A Pragmatists Error

16 April 2009



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Obama Gives CIA Torturers a Pass

Earlier today, the Justice Department released four legal memos upon which the Bush administration relied to argue that its treatment of prisoners by the CIA was not illegal. The memos make for appalling reading, a national humiliation. It is clear that the purpose was to justify actions the Busheviks wanted to take, not to explain what the law would permit. As bad as that is, Mr. Obama has erred dangerously in stating that no CIA operative or contractor who followed this legal advice will be prosecuted. It is a pragmatic move on his part that sadly offers up a bit of America's soul. It is his first big mistake.

In justifying the decision not to prosecute, the Obama administration took the pragmatic position that it would operationally undermine US intelligence in the future. This is most certainly true. If someone has the Justice Department's assurance that certain actions are legal, that ought to be good enough. However, that presumes that the Justice Department itself is not corrupted by political influences and gross negligence. Looking at it from a CIA man's perspective, having someone second guess actions that Justice had cleared is a good reason to look for another line of work. Moreover, other nations' intelligence communities are likely to be less cooperative if they know their people could face American justice.

Another pragmatic consideration is a legal precedent. John Wesley Dean III, former Nixon White House counsel, pointed out that during Watergate two of the burglars had their convictions overturned on appeal. They had relied on E. Howard Hunt's assurance that they were engaged in a national security operations rather than a political crime. That assurance had less legal standing than a memo from Justice, so the argument is that current operations could be compromised and techniques revealed in a case that couldn't yield a conviction.

That said, the first memo dated August 1, 2002, discusses harsher treatment of Abu Zubaydah than he had received already. It mentions 10 techniques that would be considered assault by any city cop in the US like bouncing someone off a wall. They would be grounds for a lawsuit against any teacher engaged in actions like face slapping. Putting someone in a box filled with insects is right out of Room 101 in Orwell's 1984. And the memo not only mentions water boarding by name, it explains how to do it. It is more a course in operating the Lubyanka in the 1930s than an American prison.

While having outsiders second guess the practitioners of “harsh treatment” is counterproductive in many ways, a few prosecutions would at least create a mindset in the CIA and elsewhere that there are some orders that must not only be questioned but disobeyed. Otherwise, “I was just following orders” will become part of American legal defenses. What didn't work at Nuremberg ought not to work in a US courtroom.

Mr. Obama does have a few options to fix this mess. First, he ought to ensure that the memos and their background get fully investigated. Congress could help by holding televised hearings (call them show trials if it salves any consciences). Second, prosecution of Bush administration officials has got to become a realistic option. Third and finally, Mr. Obama's promise not to prosecute doesn't extend to anyone who went beyond the guidelines in these memos. It is known that dozens have died in US custody. One is willing to bet there is a case here that lets Mr. Obama keep his promise and still see justice done. It's just a matter of looking.

© Copyright 2009 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Fedora Linux.

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