justice-1Obama is to be commended for releasing the memos on torture from Bush administration officials.  He met stiff resistance from those who thought we would be safer if we hid our dirty laundry, which in fact most of the world is already well aware of.  On the other hand, Obama has been rightly challenged for his refusal to support the investigation of those who actually did the torturing.  Yet it can be argued that the release of the documents will, in the end, help to create the political will to go after the Justice Department officials who lent their legal “counsel” to rationalizing torture.  One can only hope that this is Obama’s strategy and that he did not actually mean what he said:  we must let the past go in order to move ahead.  (This could well be Obama’s Achilles heal, that is, he may actually be too future directed.  There is more to be said here, and I hope to say it in future blogs.)

However, Obama’s middle ground—release the memos but let the small fry torturers go in order to sustain morale at the CIA—simply cannot be sustained in the face of today’s newspaper headlines, if they prove true.  What we are talking about here is not a few isolated instances of torture.  We are talking about a veritable house of horrors.  Here is an excerpt from The New York Times:

“Waterboarding Used 266 Times on 2 Suspects”


Published: April 19, 2009

C.I.A. interrogators used waterboarding, the near-drowning technique that top Obama administration officials have described as illegal torture, 266 times on two key prisoners from Al Qaeda, far more than had been previously reported.

The C.I.A. officers used waterboarding at least 83 times in August 2002 against Abu Zubaydah, according to a 2005 Justice Department legal memorandum. Abu Zubaydah has been described as a Qaeda operative.

A former C.I.A. officer, John Kiriakou, told ABC News and other news media organizations in 2007 that Abu Zubaydah had undergone waterboarding for only 35 seconds before agreeing to tell everything he knew.

The 2005 memo also says that the C.I.A. used waterboarding 183 times in March 2003 against Khalid Shaikh Mohammed, the self-described planner of the Sept. 11, 2001, terrorist attacks.


An editorial in  Sunday’s NY Times took a position that I had been willing to support, although uncomfortably, because I wanted to give the administration a chance to act.  Here is an excerpt from this editorial:

At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.


We should indeed start with these characters.  But we cannot take off the table the possibility that once an investigation begins, those who engaged in clearly defined acts of torture will face prosecution.  For example, if it turns out that same CIA agents were involved in, say, over a 100 episodes of waterboarding of the same individual, it would defy the rule of law to simply turn our backs and repeat the mantra,  he (or she) was only following orders.  There are limits to the “coverage” that so-called legal authorization provides.  Certain acts are beyond the pale even if your superiors appear to authorize them.

Yes, we can not live in the past.  But we cannot use “moving forward” as an excuse to avoid facing criminal acts done in our name.  And quite frankly, I don’t think that we want these individuals working for the CIA.   No one is that irreplaceable.   We can find good people whose boundaries are more properly in place.  There are plenty of them altready in the CIA.


UPDATE, April 20/21.  The New York Times is running a piece in today’s paper (April 21st) that addresses the issue of whether we can walk away from what has taken place.

“Pressure Grows to Investigate Interrogations”

The article begins:

WASHINGTON — Pressure mounted on President Obama on Monday for more thorough investigation into harsh interrogations of terrorism suspects under the Bush administration, even as he tried to reassure the Central Intelligence Agency that it would not be blamed for following legal advice.

Mr. Obama said it was time to admit “mistakes” and “move forward.” But there were signs that he might not be able to avoid a protracted inquiry into the use of interrogation techniques that the president’s top aides and many critics say crossed the line into torture.


UPDATE, April 21, 2009.  The New York Times is now reporting that Obama is not closing the door on investigating the actions of the lawyers who defended Bush’s terrorism policies.  He is still opposed to prosecuting CIA operatives.

“Obama Open to Inquiry in Interrogation Abuses”

The article suggests a significant change in the public face that the Obama administration is putting on the prospect of an investigation in just the last 24 hours.  Let’s see how this plays out in the next few weeks (and months).   If a special prosecutor is appointed or if Congress actually gets moving, it’s possible that we could see some sort of action taken against not only Bush’s lawyers, but those who committed the most outrageous acts of torture.  (Although I am not holding my breath.)

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