now have, undisputed evidence, proves already that war crimes were indeed committed – by the president and vice-president on down. I mean: why else Guantanamo Bay and secret black sites if the president believed he was obeying domestic American law?
There is, in the end, a simple and sobering truth: these people have to be brought to justice if the rule of law is to survive in America. In his constitutional soul, Obama knows this. He also knows, however, the political exigencies of taking over a national security apparatus where continuity and lawful vigilance against terrorism remain vital.
How he bridges the demands of the law with the pressures of politics will tell us much about him. And because every act performed by the CIA will soon become his responsibility as much as President Bush’s, he has no time to dither.
The constitutional crisis is in some ways deeper than the financial one. We will find out soon enough if this really is change we can believe in rather than merely hope for.
Peace and Justice Post 
Obama exonerates CIA torturers
April 17, 2009By Patrick Martin |wsws.org, April 17, 2009
President Barack Obama announced Thursday that CIA agents who engaged in torture of prisoners over the past seven years will not be prosecuted or punished. As the Justice Department released memos documenting in grisly detail the interrogation guidelines set down by the Bush administration, the White House made it clear that neither those who ordered the torture nor those who carried it out would face justice.
The four memos released Thursday were written by the Office of Legal Counsel, an arm of the US Department of Justice, in 2002 and 2005. Their release was compelled by a court-established deadline in a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU).
The ACLU denounced the Obama White House statement barring any prosecution of torturers. ACLU Executive Director Anthony Romero said the memos “provide yet more incontrovertible evidence that Bush administration officials at the highest level of government authorized and gave legal blessings to acts of torture that violate domestic and international law.”
The memos document in detail the methods employed against as many as 30 prisoners—a much larger number than previously admitted—including waterboarding, beating and kicking, slamming a prisoner’s head into the wall, slapping, forced standing, forced nakedness, prolonged shackling, sleep deprivation, deprivation of food and threats against a detainee’s family members.
Attorney General Eric Holder, chief US law enforcement officer, defended the decision not to enforce the laws against torture, saying, “At a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.”
CIA Director Leon Panetta, a former Democratic congressman and former White House chief of staff in the Clinton administration, sent a message to CIA employees which declared that the CIA under the Bush administration had “repeatedly sought and repeatedly received written assurances from the Department of Justice that its practices were fully consistent with the laws and legal obligations of the United States. Those operations were also approved by the president and the National Security Council principals, and were briefed to the congressional leadership.”
Panetta’s statement underscores one of the principal considerations of the Obama White House. Any serious effort to prosecute torture at the CIA “black sites”—the secret prisons established as part of the Bush administration’s “war on terror”—would inevitably expose leading congressional Democrats, including House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid, to criminal sanctions, because they knew of and approved the brutal methods ordered by Bush and Cheney.
Not only will the Obama administration refuse to prosecute CIA officers, Panetta said, but the Department of Justice will provide free legal counsel to anyone “subject to investigations relating to these operations.” This means that the US government will represent and defend CIA torturers if they face congressional investigation, civil lawsuits by their victims, or prosecution under international law, such as the International Convention on Torture, to which the United States is a signatory. The US government will also pay any judgment against CIA agents if they lose a suit for damages.
Obama himself sent a letter to all CIA employees explaining his decision to release the torture memos, an action that was opposed by Panetta and former CIA Director Michael Hayden. He wrote, “the release of these memos is required by our commitment to the rule of law.” This commitment extends only to producing pieces of paper—released with names and other incriminating details redacted—but not to any actual sanctions against those who committed horrific crimes.
The text of the statement Obama issued from the White House is typical of the mix of hypocrisy, demagogy and lying that characterizes the major pronouncements of the new president. Obama never uses the word torture, substituting a series of euphemisms that were then parroted in media coverage, where the word “torture” appears only in quotations from critics of the White House decision.
Obama claims that “In one of my very first acts as president, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer.” In fact, this prohibition is not absolute and is essentially a cosmetic gesture, aimed at restoring the “moral authority” of an imperialist power which has carried out massive war crimes.
Profusely apologizing to the CIA for releasing the documents, Obama hastens to reassure the intelligence agencies that he still supports them, declaring, “in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future.”
Obama describes the CIA torturers as people “who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” This echoes the “just-following-orders” defense that was rejected by the Nuremberg Tribunal when Nazi war criminals sought to use it.
No one needed a memo to tell them that the methods employed in the CIA “black sites” were brutal, repugnant and criminal. That is why the CIA and its protectors have stonewalled the courts, long after the details have become public through leaks to the press based on the accounts of those who survived the interrogations, as well as the findings of the International Committee of the Red Cross.
The bulk of the Obama statement is devoted to glorifying the “intelligence community,” in language that would be echoed word for word by Bush and Cheney: “The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.”
The truth is that US intelligence agencies carry out assassinations, torture, subversion and provocation in the interests, not of the American people, but of the American corporate-financial ruling elite. The CIA is reviled all over the world as the American “Murder Inc.,” which has overthrown governments targeted by Washington, instigated civil wars and established military dictatorships in country after country.
Obama’s statement combines abject cowardice, as he bows before the power of the military/intelligence apparatus, and an embrace of its history of violence and counterrevolution, as he pledges in the statement, “I will always do whatever is necessary to protect the national security of the United States.”
In closing, the US president declares, “This is a time for reflection, not retribution … 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.”
What cynical rubbish! As if torture can be stopped by exonerating the torturers and concealing their crimes from the public!
The message is clear: anyone who demands accountability for the crimes committed under the Bush administration (and continued under the Obama administration) is acting to “divide” the nation.
By declaring an amnesty for those who carried out actions that—even according to the Obama administration—constituted torture and were illegal, the White House is sanctioning criminal activity by the state. This amounts to a carte blanche to the military and intelligence apparatus to utilize whatever illegal methods they choose to employ.
Obama’s kowtowing to the most reactionary forces within the state underscores the vast and ever-growing power that this “state within a state” exerts over all aspects of government policy. It is one more demonstration of the terminal decay of American democracy.
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Tags:ACLU, Bush administration, CIA agents, memos released, President Barack Obama, prisoners, torture
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