The Obama Administration has much to recommend it for the courage to address the frightening distress in which Bush has left the country mired. But despite such determination, there are some areas in which a display of courage is demonstrably lacking. The decision to forego prosecution of Bush administration CIA officers for torture crimes is an example of a “cave-in” to political pressure that disserves the country. Leaving potential prosecution on the table is not primarily a retribution driven tool, it is predominantly pragmatic.
Rather than disavow prosecution at the outset, immunity should be offered strategically in order to get the detailed information necessary to dissect and analyze how the government went so badly off course, legally and morally. Unlike torture as a means of extracting useful information, the current Justice Department should know that plea bargaining and offers of transactional immunity are both humane and effective ways to get at information. The information is often more reliable because the effectiveness of the immunity bargain is predicated upon verification of the information offered. In contrast, a tortured detainee will say anything the he or she believes the captors want to hear in order to stop the abusive treatment. If the true goal is to get to the bottom of the course of events that now has the US deemed irrelevant in the advocacy of human rights around the world, then retaining the option of pressuring material witnesses and participants to provide verifiable details would seem critically important and well as functional.
Much that the Obama Administration has tried to do is laudable, patient and moderate. Critics, other than the Obama haters who are negative on anything he does, tend toward two extremes. The first are the critics who trot out the old “cut taxes and let the capitalists run amok” portfolio of the Reagan/Bush ilk. This is the failed strategy that has led to the current sad state of affairs. Reagan was deliberate in his drive to disassemble governmental regulatory functions. G W Bush was reckless and unable to grasp the probable consequences of doctrinaire policies. As such, his kneejerk response to “terrorism” was to ensnare the US government in the same types of immoral and inhuman tactics that the so-called “war on terror” was supposed to eradicate. The notion that the end justifies any means is viable only when a nation is willing to abandon moral authority.
The second camp of critics tends to believe that excessive zeal in pursuit of truth and democracy is not a fault. They champion more vigorous measures to prosecute and punish wrongdoers who followed dogmatic orders and policies of the G W Bush administration. As in the Viet Nam My Lai massacre, the idea is that the foot soldiers should have known better than to carry out orders that were illegal and human rights violations. This position is also too extreme for the current situation. The probable truth lies somewhere in the gray areas between these positions. Many acts of torture were doubtless carried out sadistically and enthusiastically, but under the cover of an express legal opinion by hight government officials. While reprehensible, punishing these acts may not be as useful as information about who gave orders and which superior officers had specific knowledge of such conduct. When detainee claims of torture surface, as is now occurring more frequently, information to verify or refute is important.
In some instances, CIA and military officials appear to have acted in applying torture techniques PRIOR to the DOJ legal memorandum appearing to authorize such tactics. In other situations, torture was conducted after express concerns and reservations as to the legality, effectiveness and humanity of the treatment were raised. In these latter two instances, the argument that the personnel were “just following orders” simply does not wash.
And beyond individual actions and culpability, the testimony of these participants is vitally important to a full understanding of how torture came to be an institutionally sanctioned practice of the US, despite decades of international prohibitions and directives against its use. The argument that the country needs to “move beyond” the dark period of its history cannot withstand logic or scrutiny in this instance. It may be a policy decision not to mire the country further in vengeful public trials of Bush functionaries. But to sweep the matter under the rug by abandoning traditional prosecutorial tools is like denying the Holocaust. The wrong and the evil done in the name of the country is manifest and needs to be acknowledged. Whether or not participants are jailed, the simple truth of what happened and how it was allowed to happen is important to enable the country to truly move past that dark period. This is the argument of those sponsoring a truth commission, a laudable goal. However, conducting such an inquiry in the context of Congressional hearings is likely to generate more publicity and more heat than light.
The die may be already cast, in that Panetta already gave assurances of no prosecution that Obama seems to have ratified. But the move was nevertheless a mistake. Obama’s greatest power to govern stems from a belief that he will have the courage to govern justly and will move to restore some measure of integrity in government and moral authority to the image of the United States. Moves like the decision to abandon, a priori, the option of prosecution against war crimes only serves to weaken public confidence in his leadership.
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