Is Accountability Part of the Change Agenda

As early as April last year, candidate Obama stated his commitment to investigate and, if the facts support it, prosecute those who perpetrated acts of torture during the Bush Administration. In August, the commitment to prosecute if appropriate appeared to remain intact, but days after the election had already fallen from favor, though a commitment to truth appeared to persist.

As the burdens of pragmatism, or perhaps appeasement, have mounted, President-Elect Barack Obama (“PEBO”) appears all but to have abandoned even the possibility of an investigation.

More thoughts after the jump.


PEBO’s exchange with George Stephanopoulos on This Week last week appears to tell the story:

STEPHANOPOULOS: The most popular question on your own website is related to this. On change.gov it comes from Bob Fertik of New York City and he asks, “Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping.”

OBAMA: We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to be looking at past practices and I don’t believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering.

STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?

OBAMA: We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward.

STEPHANOPOULOS: So, let me just press that one more time. You’re not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence wherever it leads?

OBAMA: What I — I think my general view when it comes to my attorney general is he is the people’s lawyer. Eric Holder’s been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he’s going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past.

I am on record with my sympathy, both practical and normative, for excusing many of those who carry out the directives of an abusive regime, but I am not at all persuaded that the same argument would extend to those who, while in service of a country whose core values hold sacrosanct respect for basic human rights and the laws of war, were principals or close accessories in acts of torture, even if they did so under the direct authority of a Presidential directive or wrapped in the thin tatters of highly suspect legal advice.

I am more sympathetic with claims that specific circumstances may have demanded the use of harsh interrogation techniques or, perhaps, torture. The affirmative defense of necessity is, after all, clearly established; and I certainly allow that a particular agent may well have done the right thing, all things considered, if he engaged in torture in the good faith and objectively reasonable belief that it was necessary to stop an imminent terrorist attack. However, that sympathy maintains faith in the rule of law. Necessity is an argument for a jury based on the facts of a particular case, and cannot ground either a prospective policy in favor of torture or an uncritical retrospective default amnesty.

Paul Krugman has expressed his concerns with PEBO’s new inclinations toward oblivion, but one is left to wonder “Whence the shift?”

One account traces PEBO’s changed thinking to a meeting with outgoing CIA Director, General Michael Hayden. Hayden has argued publicly that where CIA officers engaged in acts of torture or aided and abetted torture with an apparent nod from the Bush Administration, “[we] have no right to ask a guy to bet his kids’ college education on who’s going to win the next off-year election.” That, of course, sounds like an order-following defense, though cast politically rather than legally. Some outlets also are reporting that Hayden all but threatened Obama that any investigation would result in a strike by line intelligence officers. (I heard something similar on NPR, but cannot find a definitive link—guidance in comments most welcome). That is a maneuver reminiscent of the protests by the Argentine Military that led to both the Full Stop Law and the Due Obedience Law. Of course, these policies inverted the proper relationship between the military and civilian leadership, broke the promise of Nunca Mas,

violated international human rights law, and ultimately were revoked in 2003.

While I am happy to be persuaded otherwise, I find it hard to identify a solid distinction between the Argentine oblivion and failing to investigate, and where appropriate prosecute, violations of law perpetrated under the Bush Administration. As to the message sent by an investigation to those who bravely sacrifice to serve in the intelligence agencies, I think it is clear: You are asked to serve because of your intelligence, skill, and bravery; you choose to serve out of honor. None of these should be left on the dais when you take your oath.

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3 Responses

  1. Frank says:

    Very well put. “order-following” defenses are a dangerous slippery slope.

  2. A.W. says:

    Sheesh.

    This is rich. The liberals push successfully a redefinition of torture, prisoner of war, due process, etc. into a way unrecognizable in the law before the war on terror commenced.

    Then you want to apply those principles retroactively.

    The fact is that the law never clearly outlawed those acts which you called torture…

    The fact is the law of war never recognized any rights in these unlawful combatants…

    The fact is the Supreme Court never extended due process to enemy combatants, period…

    …until now.

    Now, what, pray tell, would due process say about that? It would say that the principle of ex post facto and the doctrine of lenity would presume against prosecuting anyone for human rights abuses in the Bush admin. Mind you, the actual perpetrators of Abu Ghraib can and i believe, have been, prosecuted, but outside of that example, no one should be prosecuted if only because it would offend due process.

    But apparently the left is not so concerned about the due process of people trying to SAVE American lives.

    Sigh.

  3. Jonathan Roth says:

    A.W., do the world a favor and check “How to Break a Terrorist” out of your library and read it. Then come back here and post about what techniques save lives and which don’t. The writer lived the “ticking time bomb” scenario every day in Iraq and saw that-surprise surprise!-humane methods work and save lives, other methods either shut terrorists up, lead to bad information (which costs American lives) and gives terrorists a huge spike in recruitment (which also costs American lives.)

    Then google about how the U.S. executed Japanese army members for waterboarding U.S. Army members and repeat your claims about “the facts” and what is and isn’t called torture under the law. Somehow I doubt that you’ll take to time to develop and informed opinion, but I guess that’s good for Fox News; they need someone gullible enough to believe them.