Ali Gharib | Inter Press Service
WASHINGTON, 25 Nov (IPS) – 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 Defence 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 Centre for Constitutional Rights.
But foreswearing 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.’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 in 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 criticised ‘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 Jul. 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’ towards ‘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 backwards.’
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 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 selfsame 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 honourably 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 abetters’.
‘[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 defence in international law,’ he said. ‘They’re finished.’
![[Protestor Ephrosine Daniggelis holds a placard in front of U.S. president-elect Barack Obama's vacation compound in Kailua, Hawaii December 30, 2008, during a protest against the Israeli attacks on Gaza. (REUTERS/Hugh Gentry)]](https://i0.wp.com/www.commondreams.org/files/article_images/gaza_obama_protest1230.jpg "gaza_obama_protest1230.jpg")
Protestor Ephrosine Daniggelis holds a placard in front of U.S. president-elect Barack Obama’s vacation compound in Kailua, Hawaii December 30, 2008, during a protest against the Israeli attacks on Gaza. (REUTERS/Hugh Gentry)
Peace and Justice Post 
Obama’s first problem is US war crimes
December 1, 2008The 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.
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Tags:CIA agents, criminality of the George Bush-Dick Cheney years, John Brennan, President-elect Barack Obama, war crimes
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