At a reception I attended the other day a progressive acquaintance came up to me and said the left “must stop bashing Obama. Keep doing it and he will lose the election. We should be thankful for what we have.” I am not sure he thought that I was one who bashed Obama or he just wanted to get that message out in the community. As it happens I do not “bash Obama” whatever that means; but I am sharply critical of a number of his policies and practices and those of his administration. (This is not to say I would have preferred McCain to win; I would not have and on some issues, mostly very safe ones, Obama has made some difference, e.g. Ledbetter Fair Pay Act, ending the HIV exclusion.) I responded to my acquaintance: “It won’t be the criticism of progressives that will lose him the election—we hardly have that kind of power. It is his own actions especially around economic issues that could make his reelection difficult; actions that have alienated and angered significant segments of the unemployed American population. I don’t do my work by thinking about whether it will help or hurt Obama in the next election. I don’t tailor principles to politics.”

In arguing that we should mute our criticisms of Obama we are being asked to accept administration actions that are unacceptable; practices that will involve the deaths of thousands and the violation of our own constitution and binding treaties. I have always believed we must advocate and act on principle and that is the way to make change.  So when we see that Obama will continue the preventive detention scheme that underlies Guantanamo, that he will have detainees tried before military commissions, that he will continue the incommunicado detentions at Bagram and hide detainees from the Red Cross, we cannot and should not stand by in silence. We are seeing the continuation of Bush’s law and the deterioration of fundamental protections of freedom. When we see Obama hide illegal acts behind claims of “state secrets;” when he refuses to have the torture conspirators investigated and prosecuted; and when he even welcomes some of the conspirators into his administration, we must speak up. Granting impunity to officials who torture is to insure that we will again be a nation of torture and that the message heard by every petty dictator around the world is: “The United States can torture in the name of national security and so can we.”  When we see officials of this administration attack the Goldstone report which documents war crimes in Gaza, we understand the deep hypocrisy of this government.

Nor can there be any screaming that is too loud in opposition to the wars that Obama is continuing without end. The July 2011 beginning withdrawal date from Afghanistan was shown to be a fiction within an hour of Obama’s speech. Obama like those before him accepts that “We are the United States and war is what we do.” Obama and the Presidents before him are bleeding our country and world. Of course, I do not expect miracles from one man on top of a huge national security establishment that is hard to buck. Rome was not built in a day and neither will it be dismantled in a day. But I don’t see a lot of dismantling going on. What I see is more and more building of a national security state—perhaps with a softer hand—and that is alarming.

As I said when I began this piece I do not think progressive and liberal criticisms on most of these issues or other disappointments such as Obama’s failure to end “Don’t Ask, Don’t Tell” will have much affect the next Presidential election. Even the war probably won’t have much to do with who is our next President. Obama took a safe course, at least for himself and the next election: he gave the generals roughly what they asked for and the Republican Secretary of Defense, like the cat that ate the canary, is smugly satisfied.  

It seems likely to me that the economy will be Obama’s Waterloo. He has shoveled billions and billions into the big banks, and the wars and almost nothing into creating jobs and saving people’s homes.  Regarding the jobs meeting he convened to help with ideas about how to reduce unemployment, he said there are “limits to what government can do and should do,“ and that he was open to “responsible” and “demonstrably good” ideas to create jobs. I don’t think that is what the over 15 million unemployed in the country wanted to hear. They need jobs and they especially did not want to hear Obama say there was not going to be enough money to do it. The danger here is not just that Obama will lose the next election; but it’s one we have already begun to see: a right wing populism that often occurs in times of great economic dislocation, income disparities and joblessness.

We are at a time of great economic insecurity; a time when fundamental rights are under threat from our own government and a time when we are the world’s warriors. Silence or passive acquiescence is complicity. Enough already!  We can applaud Obama’s actions when they are right; we cannot and should not excuse or explain away his actions when they are wrong. If we don’t speak out, who will?

You may recall the case. The CIA was accused of a 2003 kidnapping of an Egyptian cleric, Abu Omar, from the streets of Milan, Italy. He was rendered to Egypt where he was tortured. A courageous Italian prosecutor, Armando Spataro, had been pursuing the case since that time over the objections of the Italian government. Luckily in Italy the prosecutors are independent of the political branches and Spataro, despite many attempted roadblocks, went ahead. Now the court has come down with convictions and jail sentences. Robert Seldon Lady, former CIA station chief in Milan got 8 years and 22 other Americans got 5 years. Utterly remarkable!  The only problem is none of the defendants showed up for trial and the Italy was unwilling to ask for their extradition.

Despite this, the convictions are really earth shattering news although the New York Times asserts they will have “little practical effect.”  Just ask the 23 convicted operatives if they agree with that sentiment. They are considered fugitives in 25 countries of the European Schengen area and subject to arrest. Upon arrest they will be sent to Italy to serve out their jail sentences. Already one of those convicted is suing the United States claiming she should have had received diplomatic immunity.(See list of 24 below.) And I wonder what those agents think about Stephen R. Kappes, who at the time of the kidnapping was the assistant director of the CIA’s clandestine branch and is said to have planned the rendition? He was not a defendant, having not been in Italy, but is currently Obama’s second ranking CIA official. So he is off the hook, at least for the moment, and can still enjoy Rome and Paris. So no wonder a U.S. spokesmen said the administration was “disappointed” in the verdicts.

Just think about the message these convictions send for the future even if these agents do not spend a day in jail. If you were a CIA agent, would you kidnap again? Would you waterboard?  This is why prosecutions work. They act as a deterrence. No matter what happens now, no matter what the Obama administration does to get rid of these convictions e.g. getting Italy to give clemency, a clear message has been sent.  Committing human rights atrocities even if done in the name of national security and for the most powerful state in the world does not give you immunity. I don’t think all such law breaking will cease, not by a long shot. However, the Italian courts have taken a powerful first step toward giving substance to the expression that no one is above the law.

The lesson the Obama administration should learn is that unless and until it holds U.S. officials accountable, other counties will.

The Schengen countries where U.S. officials will be arrested:

Austria Belgium Czech Republic Denmark Estonia Finland France Germany Greece Hungary Iceland Italy Latvia Lithuania Luxembourg Malta Netherlands Norway Poland Portugal Slovakia Slovenia Spain Sweden   Switzerland

Last week was a week of bad portents if we are trying to divine the direction of the Obama administration regarding some fundamental human rights questions, particularly regarding the treatment of detainees at Guantanamo.

One of Obama’s earliest acts was to order that Guantanamo be closed within one year. The executive order laid out three options as to how to deal with the remaining 245 detainees: try them, repatriate them or hold them in some other legal way.  We at CCR opposed a three option solution to Guantanamo. We believe there only two options: trials or repatriation. We oppose any form of preventive detention which is what Guantanamo is today. We oppose putting a legal wrapping on Guantanamo no matter where it is located or who does the wrapping. We remained hopeful that the third option, preventive detention, would not be a choice.   We may be losing that fight. On April 30^th Defense Secretary Gates said that as many as 100 Guantanamo detainees could end up held without trial in the United States.  A day before Attorney General Holder had this to say in Berlin:

“We have to determine what would be our basis for holding that person that would to the world appear to be fair and that would in fact be fair,” he said. “How could you ensure that due process was being served by the detention of such a person?”

The answer Mr. Holder is you can’t.  All the due process in the world does not diminish the fundamental human rights violation in jailing someone, possibly forever, without charging or convicting him of a crime.  Big Brother may be alive and well in the new administration.

As another one of his earliest acts Obama suspended the military commissions at Guantanamo. He did so for a period of four months.  It was better than letting them continue, but not much better. For what was to come after the four months?  At CCR we were worried. Why did he not end them, get rid of them all together? After all, they were entirely discredited. In seven years there were only two minor trials and evidence derived from abuse and torture was still permitted. Why should there be any kind of special courts in a democracy with a 225 year history of regular trials in regularly constituted courts—U.S. federal courts. The main reason for special courts is that it is easier to convict people when the rules are made up after the fact: the rules are bent toward conviction.

In a depressing and infuriating revelation in the New York Times on May 2, the revival of military commissions is stated as almost a sure thing.  The reason according to some administration lawyers is that it would be difficult to prosecute defendants in regular courts because they had been brutalized and because prosecutors want to use hearsay evidence. That is some reason. Let’s just put it starkly. Such trials would be an abomination, an abomination approved by our new President. 

Although not directly related to Guantanamo, but one that could have an effect on the issues outlined above is the appointment of a new Supreme Court justice. I was dismayed to read all of the verbiage coming out of pundits that he will choose a pragmatist and not a “larger than life liberal.” Let’s hope it is not true and let’s try to make sure it won’t come to pass. Why did the Republicans with too much Democratic support (no filibuster) have no trouble shoving two arch conservatives down our throats?  I don’t get it.

Michael Ratner is president of the Center for Constitutional Rights and author of “The Prosecution of Donald Rumsfeld: A Prosecution by Book.” Yes, it is good that President Obama ordered the release of four more of the torture memos issued by the Office of Legal Counsel during the Bush administration. The inhuman interrogation techniques those memos authorized which include waterboarding, walling (in which a person is slammed against a wall), confinement in a small box and sleep deprivation clearly constitute torture and other crimes under U.S. law. There is nothing abstract about the techniques: they are initially focused on one individual and even discuss his psychological weakness in language similar to the novel 1984 — although in this case, it’s bugs, not rats.

Since when did legal advice make torture into a lawful and permissible interrogation technique?

Yet President Obama goes out of his way to praise those who engaged in these unlawful practices and assures them they will not be prosecuted. In part, he asserts that the C.I.A. personnel were following, in good faith, legal advice. But since when did legal advice make torture into a lawful and permissible interrogation technique?

Torture is torture and all the legal window dressing in the world cannot hide its essence: the infliction of pain and suffering on human beings. If legal advice can protect torturers, no official anywhere can ever be prosecuted. Legal advice then becomes a get out-of-jail free card and will be employed by every petty dictatorship to protect its abusers.

In making the decision not to prosecute, President Obama is acting as jury, judge and prosecutor. It is not his decision to make. Whether or not to prosecute law breakers is not a political decision. Laws were broken and crimes were committed. If we are truly a nation of laws as he is fond of saying, a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law.

Prosecuting those involved in the torture program, particularly the officials who conceived, authorized and ordered the torture program is not “retribution” or “laying blame for the past” as President Obama says. It is about insuring that we will not again become a nation that employs in torture. The prohibition on torture should not be dependent on who is president or on the stroke of a pen. We prosecute those who break laws to deter lawbreaking. President Obama, by granting impunity to torturers, becomes complicit with their actions. History will not judge him kindly.

Excerpt of DN! Interview on “Truth Commissions.”    March 5, 2009    http://www.democracynow.org/2009/3/5/lawmakers_begin_debate_on_commission

AMY GOODMAN: Human rights attorney Michael Ratner joins us now in the firehouse studio, president of the Center for Constitutional Rights, author of the book The Trial of Donald Rumsfeld, among others.

Welcome to Democracy Now! I want to talk about the secret memos. Let’s start with this hearing that has been called by Patrick Leahy, chair of the Senate Judiciary Committee, calling for an investigation into Bush administration crimes.

MICHAEL RATNER: You know, I won’t say I’m exactly biased here, but I think essentially that the Leahy commission is an excuse for non-prosecution. It’s essentially saying, “Let’s put some stuff on the public record. Let’s immunize people. And then,” as he even said, “let’s turn the page and go forward.” That’s really an excuse for non-prosecution. And in the face of what we’ve seen in this country, which is essentially a coup d’etat, a presidential dictatorship and torture, it’s essentially a mouse-like reaction to what we’ve seen. And it’s being set up really by a liberal establishment that is really, in some ways, in many ways, on the same page as the establishment that actually carried out these laws. And it’s saying, “OK, let’s expose it, and then let’s move on.”

And he even says, he says what we’re going to do with the truth commission is we’re going to look and see what mistakes were made. I mean, just ask the hundred people who were tortured in the secret sites about what mistakes were made, or ask the 750 people at Guantanamo, or ask the people at Abu Ghraib. This is not about mistakes. This is about fundamental lawbreaking, about the disposal of the Constitution, and about the end of treaties. So I think, actually, that Leahy’s current proposal is extremely dangerous. I call it the lame commission or basically an excuse for non-prosecution.

JUAN GONZALEZ: And you think that there’s no essential difference between him and the Obama—the White House position at this point?

MICHAEL RATNER: You know, I don’t think he would be out there without the Obama administration at least saying this is maybe a way to go. Look at, there’s a lot of pressure in this country right now for prosecutions. I mean, the polls indicate that people want to see a criminal investigation. We’ve had open—open and notorious admissions of waterboarding by people like Cheney. And we know that waterboarding is torture, even according to Obama.

So, how do you diffuse that pressure? And one way you diffuse it is you set up a, quote, “truth commission” that’s going to give immunity to people. And then, as Leahy himself says—the word he used, I think, is that he objects to those “fixated” on prosecution. Well, you know, it’s a legal requirement that you prosecute torturers in your country. And yet, he calls us “fixated” on it and wants to make this excuse. So I think this is, in a way—you don’t know this—but in conjunction with the Obama administration saying, “Let’s do this. It will dispose of, you know, the human rights groups in the world and others. And let’s go forward.”

JUAN GONZALEZ: And your assessment of these latest memos that the Justice Department has released, in terms of the further proof that they show possible criminal actions?

MICHAEL RATNER: I’m glad you said that, Juan, “further proof,” because, you know, we’ve known a lot of this from the beginning. You know, I remember, actually, six weeks after 9/11 writing an article called “Moving Toward a Police State (Or Have We Arrived?)” And we’ve certainly seen the effects of these memos. We’ve seen the military arrest Jose Padilla in the United States. We’ve seen them do that to al-Marri. We’ve seen torture. We’ve seen secret sites. We’ve seen warrantless wiretapping.

But what we see in these memos—and I recommend them to everybody, because you read these, you are seeing essentially the legal underpinnings of a police state or a dictatorship of the president. There’s no doubt about it. That’s what it is, and it’s not theoretical. These were the actual building blocks of what we had in this country for eight years, in which—and the one you mentioned when we opened, Juan, that what happened here was one of these memos said the military could operate in the United States, and operate in the United States despite the Posse Comitatus law, which prohibits the military from operating in the United States. And when it operates—this is really extraordinary—they can arrest and detain—“arrest” is not the right word—kidnap anyone they want and send them to a detention place anywhere in the world without any kind of law.

And then, on top of that, they can disregard the First Amendment. So this conversation we’re having right now, they could say, “Well, this is harmful to the national security of the United States”—that’s what these memos say—“this type of conversation is harmful, and we can ban this conversation.” And then they could put the military at the door to the firehouse and come in and say the Fourth Amendment, the one that protects us against unlawful searches, that the military could walk in here, search all of us and see if we have anything they don’t like on us. So, no First Amendment, no Fourth Amendment, no Fifth Amendment—essentially, the end of the Constitution and 225 years of constitutional history. In the face of this, this kind of memo, we’re seeing Leahy say, “Let’s see what kind of mistakes were made.”

AMY GOODMAN: Why was Posse Comitatus first put into effect, first passed?

MICHAEL RATNER: You know, that’s a good question. I don’t remember, Amy. It’s unfortunate I don’t remember. But it had to do—it goes back to our constitutional—the original convention, I mean, the original Constitution, that one of the biggest fears is that you don’t want the military operating in a democracy, because the military is not trained in constitutional rights. They’re trained to go in and kill and destroy, and that’s what they do in a country. And so, it was really—it came out of really the amendments that said you can’t quarter soldiers in your houses, all those kind—that kind of push that we don’t want the military enforcing law in this country.

AMY GOODMAN: Go on through the memos that have now been released.

MICHAEL RATNER: Well, I said that the key memo is this one that we’ve been discussing, this one that the military can operate in the United States. I mean, as I said, that’s really—you know, I used to talk about Fuehrer’s law when I talked about the President. Everybody thought I’m exaggerating. Fuehrer’s law is what the Fuehrer, Hitler, said; that’s the law. And what these memos do is essentially say that what Bush says is the law. So that’s memo number one.

There’s another memo here on extraordinary rendition. We’ve discussed it here before. That’s where you send people overseas for torture. You nab them or grab them in Pakistan or Afghanistan, send them to another country where it’s more likely than not where they’ll be tortured. And these memos go through why that may—the argument they make is that that’s not against the law, that the Convention Against Torture doesn’t apply and the anti-torture statute, you know, can be avoided by not having the intent to carry out torture. So they essentially authorize sending people—sending people for torture.

Then, two of the memos—and this is pretty interesting—actually concerned Jose Padilla. Jose Padilla, you remember, got off the plane in Chicago, the so-called dirty bomber, never charged with that, and when he’s in the prison, the military comes to the prison door. They knock. Maybe they knock. And they say, “Give us Jose Padilla.” And they grab him. This is in America. This is in the United States. And they take him, and for five years they put him in a military brig. Two of the memos justify and say the President had the power to do that to Jose Padilla, an American citizen living in the United States, that the military could come in—could come in and get him.

Then, a couple of these memos go to what—parts that we haven’t yet seen exposed, which I think will be a broad and vast intelligence effort in the United States, surveillance effort, done by the Department of Defense, under the auspices of these memos, to essentially surveil and look into what all of us are doing in the United States. That hasn’t come out yet completely, but it’s going to be in these memos.

And there’s another memo on the warrantless wiretapping that essentially says the commander-in-chief can carry out warrantless wiretapping as his commander-in-chief power.

And let’s look at what these memos were built on. You know, first you have the question of, are we at war at all? So, first you have this questionable proposition, this questionable proposition that the war against al-Qaeda, so-called war against al-Qaeda, or the global war on terror, is a war at all. Or shouldn’t this be really a legal operation in which people are arrested and charged? So, my position, of course, is this should have been done under law. But so, they first make a questionable assumption about war, and then, once they call it a war, they then say, “Well, the President’s the commander-in-chief, and under war, commander-in-chief power, he can do whatever he wants.” So even if this had been the Second World War, he couldn’t have the power that he’s asserting here.

I have to say that, you know, to see these memos, to put it into that they were actually instrumentalized—this is not just theoretical; this is what was happening here for eight years, essentially a dictatorship—and then to see the response of many of the Democrats here to saying, “Oh, let’s just expose it and turn the page,” I mean, what we’re saying is that’s the way it’s going to happen again, because unless you prosecute people, there is no deterrence for not doing this again. And it’s out there, it’s public. If you’re going to do a commission—and I’m opposed completely to the Leahy type—if you’re going to do one, you can’t bury the issue of prosecution. You have to appoint a special prosecutor and make sure a commission of inquiry works together, because a commission can tear up and finish up prosecutions by giving immunity.

JUAN GONZALEZ: And Michael, the prime author of these memos, John Yoo, what happened to him? He went back for awhile, left the Bush administration, went back to Berkeley, law school, to teach. What’s happened with him since?

MICHAEL RATNER: Well, first of all, I think that these memos, these most recent ones, shred any semblance, any scintilla of reputation that John Yoo ever had that he was, you know, doing something in essentially an honest way. I mean, this finishes his reputation. I think the only—the questions we’re faced with are, is he going to be disbarred, and is he going to be prosecuted?

And it’s interesting. You know, two of the memos, which I didn’t mention, were issued by Steven Bradbury, who was head of the office that John Yoo was formerly in, the Office of Legal Counsel. And those memos are the—they were done within a few weeks of the Bush administration leaving office, in fact, one within a week of him leaving office, essentially, in a relatively mealy-mouthed way, saying he cautions against looking at the Yoo memos, that they shouldn’t—the OLC doesn’t really agree with them anymore. But he has a footnote in there saying—to protect the John Yoos of the world—saying, “I think all of those prior memos,” referring to the John Yoo memos, “were done—did not violate professional responsibility,” because it’s recognized that currently there’s an investigation going on of John Yoo, and I think it’s very—and Bradbury, himself—and I think it’s very likely that that’s going to come out and say certainly disciplinary, if not disbarment, for those guys. So I think Yoo is facing that and, as I said, prosecution.

Now, his geographical travels, of course, have been—as you said, he went to Berkeley, which, as he described a couple of days ago at a speech in Orange County, is made up of a bunch of hippies and radicals. That’s his former law school, or it’s still his law school. And there’s been a push to get rid of him at the law school. I think he finally realizes he can’t stay there, so he’s teaching at some—I guess a very conservative law school in Orange County, which is, of course, the heart of law schools and others that are very conservative. So he’s slowly being cornered, slowly being cornered.

One thing I should say about Yoo and even about the Leahy hearings, the one—you know, while I think they’re a bad idea, I think one thing that could come out of them, which Rivkin, the conservative commentator, made a good point on—he says, “Look at, you’re going to expose the stuff on the record.” And then, while he didn’t use the name of the Center for Constitutional Rights, he said, “Then people are going to be able to prosecute these guys in Europe, because the evidence is all out there.” And that’s correct. As more and more information comes out and these memos come out, we’re going to continue to pursue efforts in Europe and pursue prosecution at home. The Center actually currently has a campaign, if people go to our website, to actually tell Leahy, “This is not enough. We want prosecution.”

AMY GOODMAN: Where is Donald Rumsfeld?

MICHAEL RATNER: Well, you know, he and Rice, right? They’re—you know, what is California? What is it? Like a magnet for right-wingers? You know, they’re both at the—what is it now?—on the campus of Stanford. What’s it called? The Hoover Institution? Yeah. So they’re there, or they’re going there, Rice and Rumsfeld, and they’re going to be some kind of scholars-in-residence at Stanford at the Hoover Institution. And there’s apparently a protest that was starting either yesterday or today objecting to that. So, you know, maybe we can all get them into a corner of Orange County and actually give them their own country and just put prison walls around it. You know, I’m not sure, Amy.

AMY GOODMAN: And are there other countries that are pursuing a possible prosecution against any of these Bush administration officials?

MICHAEL RATNER: Well, I think right now what’s happening is they’re going to wait and see what Obama does. If Obama doesn’t do anything in the next few months, I think there’s going to be a huge push in Europe. At the same time, there is stuff going on in Europe, and that’s—when there’s conduct or illegalities on the country itself, they don’t have to wait for the United States. So, you have an investigation, that we’ve talked about here, in Italy of the CIA agents going on who kidnapped an Egyptian cleric of the street. In Spain, you have a—

AMY GOODMAN: Explain that. You have CIA officers being tried in absentia in Italy.

MICHAEL RATNER: That’s correct. There were twenty-four CIA officers involved in a conspiracy to kidnap an Egyptian cleric off the streets of Milan. There’s an independent prosecutor in Italy who has been running a trial now for probably a year or more, in which testimony is being taken on what those CIA agents have done. I think there’s arrest warrants issued for a number of those people throughout Europe. So that’s one relatively successful effort in Italy. And again, if you look at it, they actually kidnapped someone and violated the sovereignty of Italy, so they went after them.

Spain, likewise, has an investigation going on with a court, a judge, because the rendition flights landed in Majorca, they landed in Spain. And so, Spain looked, and its territory has been violated. So that’s going on.

But I think, overall, what we’re seeing here is—I mean, from my perspective, we’re seeing actually more push for prosecutions than I actually expected, that the American public, it seems, is not really giving the sort of Obama line, “Let’s look forward and not backward.” Of course, to me, prosecutions is looking forward, because that’s how you prevent torture in the future. So I think we’re seeing a much greater push. I do think, though, that, as I want to say, that the combination of the memos and Leahy should just really send a message to America that we’ve got to make these guys accountable.

JUAN GONZALEZ: What about the—do you have any hopes for any more independent investigations going on in the House at all? Or in—

MICHAEL RATNER: Oh, I think that’s a good question. You know, I think Conyers has a better take on this than Leahy. Conyers does want a commission or an investigation set up, but his material also talks about accountability and prosecutions. I think if you had a commission here—not a commission; I would never call this a truth commission. I mean, this is not—this is not South Africa. This is not, you know, an emerging democracy from, you know, Chile or something. This is—supposedly was a functioning democracy. In that case, you don’t need, quote, “a truth commission.” What you need is a commission of inquiry that’s going to lead to prosecutions. And I think that’s much more what Conyers is looking for. I’m sure he’s in favor of prosecutions. And, you know, there’s a huge effort, a grassroots effort, out there, as petitions—hundreds of thousands of people have signed this stuff.

This is a response to Scott Horton’s December Harpers Piece “Justice After Bush, Prosecuting an Outlaw Administration.” Horton concludes that a Commission of Inquiry or Truth Commission is the right approach.  I think he is wrong and that he and others ought to be demanding a criminal investigation and prosecution of the Torture Conspirators. My conclusion has been recently bolstered by Cheney’s confession of his involvement in approving waterboarding and his boast that he would do it again. In these circumstances, it is obvious that prosecution is necessary to deter torture in the future. To do otherwise is to grant impunity.  The letter, parts of which will appear in Harpers, is set forth below.

********

The December Harper’s Cover promises a lot:  Bush, Cheney and Rumsfeld are behind bars. Prominently displayed under the prisoners is the title of Scott Horton’s article “Justice After Bush, Prosecuting an Outlaw Administration.”   I was excited.  I thought I was about to read the case for prosecuting high level administration officials for the torture program. 

Alas, it was not to be.  Prosecutions are given only lip service while the bulk of the article argues for a truth commission/commission of inquiry. A commission will not do what is necessary to end torture now and in the future: make it clear, just as we do in cases with the most minor offenses, that actions have consequences.   A failure to initiate a criminal investigation of the torture program will only encourage future law breaking by sending a message of impunity. The message that we need to send is that the torture conspirators will be held accountable. That is the only way to fulfill Obama’s promise:  “I have said repeatedly that America doesn’t torture. And I’m going to make sure that we don’t torture.”

What is surprising in Horton’s article is the disconnect between the first half which is one of the strongest pieces I have read about the lawlessness of the Bush administration and the latter half where he sets up a complex and unworkable commission. The articles opening paragraphs scream out the necessity for prosecutions.  Horton states that no other administration has been “so systematically or brazenly lawless;” that torture is the crime that “calls most clearly calls for prosecution;” and that it is the “most likely to be successfully prosecuted.” In one of his most important observations Horton states that the administration “waged war against the law itself,” and that the ruler claimed that it “was the law.”  This recognition is critical. It means that no matter how many executive orders and new prohibitions on torture are enacted, a future administration can reassert Bush’s claim that the President is above the law. The prohibitions will be for naught as will the conclusions of a commission. This is a key reason why the deterrence that results from prosecutions is necessary. Never again should we have an executive who claims to be above the law. 

Horton’s conclusions regarding the criminality of this administration are well documented in administration memos, FOIA documents, congressional hearings, the testimony of victims, and book after book. Recently, a bipartisan report of the Senate Armed Services Committee concluded that Rumsfeld and other high administration officials were directly responsible for the abuse of detainees. The key torture conspirators are well known: Bush, Cheney, Tenet, Rumsfeld, other members of the National Security Council’s Principals Committee and the lawyers who constituted the War Council: Addington, Gonzales, Yoo, Haynes.  As Major Gen. Antonio M. Taguba, who investigated the Abu Gharib scandal for the Pentagon declared:  “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Why then after running through various possibilities for accountability does Horton land on a commission as the best method for investigating and deterring lawlessness in the future?  He says it is “clear” this is the best option “given the political situation in the United States.”  In other words, it is a choice based upon political efficacy not on the best way to hold the torture conspirators accountable and prevent torture in the future.  Horton admits that a commission cannot provide “justice.”  However, to be fair, he does say that it might be a two step process of a commission first and then a special prosecutor—although he barely discusses this second step.

This is the wrong way to go about ending torture.  If the appointment of a special prosecutor is what is required then that is what we must demand. The political situation is not static. We should not be tailoring what we think is right to what Obama or his advisors currently may have in mind. Their positions can shift, but will not unless we make our voices heard. Had Horton and the others who have been writing and speaking on this subject called first and loudly for a special prosecutor we would be closer to that goal. That goal is not futile. When the Armed Services Committee issued its report, Senator Levin called for holding the abusers responsible: “But I would hope that the new administration, as well as the Defense Department…would look for ways, where appropriate, to  hold people accountable. It is time for a lot of those focusing primarily on commissions to catch up with Senator Levin. This is also a lesson for all of us going forward in dealing with the Obama administration on other issues. We should not be negotiating with ourselves. We must insist on what is principled and necessary.

(The question of domestic prosecutions could be a moot point if the President gives a generic pardon to unnamed officials who may have violated the law including himself. The pardon’s validity can be challenged on various grounds e.g. international law forbids pardoning war crimes and torture. If we lost the challenge, a commission would be the only alternative in the U.S. However, pardons are not valid internationally. The fact that there could no longer be prosecutions in the U.S. would make prosecutions in Europe all the more likely.)

One question to ask is whether the commission model is even appropriate. This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor to determine whether crimes were committed.

An examination of Horton’s proposal for a commission demonstrates that it is unworkable, unlikely to lead to accountability and will not lead to prosecution of the torture conspirators. He builds a complex super structure that begins with the appointment of party affiliated co-chairs. That is the beginning of the end. The Republicans are unlikely to go after key people in their own party and sadly many Democrats knew about and failed to stand up against the torture program.  These co-chairs along with the balance of the commissioners will be chosen, as was the 9/11 commission, by the speaker of the House, the Senate majority leader and minority leaders in both houses.  How is this ever going to work? Nancy Pelosi, the speaker, was briefed on CIA water boarding and secret sites. At the time she failed to object. Horton seems to understand this problem and suggests a qualifications commission that would recommend candidates to Pelosi et al. Nowhere does he say how that commission would be chosen and, of course, under his scheme there is no way to free it from the taint of protecting the torturers.  

Among many other problems, one other is striking. Horton acknowledges that subpoena power is necessary to gather the information for the commission’s report and says obtaining that power is a complex one. He never mentions the Fifth Amendment’s protection against self-incrimination. That could stop any testimony by the key conspirators. Granting immunity for that testimony, assuming the commission could ever do that, which is dubious, would be granting impunity. (Although not related to a commission vs. criminal prosecutions, Horton limits the commission to the treatment of detainees connected to the Authorization to Use Military Force Against Terrorists. That is too narrow and would exclude torture carried out in Iraq under a different war authorization.)

I can probably write the conclusion of a commission as suggested by Horton, although I would hope I am wrong. The paragraph below will give a flavor of what we can expect (with of course some recommendations tossed in e.g. Office of Legal Counsel should be protected from political pressure):

“We must look at the decisions of administration officials in the context in which they were made. The attacks of 9/11 were unprecedented. There was fear throughout the country; fear of the next attack, fear of sleeper cells and fear of anthrax and its potential to kill millions.  The administration acting with the best of intentions and in good faith did all in their power to insure the safety of America. At times, because of the nature of the threat, they did not adhere fully to prohibitions embodied in law.  This was unfortunate. However, there was never any intent to violate the law. While this sad episode should not be repeated we do not believe the actions of officials warrant criminal prosecution.”

A commission does have some positive aspects including an investigation and public airing of how the torture program was planned and carried out. However, much of this will be repetitious of what has already been revealed especially by the bipartisan Senate Armed Services Committee.  It is true that the Senate committee did not cover the entire program. For example, because of refusals by the CIA, it was unable to examine the heinous torture program at secret sites. That is important to do. However, if a bipartisan senate committee with subpoena power could not do it, no commission will. In general, a commission will be limited by classified material and the refusal of the key officials to testify.  There can be fewer such excuses in a criminal investigation. A trial also has a public education function and one that is far more dramatic and important than will occur at a commission. Just imagine if there had been no Nuremberg trials, but only commissions. Nuremberg is important because it served justice and memory. It drew a clear, bright line that sent a warning to officials in the future. That is what we need today

One of Barack Obama’s first acts as president should be to instruct his attorney general to appoint an independent prosecutor to initiate a criminal investigation of former Bush Administration officials who gave the green light to torture.

At Obama’s press conference on Dec. 1, he spoke of upholding America’s highest values as he introduced Eric Holder as his choice for attorney general. Holder insisted there was no tension between protecting the people of the United States and adhering to our Constitution.

A few months ago, Holder was even more explicit. “Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution,” he said. “We owe t he American people a reckoning.”

The day of reckoning is fast upon us.

If Obama and Holder want to adhere to our Constitution and uphold our highest values, they must pursue those in the Bush Administration who violated that Constitution, broke our laws, and tarnished our values.

Read the words of Lt. Gen. Antonio M. Taguba, who investigated the Abu Ghraib scandal for the Pentagon. “There is no longer any doubt as to whether the current administration has committed war crimes,” he concluded. “The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Despite Taguba’s words and reams of documentation supporting his statement, there has been little discussion about holding officials accountable for their design and implementation of the torture program.

We need to make it clear, just as we do in cases with the most minor offenses, that actions have consequences. To simply let those officials walk off the stage sends a message of impunity that will only encourage future law breaking. The message that we need to send is that they will be held accountable.

A popular refrain in Washington these days is that criminal prosecutions would be an unnecessary look backward. Some argue that in order for the new administration to move forward, presidential pardons should be granted and a Truth Commission assembled to investigate the circumstances that gave rise to the brutal interrogations and deaths of prisoners in Afghanistan, Iraq, Guantanamo Bay and CIA black sites around the world.

But pardons would be the final refuge for an administration whose egregious violations of human rights have, for all too long, gone unpunished. And a Truth Commission is not applicable.

This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor and not the pundits to determine whether crimes were committed.

Criminal prosecutions are not about looking to the past; they are about creating a future world without torture. They will be the mark of the new dawn of America’s leadership and our new era of accountability.

Prosecuting these officials would help the United States regain its moral standing in the world and to prove our commitment to upholding international human rights standards.

In his first nationally televised interview, President-elect Barack Obama made this promise: “I have said repeatedly that America doesn’t torture. And I’m going to make sure that we don’t torture.”

The best way to do that is to prosecute those who designed the torture policies.

Copyright 2008 The Progressive Magazine

Michael Ratner is president of the Center for Constitutional Rights and author of “The Trial of Donald Rumsfeld: A Prosecution by Book.”

http://www.commondreams.org/view/2008/12/04-8

http://www.law.georgetown.edu/webcast/eventDetail.cfm?eventID=672

Webcast — On War Crimes and Torture: Should High Government Officials Be Investigated and Prosecuted?

(excerpted from Realnews.com)

    The outrage is that the Canadians removed the United States and Guantanamo from a list of countries and places where the use of torture could be suspected on persons in custody. They did so only because they U.S. objected.  It was a craven act and calls into question the rule of law in Canada, their independence and their commitment to fight against torture.

The matter arose because of a 92-page booklet that the Canadians use to train their diplomats on how to make sure they are aware of torture when those diplomats visit Canadians in custody in foreign countries. The booklet is in large part based on evidence from Guantanamo and the Maher Arar case (he was the Canadian sent by the US for torture in Syria).

In addition to naming countries the manual lists a certain number of techniques that it considers torture. Of course, if you go down that list, it’s hooding, stripping, blindfolds, sleep deprivation, isolation– not even the worst things that the US is doing e.g.waterboarding—but still  torture. Those essentially line up with what the US has authorized for use in Guantanamo and very likely were used against the Canadian citizen that remains in Guantanamo, Omar Khadr.

One reason it’s really important, I think, for the Canadians to keep both the US and Guantanamo Bay on the list is, first of all, there’s a Canadian citizen right now in Guantanamo, Omar Khadr. And there’s also other Canadian citizens and residents who may or may not be picked up in the so-called 9/11 wars. And what Canada did here was really—I mean, I’m really in shock. I already thought—at least I’ve always thought that Canada had a semblance of democracy and of genuineness around these issues of torture, particularly after the Arar case. And what they apparently did here was, as soon as they got a complaint from the United States, that the United States didn’t want to be on the list of countries that might possibly be involved in torture, within one day, 24 hours as far as I can tell, they took the name, or they’re apparently taking the name of the United States and Guantanamo off the list, along with the name of Israel as well.

What’s really shocking to me, just shocking, is that it’s the Arar case, the Maher Arar case, where Canada acknowledged that it had wrongly cooperated with the United States, and its diplomats supposedly hadn’t noticed that Arar had been tortured, that was a principal reason for placing the U.S. on the list. . And this entire module that the Foreign Affairs was using to train its diplomats is really because of the Arar case and the recommendations of the commission that looked into the Arar case.

 The US is just being removed from the list by the stroke of a Canadian pen. . I mean, there should be just people in Canada screaming at the government about this, just screaming. It’s pretty amazing that the United States ambassador picks up the phone or says something publicly and is able to essentially change what the truth is, basically change the facts, and say despite the fact that you know about Iraq, that you know about Khadr in Guantanamo, that you know about Arar, or you know torture was an everyday technique used for interrogation in Guantanamo, that with one phone call Canada would just fold.

 Canada had been a bit of an example, sort of heroic for us in the United States, that our northern neighbor who finally had protected one of its  citizens, at least Arar—although it didn’t protect Arar initially—and had engaged in  a serious public inquiry. Then it put a lie to all its efforts by folding at the behest of the U.S.

 Well, we’ve known for a long time that the United States is engaged in torture. I mean, it’s public, and they actually probably want the world to know, because they’re using it as a technique of terror. We have all the documents, we have the Rumsfeld techniques; we have all the testimony of the tortured. But the fact that another country and an ally of the United States, in fact one of our closest allies, Canada, had actually labeled the United States as a place you have to look to for torture and Guantanamo as a place you have to look as well, may help the political process of impeachment and accountability in the United States for the torture program.

However, the collapse of the Canadians on torture, which is starring us all in the face, is a sad day for all of us.

THE WHISTLEBLOWER: We mourn the passing of Philip Agee, the courageous former CIA officer who, in his 1975 book Inside the Company: CIA Diary, exposed the agency’s subversion of democracy and its practices of torture and murder, naming hundreds of officers, agents and companies involved with the crimes. Agee was motivated, he said, by the CIA’s support for “the worst imaginable horrors” in Latin America. Agee paid a high price for his courage. He became a permanent target of the US government, and his passport was revoked. Driven out of Britain, where his book was first published, he was denied a safe haven in many other Western European countries. He was issued a passport by the revolutionary government of Grenada; when that government was overthrown, the Nicaraguans stepped forward. After the Sandinistas lost power, he was granted a passport by Germany, where he lived with his wife, Giselle Roberge Agee, a ballerina. Agee co-edited (with Louis Wolf) a book further exposing undercover plots and agents–Dirty Work: The CIA in Western Europe. He collaborated closely with Covert Action Information Bulletin, a magazine devoted to stopping criminal CIA activities. That work ended publicly, at least in the United States, with the passage in 1982 of the Intelligence Identities Protection Act–aimed, as one Congressman said, at “the Philip Agees of the world.” Perhaps the best way to remember Agee is to support others who find the courage to expose criminal misconduct by their own governments.   MICHAEL RATNER, Nation Magazine