Now that the nation and the world have had some time to read and digest the Senate Intelligence Committee’s massive report on the U.S. use of torture in the wake of the 9/11 attacks, it seems clear that grievous and heinous international war crimes were committed. These crimes were known and sanctioned by President George W. Bush, Vice-President Dick Cheney and other high-ranking Administration officials.
As the New York Times opined on today’s editorial page:
These are, simply, crimes. They are prohibited by federal law, which definestorture as the intentional infliction of “severe physical or mental pain or suffering.” They are also banned by the Convention Against Torture, the international treaty that the United States ratified in 1994 and that requires prosecution of any acts of torture. (Emphasis added)
We have participated many times in recent decades in the hunting down and prosecution of other nation’s leaders for committing acts of torture. Our — and specifically President Barack Obama’s — refusal to even consider conducting a criminal investigation into these outrages is unconscionable and indefensible.
On the other hand, the situation with our former President and his Administration may well qualify for somewhat different treatment. Where others who have been prosecuted for such crimes sought personal power and gain, there is little doubt in most peoples’ minds — including this fairly strongly Leftist writer — that what was done by Bush et al was done primarily out of fear and from a complete lack of understanding of how to react to terrorism on our own turf. We, uniquely among nations, had seldom been the victims, historically, of such attacks. There were no clear precedents for our dilemma.
In the days and weeks following 9/11, the intelligence community in disarray as it played a collective game of CYA to avoid the blame for the attacks that it collectively richly deserved, there was undoubtedly a sense in the White House that these attacks could well be the precursor of many more and harsher onslaughts. As we should have but didn’t learn in Vietnam, fighting an invisible enemy who shines your shoes by day and bombs your barracks by night is an almost impossible thing to be called upon to do.
Charged with protecting what has now become — frighteningly, for historical reasons — known as the “Homeland” against further terrorist attacks was first and foremost in the minds of Mssrs. Bush and Cheney. They reacted rather than pausing, thinking and planning. They almost certainly felt they didn’t have the luxury of time. In the process, they missed a huge opportunity to gain global support and admiration, but that was not their focus: they were intent on one thing and that was stopping another attack.
While it is clear that these men knew precisely that what they were doing were war crimes and illegal even under U.S. law, they undoubtedly felt pushed to the wall where the call of duty overrode their sense of legality.
None of that excuses what they did. But it does make it more understandable.
President Obama should order a full-scale investigation of these war crimes. Anyone found criminally liable should be convicted and sentenced. And then he should grant full pardons to those at the top out of an understanding for the horrible dilemma they faced, the lack of information and experience on which to base horrifically difficult and complex decisions, and their presumed good, unselfish motivations.
But it is important that we as a nation uphold the treaty on torture or we lose all credibility in criticizing and prosecuting other nations’ leaders for such conduct. It’s important that we establish ourselves as a nation governed by laws even when those laws produce difficult or rancorous results in our ranks.
President Obama has said repeatedly that, “we need to look forward as opposed to looking backwards,” which is an empty statement with no meaning or purpose. It is possible to do both, as the Times points out. I would argue that it is necessary to do both.
Today, the American Civil Liberties Union and Human Rights Watch are to give Attorney General Eric Holder Jr. a letter calling for the appointment of a special prosecutor. I would strongly urge President Obama to approve the idea and make that appointment. The new Republican Congress will, of course, oppose him and ultimately no prosecution or investigation may take place. But let the blame for that inaction, that tacit sanctioning of anti-human crimes fall where it belongs and not on this President whose only fault so far is to conclude wrongly that we as a nation couldn’t weather such a probe.
It is time, Mr. President, to act as the leader and Constitutional lawyer you are.