|(1) Even the Nuremberg Defense doesn't protect all CIA torture. Jason Leopold reports:
CIA Interrogation Tapes Predated Torture Memo
By Jason Leopold
(The Intelligence Daily) -- The CIA began videotaping interrogations of two alleged "high value" terrorist detainees in April 2002, four months before Bush administration attorneys issued a memo clearing the way for CIA interrogators to use "enhanced interrogation techniques," the Justice Department disclosed in court documents.
However, in a letter to a federal court judge Thursday, the Justice Department only agreed to provide details on the harshest interrogations of prisoner Abu Zubaydah that occurred in August 2002 - after the Bush administration's lawyers had provided the legal cover for waterboarding and other brutal tactics.
That letter prompted ACLU lawyers to express concern over why the government offered no promises regarding the preceding months. Amrit Singh, an ACLU staff attorney, said the government's "motivations in confining its [latest] response to the month of August are highly suspect."
The ACLU is suing the CIA to release documents related to 92 interrogation videotapes that were destroyed by the CIA in 2005 as public attention began focusing on allegations that the Bush administration had subjected "war on terror" detainees to brutal interrogations that crossed the line into torture.
This is only the most clear-cut evidence of a more general problem: Obama is not merely affirming the validity of the Nuremberg defense, he is using it pre-emptively to prevent any sort of investigation whatever. He is assuming in advance that everyone who engaged in torture did so under orders and/or guidance of superiors who believed they were doing so legally. This is for defense attorneys to argue, not should-be prosecutors.
(2) The Nuremberg Prinsiples are part of a much larger legal framework that Obama is violating. As Glenn Greenwald indicated in his diary, "Eric Holder v. America's legal obligations" the Nuremberg Principles do not stand in splendid isolation as some abstract ideal fantasy, but are instead part of the well-established tissue of law on which our nation--and even our civilization--depend. This includes:
Convention Against Torture -- signed by Reagan in 1988, ratified in 1994 by Senate:
Each State Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . . . The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. . . . An order from a superior officer or a public authority may not be invoked as a justification of torture.
Geneva Conventions, Article 146:
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.
Charter of the International Tribunal at Nuremberg, Article 8:
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
U.S. Constitution, Article VI:
[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.
Thus, Obama and Holder are not simply rejecting out of hand the Nuremberg Principles. They are rejecting the entire fabric of international and American law. Although not, perhaps, as flagrantly offensive as the Bush regime, their actions represent, in one sense, an even more fundamental rejection of the rule of law, since they do not simply reject the rule of law for their own narrow self-interest, but rather reject it wholesale, grant a spurious legitimacy to this lawlessness by agreeing to it for the benefit of supposed political enemies, who are, in fact, de facto allies.
(3) Obama is obstructing a war crimes investigation, which puts us in league with Serbia. And he's using several bogus arguments in doing so.
Jonathan Turley on the Rachel Maddow show on Thursday:
MADDOW: So, in this White House statement today, President Obama said, "This is a time for reflection, not retribution; nothing will be gained by spending our time and energy laying blame for the past." I have to ask you if you think he's promising to not prosecute official who sanctioned torture or is he just saying that he won't prosecute CIA officers who carried out the orders?
TURLEY: It's very hard to say because the officials, of course, wrote these memos and approved them, and the memos went to the people who conducted torture. But what is really disturbing is that President Obama's obviously referring to criminal investigation and prosecution, that somehow he's equating the enforcement of federal laws that he took an oath to enforce, to uphold the Constitution and our laws-and he's equating that with an act of retribution, and some sort of hissy fit or blame game.
You know, it's not retribution to enforce criminal laws. But it is obstruction to prevent that enforcement and that is exactly what he has done thus far. He is trying to lay the groundwork, to look principled when he's doing an utterly unprincipled thing.
There's very few things worse for a president to do than to protect accused war criminals, and that's what we're talking about here. President Obama himself has said that waterboarding is torture. And torture violates at least four treaties and is considered a war crime.
So, the refusal to let it be investigated is to try to obstruct a war crime investigation that put it's in the same category as Serbia and other countries that have refused to allow investigations to occur.
Turley said a mouthful here, but the last thing he said strikes me as the proper context for looking at everything else. Arguably the most fundamental evil of the Bush regime was its wanton contempt for the rule of law, which did incalculable damage both at home and abroad. And one thing many, many activists, as well as ordinary voters looked forward to under Barack Obama was the restoration of the rule of law. But in obstructing war crimes investigations, Obama is taking the most sweeping and fundamental stance against the rule of law that any president possibly could, making us no different from any other country in the world that protects its own war criminals.
There is nothing whatsoever noble about this when Serbia seeks to protect its war criminals, and there's nothing noble about it when Barack Obama does the same. Indeed, when such base ends are served, it helps to unmask the false pretenses of the rationales that used to excuse and justify it, several of which Turley also deals with.
(3a) Bogus argument: Enforcing the law--which is your sworn duty--is just engaging in a partisan hissy fit. This is, of course, the essence of the Scooter Libby defense. The laws are for little people. Holding top Republican officials accountable under the rule of law is nothing more than mob rule.
The fact that Obama buys into this--not just tacitly, but openly, as he did in the statement under discussion--is a clear-cut demonstration that GOP/conservative hegemony defines reality in Versailles in that Obama fundamentally accepts that hegemony.
(3b) Bogus argument: Nothing will be gained by supporting the rule of law. These are Obama's exact words: "Nothing will be gained by spending our time and energy laying blame for the past."
This was exactly the sort of logic that prevailed in the pardoning of Richard Nixon over Watergate, and hamstringing of investigations into Iran/Contra. Indeed, this logic is precisely why we suffered the criminal rampage of the Bush regime in the first place. This is the essence of the conservative rationale why conservative leaders should never be held accountable.
(3c) Bogus argument: Nothing will be gained by exposing the truth. Again, this was exactly the sort of logic that prevailed in the pardoning of Richard Nixon over Watergate, and hamstringing of investigations into Iran/Contra. And again, this logic is precisely why we suffered the criminal rampage of the Bush regime in the first place. This is the essence of the conservative rationale why conservative leaders should never be held accountable.
(3d) Bogus argument: Letting criminals off scot-free is a matter of principle, if they're properly connected. This is the very essence of conservative ideology: there are two tyhpes of people, to which entirely different sets of rules apply. Exonerating those regarded as "us" is a matter of principle, no matter what they do. Punishing "them", no matter what they do is likewise a matter of principle. Treating everyone the same way is nothing short of "tyranny."
In short, the not-so-sub-text of Obama's rationale is pure unadulterated conservative ideology, which holds that conservatives can never be held accountable for anything, no matter what they do, while liberals must always be punished and blamed, no matter what they do.
(4) Condoning torture by refusing to prosecute strengthens the terrorist's case against America. Upholding the rule of law would have been the most effective anti-terrorist strategy imaginable.
For a man who claims to be a pragmatist above all, Obama has shown himself to be as clueless and inept as George W. Bush. Not only is upholding the rule of law and punishing torture the right thing to do, it is also far and away the most pragmatic thing that a new administration could possibly do to influence the disillusioned and the dispossessed, whose sympathy and/or support are vital for the continued survival and growth of international terrorist groups who threaten America.
By effectively granting immunity to the torturers of the Bush regime, Obama has made their crimes his own in the eyes of the world, surrendering the moral high ground once again, simply because he lacks the moral and intellectual capacity to stand up to the inanities of the Beltway bubbleheads.