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Torture and the Presidential race

While more and more evidence comes out that Bush administration officials illegally authorized torture of suspected terrorists, in violation not only of international law but of established U.S. law as well, both leading presidential candidates have, for the most part, remained silent on whether they support further investigation and prosecution, if the evidence warrants it.

Still, the statements they’ve made so far about torture, justice and accountability give us a strong idea of where they stand on the question.

At his recent speech in Berlin, Sen. Barack Obama, the presumed Democratic nominee, made a point of asking: “Will we reject torture and stand for the rule of law?” Though he didn’t lay out what exactly he would do to enforce the law, his comments elsewhere indicate he’s open to investigating and even prosecuting policy-makers for war crimes if the evidence turns out to support the charges. As he told a Philadelphia Inquirer reporter in April:

What I would want to do is to have my Justice Department and my attorney general immediately review the information that’s already there and to find out are there inquiries that need to be pursued. I can’t prejudge that because we don’t have access to all the material right now. I think that . . . if crimes have been committed, they should be investigated. . . .

So this is an area where I would want to exercise judgment — I would want to find out directly from my attorney general — having pursued, having looked at what’s out there right now — are there possibilities of genuine crimes as opposed to really bad policies. And I think it’s important– one of the things we’ve got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.

Sen. John McCain, on the other hand, has not made any such statements. His staff did not return repeated calls for comment on the issue, or even to say whether he’s ever taken a stand on it. That evasion stands in stark contrast to the image he originally projected in his campaign, of a former prisoner of war who would always take a principled stand against torture and prisoner abuse. As commentator Andrew Sullivan has pointed out, that stand is what attracted many of his early admirers, and is alienating them now.

Two of McCain’s positions on recent bills suggest that as president, he’s more likely to sweep official abuses under the rug than to take a principled stand for accountability and law enforcement.

First, in 2006, McCain voted in support of the Military Commissions Act, which amended the War Crimes Act specifically in order to eliminate the risk of prosecution for Bush administration officials, CIA officers and others who had used abusive, humiliating or degrading interrogation techniques on prisoners. (Obama voted against the MCA.) The amendments significantly narrowed the scope of potential criminal prosecutions to 10 categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking. It specifically left out other acts forbidden by the Geneva Conventions, including “outrages upon [the] personal dignity” of a prisoner and intentional humiliation, like the actions taken at Abu Ghraib – including stripping prisoners, dragging them around on a dog leash, forcing them to assume sexually humiliating positions and making them wear women’s underwear. None of that, under the 2006 amendment to the War Crimes Act, is illegal anymore.

In February, when McCain had another opportunity to take a stand against torture, he revealed that politics trumps principle again: he voted against a Senate bill that would have prevented the CIA from using torture, violence and humiliation by restricting interrogation techniques to those listed in the Army Field Manual. McCain explained is vote: “What we need is not to tie the CIA to the Army Field Manual, but rather to have a good faith interpretation of the statutes that guide what is permissible in the CIA program.”

In offering his reasoning for voting against the bill, McCain said that he believes that waterboarding is illegal. Still, he has never suggested that the government officials that authorized and directed its use ought to be investigated — let alone charged with any crime for violating the law.

Not that McCain doesn’t believe in investigation or prosecution of government officials. Indeed, in 1999, he voted to impeach President Bill Clinton, emphasizing the importance of holding the president “accountable to the rule of law“:

“Presidents are not ordinary citizens,” he pronounced. “They are extraordinary, in that they are vested with so much more authority and power than the rest of us. We have a right; indeed, we have an obligation, to hold them strictly accountable to the rule of law.”

Only one of the two leading presidential candidates appears willing to do that now.

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