Opinion Editorials, April 2009

Obama and Prosecution of Torturers:

Mitigate Sentences, Not Criminality

By Ben Tanosborn

ccun.org, April 18, 2009

Had William Shakespeare been reincarnated as a modern-day president of the United States, he might have modified one of his more famous quotes to say: “the better part of justice is discretion, in the which better part I have saved my presidency.”  It did apply to Gerald Ford with his pardon of Richard Nixon; it did apply to Bill Clinton as well with his unwillingness to disinter and do the forensics on the cadaver of the Iran-Contra affair; and it does apply today to our current president, Barack Obama, and his promise not to prosecute CIA officials on the critical issue of torture.

So valor, in our presidents’ lexicon, has been replaced by justice and life by presidency! 

But valor is subjective and justice is, or should be, objective… so for Ford, Clinton and Obama, pardoning or declining to investigate evidence that convincingly shows to be crimes are not a sign of discretion or prudence – and the always cited “best interests of the country” – but an abuse of power and arrogance.  No man should be above the law but time and again, in America, we allow our presidents to act above the law.  Could it be that our Chief Executive Officer has been compelled to do so by that monster that Eisenhower warned us against: the Military Industrial Complex?  Could it be Corporate America and its bodyguard/enforcer, The Pentagon, have become the permanent and immutable Board of Directors under whose direction our president must govern?  

What seems contradictory about our please-everyone president is his unwillingness to prosecute torturers while at the same time allowing the release of four partially blacked-out memos on interrogation tactics.  President Obama’s rationale of the existence of two principles which might be at odds, covert operations associated with national security and the law, seems flawed.  We are either a nation of laws or we are not.  As a former professor of Constitutional Law, Obama should know better; much, much better. 

There are indications, strong and repetitive indications that torture has been committed not just by the CIA, but by the military and contractors, foreign and domestic, paid with US taxpayers’ funds.  Torture and other major crimes committed, directly or indirectly, under our government’s auspices, whether in Iraq, Guantánamo or elsewhere in the world, including the United States, need to be, and must be, prosecuted, if we are to consider ourselves a nation of laws.  No one, not the president nor the attorney general or any military prosecutor should have, or be allowed to have, a de facto power to dismiss charges against those accused of crimes or torture where preponderance of evidence exists that they may have committed such crimes. 

It was the US and its allies that decided shortly before the end of World War II that the “only following orders” defense, which they anticipated the Germans would use, was not to be a defense for war crimes, including torture.  After the war, even the US Uniform Code of Military Justice incorporated in its code the mode of action in Nuremberg Principle IV which states: "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."

President Barack Obama and Attorney General Eric Holder may have indicated, or promised, that CIA officials won’t be prosecuted for the interrogation techniques used and, by so doing, shown themselves as protectors of crime and criminality.  It’s sad that two assumed enforcers of the law have let the nation, and the world, down.

Although the Center for Constitutional Rights had hoped Judge Baltasar Garzón and the Spanish Courts would bring charges against Alberto Gonzales, Jay Bybee, John Yoo, Wm. J. Haynes II, David Addington and Douglas J. Feith for crimes related to the torture of prisoners in Guantánamo, chances are that Spain will defer taking such action in a matter they probably feel should be handled by the US Justice Department.  But, most unfortunately, Obama and his political advisors probably feel such action might rock his presidential boat.  On other issues such as the economic crisis, Afghanistan or even the withdrawal of troops from Iraq, the President has resorted to some form of compromise; this time, however, he has unashamedly surrendered doing the right thing against what could turn out to be an unpopular cause.  And political Obama has defeated that other idealist Obama most of us progressives helped elect.

Wouldn’t this nation be better off by prosecuting not just the interrogators accused of torture, but those responsible at echelons above them, not only to bring justice, but also to show the international community that we are in fact, and not just in name, a nation of laws?

Only after verdicts are entered should Obama consider mitigating the sentencing, or even a presidential pardon… but not a minute before then.  

Ben Tanosborn

ben@tanosborn.com

www.tanosborn.com