rssObama May Be Required to Prosecute Bush Officials for War Crimes
Monday, January 19, 2009 at 12:21 am
- 17 Comments
The consensus seems to be growing that, despite his oft-repeated desire to “look forward rather than backward” when it comes to the Bush administration’s authorization of the use of torture on detainees in American custody, President-elect Barack Obama is going to have to open some sort of official investigation of Bush-era war crimes once he takes office.
Ever since Pentagon official Susan Crawford said she had to suspend the military commission prosecution of Mohammad al-Qahtani because he was tortured by U.S. officials, and Attorney General-nominee Eric Holder said unequivocally last week that waterboarding is indeed torture –- something legal experts have been saying for a long time — legal scholars, advocates and bloggers have been buzzing that it may now be impossible for Obama, and Holder, to simply ignore the evidence of war crimes.
As Jennifer Daskal, a senior lawyer at Human Rights Watch told the New York Times: “It would be contrary to the principles of the criminal justice system for the attorney general to say he believes a very serious crime has been committed and then to do nothing about it.”
Salon’s Glenn Greenwald laid out the case in his blog on Sunday, arguing that it’s no longer optional. Given that the United States is a party to the United Nations Convention on Torture – a treaty signed by President Ronald Reagan –- and that the U.S. Constitution holds that international treaties are the highest law of the land, the United States really doesn’t have a choice: “U.S. law requires prosecutions for those who authorize torture,” writes Greenwald.
Even Charles Stimson, the top official on detainee affairs at the Defense Department from 2004 to 2007 and now a senior fellow at the Heritage Foundation, told The Times that last week’s statements from Holder and Crawford “certainly will increase the pressure on Holder to mount some kind of investigation.”
Internally, Obama has likely gotten plenty of mixed advice on the subject. As I’ve written before, senior Obama advisor Cass Sunstein — a TWI contributor who’s since been named to head the Office of Information and Regulatory Affairs — is one of many close to Obama who’ve been, at best, lukewarm about the idea of prosecutions in the past. And Holder, though he’s taken a clear stand against torture — and now waterboarding — has never said directly that the United States must prosecute the crime, even if American officials have committed it.
Here’s what Holder said at his confirmation hearing last week, responding to Senate Judiciary Chairman Pat Leahy (D-Vt.):
HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed — obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws.
But is it also the obligation of the president, and his attorney general, to prosecute when those laws have been broken?
Eugene Volokh over at The Volokh Conspiracy doesn’t think so. “Prosecutors have enormous discretion,” he writes, and “the DOJ has more pressing concerns,” which is why it didn’t prosecute Eliot Spitzer for cavorting with call girls.
Still, officially-sanctioned torture is much more serious, and has far more broad-reaching implications, both domestically and for U.S. foreign relations, than Eliot Spitzer’s strange (and costly) sex habits.
But Volokh makes one good point. The next administration’s decision about whether to prosecute the current one will ultimately come down to a political calculation: Is the public really clamoring for it, and how loudly? And is it worth embarrassing the Democratic senators and representatives in Congress who were briefed on the torture, humiliation and other “extreme” techniques being used to squeeze information out of detainees, and failed to object?
Despite the strong case being made in favor of prosecution, Volokh’s probably right that it will come down to politics. That means it will depend on how strongly Americans insist that the new administration deliver what Eric Holder has promised: faithful execution of the law.
17 Comments
Comment posted January 19, 2009 @ 4:59 am
Bush and all those involved in torturing anyone..should be prosecuted to the fullest extent of th law..
Comment posted January 19, 2009 @ 10:37 am
I know I am paranoid, but…
Does it not seem strange that Cheney and others have said, yeh its torture, but it works, etc?
I think these folks that are admitting its torture are doing so to MAKE Bush face the problems and pardon them. Otherwise why would they admit to committing a crime?
Comment posted January 19, 2009 @ 2:03 pm
There are great dangers to our particular form of govenment if it becomes the custom for each administration to start looking into oossible crimes committed by its predecessor. Government officials, particularly at mid- and lower levels would feel reluctant carryout orders from their superiours if there were any danger that a future regime might look with disfavor upon then. The lines drawn by the law are not always clear and bright. Sometimes it is is the policy perspective of the advocate of a particular action that causes him to believe it is lawful while another person might view his conduct as unjustifiable or unlawful. In the case of wiretapping, for example, there are bound to be differing opinions about when it is essential to conduct this activity, even without a court order and when it would be unlawful. It is too easy and answer to say that the case is open and shut one way or the other. There clearly are persons chomping at the bit to put some of our former government officials in the dock, but I think this would be contrary to our tradiitions unless the violations were so flagrant or clear that they could not be disregarded with due regard for the law. Unbiases judgement is the key here – and it very hard to achieve in these cases.
Comment posted January 19, 2009 @ 2:13 pm
The US behaved badly.
A case for torture can only be made to prevent a future act of mass killing.
Prosecute them.
Comment posted January 19, 2009 @ 3:13 pm
I believe those involved in torture should be prosecuted.
Pingback posted January 20, 2009 @ 10:14 am
[...] in Bush Administration, Obama administration at 7:14 am by LeisureGuy Daphne Eviatar of the Washington Independent: The consensus seems to be growing that, despite his oft-repeated desire to “look forward rather [...]
Comment posted February 22, 2009 @ 3:15 am
Investigate,subpoena,prosecute,and incarcerate. Plain and simple. The Bush administration made a mockery of the Geneva Convention and the very laws we have lived by for hundreds of years.
Comment posted April 16, 2009 @ 10:33 am
We have signed and are bound by the Geneva Convention which forbids torture.
We have our own laws making torture illegal.
We have a National military stake in keeping torture illegal.
We have a National moral stake in keeping torture illegal.
We have an international stake in repairing our Nation's honor.
We have tortured in the face of all the above.
We have failed in all the above.
The only way for the United States to regain its former position of morality is to show the world that our torturing was an aberration, a time of excess by our country's leaders.
The only way for us to ensure that we never again fall into this trap is to investigate and punish the LEADERS that authorized the use of torture. If we do not punish the LEADERS that enabled and urged subordinates to torture then some day in the future other leaders will be under the same pressure that caused this excess, and they will torture. If we punish the leaders for this episode of torture, it will stand as a deterrent to all future leaders in this country to never again torture.
Why would we not do this? Are there political reasons that are more important than this? Is this a problem that is too hard for America to face? Have we become so political that we are now moral, legal, cowards?
If we know the law, if we know the lawbreakers, if the world knows what we know, and finally knowing the world might do this for us, how can a patriotic American not investigate and punish the leaders that lead us down this path?
“We are a nation of laws”, only when its convenient? Only when its not hard? When its politically OK?
“We are a nation of laws”, but only from now on? Does not every crime occur in the past and is then investigated and punished? Does the past of one National Administration put it beyond the pale of the succeeding Administration? Does the law “reset” with each new administration? That would make an interesting precedent in Law.
Attorney General Holder??? President Obama!!!?
Please…
Comment posted April 16, 2009 @ 5:33 pm
We have signed and are bound by the Geneva Convention which forbids torture.
We have our own laws making torture illegal.
We have a National military stake in keeping torture illegal.
We have a National moral stake in keeping torture illegal.
We have an international stake in repairing our Nation's honor.
We have tortured in the face of all the above.
We have failed in all the above.
The only way for the United States to regain its former position of morality is to show the world that our torturing was an aberration, a time of excess by our country's leaders.
The only way for us to ensure that we never again fall into this trap is to investigate and punish the LEADERS that authorized the use of torture. If we do not punish the LEADERS that enabled and urged subordinates to torture then some day in the future other leaders will be under the same pressure that caused this excess, and they will torture. If we punish the leaders for this episode of torture, it will stand as a deterrent to all future leaders in this country to never again torture.
Why would we not do this? Are there political reasons that are more important than this? Is this a problem that is too hard for America to face? Have we become so political that we are now moral, legal, cowards?
If we know the law, if we know the lawbreakers, if the world knows what we know, and finally knowing the world might do this for us, how can a patriotic American not investigate and punish the leaders that lead us down this path?
“We are a nation of laws”, only when its convenient? Only when its not hard? When its politically OK?
“We are a nation of laws”, but only from now on? Does not every crime occur in the past and is then investigated and punished? Does the past of one National Administration put it beyond the pale of the succeeding Administration? Does the law “reset” with each new administration? That would make an interesting precedent in Law.
Attorney General Holder??? President Obama!!!?
Please…
Comment posted October 8, 2009 @ 7:49 pm
Bush and all those involved in torturing anyone..should be prosecuted to the fullest extent of th law..
Comment posted October 8, 2009 @ 7:51 pm
Nice info, Useful for my job…this has made my life (my projects) goes a lot easier. Keep up the good work, thanks very much… :)
Comment posted October 8, 2009 @ 7:53 pm
very interesting article, keep posting sir.. I agree this opinion :
I think these folks that are admitting its torture are doing so to MAKE Bush face the problems and pardon them. Otherwise why would they admit to committing a crime?
Comment posted October 8, 2009 @ 7:54 pm
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Comment posted October 8, 2009 @ 7:55 pm
Incredible article. Thank you for all this valuable information.. ;)
Comment posted January 27, 2010 @ 5:37 pm
I am a U.S. Citizen with no criminal record at all. I have never been charged with a federal offense. I have never owned a gun and am a gun control advocate. Despite this, I was imprisoned by USDOJ for 5 months without any criminal information being filed, and without an arraignment or bail hearing. I was told in court that I was not entitled to a lawyer.
This was all orchestrated by former judge Naughty Nottingham. The stated reason was to force me to withdraw filings I made in other courts, that Nottingham didn't want me to file. They haven't prosecuted Nottingham either or even acknowledged that they did wrong, except for Nottingham, who said “whoops”.
Comment posted January 27, 2010 @ 10:37 pm
I am a U.S. Citizen with no criminal record at all. I have never been charged with a federal offense. I have never owned a gun and am a gun control advocate. Despite this, I was imprisoned by USDOJ for 5 months without any criminal information being filed, and without an arraignment or bail hearing. I was told in court that I was not entitled to a lawyer.
This was all orchestrated by former judge Naughty Nottingham. The stated reason was to force me to withdraw filings I made in other courts, that Nottingham didn't want me to file. They haven't prosecuted Nottingham either or even acknowledged that they did wrong, except for Nottingham, who said “whoops”.
Comment posted September 6, 2011 @ 9:58 am
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