"If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."
- Supreme Court Justice Robert H. Jackson, 1945 -
President Obama did something very good today in making public 4 documents from his predecessor's Justice Department which clearly authorized illegal acts of torture on foreign nationals we suspected of being terrorists. But he also made one of the most grievous mistakes ever made by a U.S. President when he had his own Justice Department declare it would not prosecute the individuals involved in implementing that torture, on the grounds that they were only following orders. In so doing he let stand unpunished flagrant U.S. violations of the Geneva Convention and effectively reset a precedent originating in the administration of the lawless George W. Bush administration. Yes, he effectively reinforced the notion that the U.S. government and its executive branch can engage in war crimes and ignore international treaties it signed and previously followed, whenever and wherever it feels like it. That is unconscionable.
Obama, to his credit, said publicly his administration would not engage in such actions in the future. That is fine and dandy. But this failure to prosecute the guilty perpetrators of heinous crimes, and his stated intention to not even investigate or prosecute their superiors, is unforgivable and foolish. By sweeping these offenses under the rug, Obama has done nothing to ensure a future administration will not repeat or expand on them. And he has effectively told the world that the United States will basically thumb its nose at international law whenever it wants. How, then, can he expect other countries to follow international law, or refrain from torturing American prisoners? He has shown very, very poor judgment with this decision, and we can only hope he will reconsider and let justice prevail as it should. For by this twisted logic, no Nazi should have been convicted or punished at the Nuremberg Trials, as they were all merely "following orders." That defense did not work then, and nor should it now.
MSNBC's Keith Olbermann presented an especially accurate and eloquent "Special Comment" on this matter tonight which I repeat below. He does a far better job than I could ever hope to of presenting sound, reasoned logic on the errors of Obama's action today.
"As promised, a Special Comment now on the president's revelation of the re"mainder of this nightmare of Bush Administration torture memos. This President has gone where few before him, dared. The dirty laundry — illegal, un-American, self-defeating, self-destroying — is out for all to see.
Mr. Obama deserves our praise and our thanks for that. And yet he has gone but half-way. And, in this case, in far too many respects, half the distance is worse than standing still. Today, Mr. President, in acknowledging these science-fiction-like documents, you said that:
'This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke.'
'We have been through a dark and painful chapter in our history.
'But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.'
Mr. President, you are wrong. What you describe would be not 'spent energy' but catharsis.
Not 'blame laid,' but responsibility ascribed. You continued:
'Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.'
Indeed we must, Mr. President. And the forces of which you speak are the ones lingering — with pervasive stench — from the previous administration. Far more than a criminal stench, Sir. An immoral one. One we cannot let be re-created.
One, President Obama, it is your responsibility to make sure cannot be re-created. Forgive me for quoting from a Comment I offered the night before the inauguration. But this goes to the core of the President's commendable, but wholly naive, intention. This country has never 'moved forward with confidence'.without first cleansing itself of its mistaken past.
In point of fact, every effort to merely draw a line in the sand and declare the past dead has served only to keep the past alive and often to strengthen it. We "moved forward" with slavery in the Declaration of Independence and the Constitution. And four score and nine years later, we had buried 600,000 of our sons and brothers, in a Civil War.
After that war's ending, we 'moved forward' without the social restructuring — and protection of the rights of minorities — in the south. And a century later, we had not only not resolved anything, but black leaders were still being assassinated in our southern cities.
We 'moved forward' with Germany in the reconstruction of Europe after the First World War.
Nobody even arrested the German Kaiser, let alone conducted war crimes trials then. And 19 years later, there was an indescribably more evil Germany and a more heart-rending Second World War.
We 'moved forward' with the trusts of the early 1900s. And today, we are at the mercy of corporations too big to fail. We 'moved forward' with the Palmer Raids and got McCarthyism.
And we 'moved forward' with McCarthyism and got Watergate. We 'moved forward' with Watergate and junior members of the Ford administration realized how little was ultimately at risk.
They grew up to be Paul Wolfowitz and Donald Rumsfeld and Dick Cheney. But, Mr. President, when you say we must "come together on behalf of our common future" you are entirely correct. We must focus on getting things right in the future, as opposed to looking at what we got wrong in the past.
That means prosecuting all those involved in the Bush administration's torture of prisoners, even if the results are nominal punishments, or merely new laws. Your only other option is to let this set and fester indefinitely. Because, Sir, some day there will be another Republican president, or even a Democrat just as blind as Mr. Bush to ethics and this country's moral force. And he will look back to what you did about Mr. Bush. Or what you did not do.
And he will see precedent. Or as Cheney saw, he will see how not to get caught next time. Prosecute, Mr. President. Even if you get not one conviction, you will still have accomplished good for generations unborn. Merely by acting, you will deny a further wrong — that this construction will enter the history books: Torture was legal. It worked. It saved the country.
The end. This must not be. 'It is our intention,' you said today, 'to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.' Mr. President, you are making history's easiest, most often made, most dangerous mistake — you are accepting the defense that somebody was 'just following orders.' At the end of his first year in office, Mr. Lincoln tried to contextualize the Civil War for those who still wanted to compromise with evils of secession and slavery. "The struggle of today," Lincoln wrote, 'is not altogether for today. It is for a vast future also.'
Mr. president, you have now been handed the beginning of that future. Use it to protect our children and our distant descendants from anything like this ever happening again — by showing them that those who did this, were neither unfairly scapegoated nor absolved. It is good to say 'we won't do it again.' It is not, however...enough."
Brilliantly stated, Mr. Olbermann. President Obama had the golden opportunity to fully repudiate and overturn a seriously immoral Bush administraction action. But he failed to do so. Instead, he reset a very, very bad precedent.