President Obama: torture Revisited

President Obama has recently announced that he is open to the idea of investigating and ultimately prosecuting Bush administration officials who gave support to justifications and the policies that permitted the use of torture. This announcement comes after weeks of mainstream protest over Obama’s earlier announcement of seeking answers but not necessarily prosecutions for the individual agents and operators who actually conducted the enhanced interrogation techniques authorized by the Bush administration. The original statement on amnesty for torturers was vague enough to allow Obama to shift the focus to the leadership of the torture justification hierarchy in the face of the public resistance to the idea of simply letting people go.

In looking to the future, as Obama has stated he wants his administration to do, one must often times engage the past. This was demonstrated in post-WWII Germany and the Nuremberg Trials. When one wants to make a clean break with the past, it is necessary to address and prosecute the abuses of the past to ensure prevention for future generations. This is what the law, both domestically and internationally, has come to tell us; and it is rightly what we as a people now expect. This isn’t some knee jerk reaction to the headiness of obtaining power; it is the rightful and necessary reconciliation of what the US stands for, legally and philosophically, and how the Bush administration abused those principles. It is must never be allowed that the government servant’s immunity from civil litigation as a consequence of job-related actions be translated into criminal immunity. It must also never be allowed that governmental service at high level proscribe efforts at prosecution in such an obvious case of abuse of fundamental legal and ethical principles. Finally, it must not be allowed that high office be a shield against investigation and prosecution for criminal abuse of the law, as this abrogates the principle of equal protection under the law and declares privileged protection.

There are many reasons for Obama to prefer not opening this door, regardless of what he may have said on the campaign trail. There are ramifications for the Presidency and governance in general in holding the previous officials accountable for their actions. Some of the ramifications are becoming visible in the GOP’s admittedly weak call for investigation, not only for the responsible chain of command, but also for legislators, including many Democrats, who had knowledge of the interrogation procedures through their membership in various intelligence committees and sub-committees. Another worry is that the precedent set would possibly permit the later introduction of wholly partisan investigations and prosecutions over trivialities. It is possible, that, if not carefully managed, the prosecution of former Bush administration officials over the abuses of human and civil rights under the various War on Terror policies, subsequent administrations may be victimized by out of office partisan witch hunts. Fear of partisan retribution for later administrations has been part of the reason for the new administration’s reluctance to fully engage the issues of War on Terror- justified abuse of foreign and American laws as well as citizens and their rights.

No less an authority than John McCain, tortured himself in Vietnam, has claimed that Bush era enhanced interrogation techniques constitute torture. Though senator McCain’s torture was more physically and mentally egregious and dangerous than the recent US policy provided for, his opinion on this matter counts. He personally understands that all of these techniques are damaging to the dignity and integrity of people, and that such methods are not acceptable practice for a nation of law. Merriam-Webster’s Dictionary defines torture as: a) anguish of body or mind b) something that causes agony or pain. This is their primary definition. The policies of the Bush administration meet these criteria. The Geneva Convention Against Torture defines torture in Part 1, Article 1: “For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Here too, the Bush policies meet the criteria. Whether the “enemy combatants” fit the role of Enemy Prisoners of War or not is a non-argument. The US has laws prohibiting torture of anyone; there is absolutely no body of writing or law which can be used to justify the actions conducted under the Bush administration. Attempting to conduct illegal and deplorable acts outside of US territory is still punishable by US law. And as the decisions to permit these acts were made on US territory, in Washington, DC, then there is certainly jurisdictional authority.

The United States has a legal, moral, and ethical obligation to prosecute those responsible for these abuses. There is absolutely no way around this fact, and President Obama must lay aside fears of future retribution to ensure against acts of future violation. As Shepard Smith said, emphatically and repeatedly, “This is America, we don’t torture!” It is against everything we are, and if even a former President must go to prison over it, then let the law prevail.