Friday, April 24, 2009

The Elephant in the Room EVERYONE Is Talking About

The elephant in the room everyone is talking about is torture.

I've gone back and forth regarding the previous administration's use of waterboarding in obtaining intelligence and Obama's actions and words on the issue. (Is waterboarding torture? Ask Christopher Hitchens. Or John McCain.)

First, a brief preface: For a campaign and administration that so closely monitored and monitors the focus of its message and talking points on most every other issue, the lack of clarity and focus of the message regarding torture is confusing. Perhaps the message has been unfocused precisely because it is such a difficult issue with which to deal.

Regarding how the Obama administration has handled the torture question let me begin by stating that I believe it was a mistake for the administration to release previously classified memos regarding torture written during the previous administration. To do so sets a dangerous precedent. What will the next administration release that's damaging to the current? Furthermore, what was to be gained by releasing the memos? If Obama truly does not want to prosecute those responsible then the release was a monumental miscalculation. The release of the memos has only fanned partisan flames on the left and right. And to what end? Does anyone really believe that those that authorized the use of waterboarding will be legally held accountable? What about those that wrote the memos that supported the decision to use waterboarding? Or those that actually waterboarded detainees?

Or if they do want to prosecute those responsible where do you start and end? Those that waterboarded detainees were just following orders but, that hasn't been a good defense in quite a while (however, there has been an attempt to grant immunity to those that used "aggressive interrogation techniques" before it was declared illegal). Those that put together the memos? Keep in mind that I'm guessing the lawyers that wrote these memos were probably told by someone much higher on the food chain to write something for the administration to hang its hat on if the legality of waterboarding or other "aggressive interrogation techniques"(a.k.a torture) was ever investigated. Plus, this is a lesson for future White House attorneys, anytime anyone wants you to write a memo to give legal creedence to what they're already doing or about to do, think twice. Would they want and/or need a memo if legality wasn't an issue? In other words, if you're a lawyer, don't put stuff in writing that could get you in trouble later. And what about prosecuting those that authorized waterboarding? Keep in mind that those that approved or at the very least knew of waterboarding included House and Senate Democrats, such as Pelosi, as far back as 2002. And what about people like Condolezza Rice, Dick Cheney, Rumsfeld or even President Bush, are they some of the officials that requested the memos? All that said, it would be difficult, to say the least, to prosecute anyone in the previous administration.

The release of the memos and the insistence that waterboarding helped gain valuable intelligence by the previous administration (Cheney) may make future investigation inevitable. I wonder if Cheney calling out the Obama administration as weak on terror not even 100 days in had anything to do with the memos being released? The release of the memos perhaps was a way of demonstrating to the world what Cheney and the previous administration thought being strong on terror meant, being strong meant waterboarding detainees, some 183 times. Just speculation.

There are more finely acute questions that could be explored more closely. For example, if there was any question as to whether waterboarding is torture and/or illegal that question was presumably answered in 2006. In 2006 the Congress (and then the Supreme Court agreed) voted and said waterboarding is torture and illegal. Case closed, end of story right? Wrong. After Congress and the Supreme Court declared waterboarding torture and illegal the Bush administration declared that waterboarding and other coercive interrogation techniques could still be used (it's not clear if the coercive interrogation techniques were indeed used after the 2006 legislation, just that the administration thought they could be used). In doing so the Bush administration ignored the authority of Congress and the Supreme Court and flaunted its rogue, self declared expansion of executive powers. The Bush Administration, true to form, would decide what legislation to follow and how to interpret the law and it decided that the legislation didn't apply, ignoring the separation of powers.

I write "true to form" because the Bush administration had already decided, unilaterally and without authority from Congress or the Supreme Court, that it didn't need warrants to spy in the U.S. Previously the Bush Administration would seek a warrant from a special, secret court. That secret court had granted wiretap warrants for spying in the U.S. to the previous 5 administrations, including during the Cold War. This top secret court would even retroactively grant warrants, meaning that the Bush administration could start wiretapping and then seek a warrant. That wasn't good enough for the Bush administration. When the Bush administration's bypassing of the secret court came to light one of the judges of the court resigned in protest. To be clear, the Bush administration decided it didn't need warrants to spy in the United States. The courts eventually disagreed. But, I digress.

As horrid as the past administration's usage of "aggressive interrogation techniques" may have been, in my opinion, it's time to move forward. Why? I don't recall any previous administration's actions being the subject of prosecution or congressional review after that administration had left office. There's no precedent for it. Furthermore, this issue, in my opinion, is an old one to most. The populace is past it or at the very least wants to be past it. Moreover, prosecuting officials from the previous administration may be barred by laws passed as recently as 2006 and otherwise, prosecution would be extremely difficult. Lastly, there's another good reason to move forward. Because it may turn into a witch hunt and witch hunts don't end well. Innocents are usually accused and become victims. Witch hunts consume not only those accused but also the accusers.

But that's just my opinion and that's all it is, an opinion. Others have their own opinions. It's not my decision whether to prosecute or not, or if the U.S. is going to prosecute, who. President Obama will have well formulated reasons no matter which way he comes down on this decision. But it may be a no win situation/decision. If he chooses not to prosecute someone/anyone, some (the left), will say that he's not even attempting to seek justice. If he chooses to prosecute, some (the right), will say that he's doing so for political reasons and should be mindful because they have long memories and he'll eventually leave office or may not have both the House and Senate on his side. Obama says it's the Attorney General's decision but, last I checked the Attorney General serves the President, so I'd consider it still President Obama's decision, and I don't envy him it.

Lastly, and most problematic to me, is that the mantras after 9/11 emanating from the previous administration were, to paraphrase, that "we cannot let the terrorists win", that "the terrorists want to make us afraid" and that they "hate our freedom". How does the executive branch ignoring the other branches of government, unilaterally deciding what is and isn't the law and interpreting the law to its own liking "defeat the terrorists" or make us "unafraid" or preserve our freedom? The Bush administration ignored the rule of law. We should not forget that or let it happen again.

The United States is, or at least should strive to be, "a nation of laws not men". People throw that quote around all the time. What does that quote mean? It's supposed to mean that those in power are not to bend or break laws to serve or suit their desires or will, no matter how well intentioned that desire or will may be. The previous administration may have forgotten what type of nation we are, a nation of laws, not feeble, fallible, ordinary people.

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