Friday, April 17, 2009

Obama releases Bush torture memos.

Obama has released four top secret memos that allowed the CIA under the Bush administration to torture al-Qaida and other suspects held at Guantánamo and secret detention centres round the world, and has stated that no member of the CIA will face prosecution for what they have done.

I have no difficulty with this as I have always said that I have no interest in the prosecution of the grunts who carried out the orders, I am much more interested in the prosecution of the people at the top of the food chain, the people who gave out those orders.

By releasing these secret memos, and promising no charges against any CIA agents who obeyed orders to torture sanctioned by these memos, Obama is actually making the prosecution of Bush and the other thugs at the top of the food chain more likely. All that is needed now is for a couple of Republicans to express their disgust at what has been done in their name and Obama and his Justice Department will have the political cover they need to push ahead.

This is what was contained in the memos:

Ten techniques are approved, listed as: attention grasp, walling (in which the suspect could be pushed into a wall), a facial hold, a facial slap, cramped confinement, wall standing, sleep deprivation, insects placed in a confinement box (the suspect had a fear of insects) and the waterboard. In the latter, "the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner........produces the perception of 'suffocation and incipient panic'."

'Walling' involved use of a plastic neck collar to slam suspects into a specially-built wall that the CIA said made the impact sound worse than it actually was. Other methods include food deprivation.

The techniques were applied to at least 14 suspects.

The Bush administration, in particular former vice-president Dick Cheney, claimed that waterboarding did not amount to torture but the Obama administration has ruled that it is. Obama ordered the closure of Guantánamo and the CIA secret detention sites abroad.

Civil Rights groups have expressed their disappointment in Obama's decision as, under the rules established at Nuremberg, the argument that one was just following orders was clearly established as not being a sufficient excuse for taking part in such acts.

Obama, in a statement from the White House, said: "In releasing these memos, it is our intention to assure those who carrying out their duties relying in good faith upon the legal advice from the department of justice that they will not be subject to prosecution."

I actually applaud Obama for having the courage to make these memos public, and have no difficulty with him refusing to prosecute individuals who believed the Bush administration when they were told that what they were doing was perfectly legal.

Prosecution should be reserved for Yoo and the other individuals who made the case, I would argue not in good faith, that such acts were legal.

Unfortunately, the prospects of prosecution for war crimes in Spain took a knock last night.

In Spain, the chances of court action against six senior Bush administration members over the torture receded today after a ruling by the attorney-general, Candido Conde-Pumpido.

He said that any such action should be heard in a US court rather than a Spanish one, and that he would not allow Spain's legal system to be used as a plaything for political ends.

"If there is a reason to file a complaint against these people, it should be done before local courts with jurisdiction, in other words in the United States," he told reporters.

Spanish human rights lawyers last month asked Judge Baltasar Garzón, who indicted the former Chilean president Augusto Pinochet in 1998, to consider filing charges against the former US attorney-general, Alberto Gonzales, and five others.

Note, that the Spanish Attorney General is not saying that there is no case to answer, he is merely stating that any such case would be better served by a prosecution in the United States rather than in Spain.

And, with that, Spain knocks the ball back into Obama's court. At some point Obama is going to pushed against the barbed wire on this one and he is going to have to say whether or not he is prepared to prosecute war criminals for blatant war crimes.

I suspect that he will balk from doing so as the political price will be too divisive. But, at that moment, the moment when he makes clear that he is not prepared to do so, prosecutors in Spain and other places will pick up the baton and argue the case that Bush, Cheney and others committed war crimes and that their country of residence is not prepared to prosecute them, creating an obligation under international law for other country's to do so.

This is not simply going to go away.

Keith Olbermann:

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.
Olbermann went on:

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 wars 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.

I am with Olbermann. "Moving forward" leaves the question of the illegality of what was done hanging in the air as a precedent for the next US president who wants to torture people. For that reason alone, I care not whether Obama eventually pardons the buggers, I simply want it established that what they did was illegal.



Reading the OLC torture memos is enough to make you ill. The techniques in question are plainly and instinctively abhorrent by any common sense definition, and the authors of the memos obviously know it. But somehow they have to conclude otherwise, so they write page after mind-numbing page of sterile legal language designed to justify authorizing it anyway. It's not torture if the victim survives it intact. It's not against the law if it takes place outside the United States. Waterboarding is OK as long as it isn't performed more than twice in a 24-hour period. Sleep deprivation of shackled prisoners for seven days at a time is permissible as long as the victim's diaper is changed frequently. And on and on and on.

Do they know this is torture? Of course they do.

Hat tip to Andrew Sullivan.

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