The Osterley Times: Bruce Fein: Obama needs to pardon or prosecute.

Bill Moyers has made it very clear what we are talking about here.

Enhanced interrogation, "harsh" questioning techniques, extraordinary rendition... now we know what they were really talking about — throwing a man against a wall thirty times in a row, depriving a prisoner of sleep for 11 straight days, waterboarding one detainee 183 times — in a word, torture.

In the interview with Bruce Fein and Mark Danner there is actually an extraordinary amount of agreement.

Obama has said that waterboarding is torture. Both President Bush and Vice President Cheney are on record as having ordered or authorised waterboarding. Torture is a crime under US law. Obama is, therefore, duty bound to take action as he has sworn to uphold the constitution and the laws of the United States.

The situation as it now stands is untenable. President Obama is admitting that Bush and Cheney have committed crimes and it is, therefore, impossible for him to simply "look forward and not backwards" until he sorts out this dilemma.

BRUCE FEIN: I would have asked him, since he's agreed that what was done was torture, and that the United States criminal code makes torture a crime. And there's no national security exception, no exception if you get useful information. And because we had impeached, in the House Judiciary Committee, a former President, called Richard Nixon, for failing faithfully to execute the laws. How he can justify not moving forward with an investigation when we have a former President and Vice President openly acknowledging they authorized water boarding, what he has described as torture, is a crime.
Or in the alternative, if he thinks that there are mitigating circumstances, and there's body language suggests that, then he should pardon them like Ford did Richard Nixon. And the reason why the difference between a pardon and non-prosecution is important, is because a pardon requires the recipient to acknowledge guilt. That there was wrongdoing. There was a crime. Just forgetting and sweeping it under the rug suggests this wasn't illegal.

I have said before that I have no difficulty with Obama pardoning Bush and Cheney, I simply want it established that what they did was utterly illegal. I support Mark Danner's view that it would be better for all if any pardon was to come after an investigation so that the public would have an opportunity to learn of the crimes that Bush and Cheney committed, in much the same way as investigation allowed the public to truly realise the scale of Nixon's crimes.

And Fein is especially critical of the argument put forward by people like Karl Rove suggesting that to prosecute is somehow to politicise "policy differences":

BRUCE FEIN: That is nonsense on stilts. Torture is not a political issue. Torture is something prohibited--
BILL MOYERS: By--
BRUCE FEIN: --under a treaty by the U.S. Senate. It was prohibited in the U.S. Criminal Code. A bill passed by the House and Senate, including Republicans. And this idea that this would be like banana republics. No, we have due process. No one gets convicted without proof beyond a reasonable doubt, right to counsel, opportunity to cross-examine all adverse witnesses, make all the arguments, reasonable reliance on the law, which is a defense. So, this idea of saying that we have a criminal enforcement system that's a banana republic shows his ignorance of how our system works, as opposed to how banana republics work.

Let us remember that Bruce Fein was an associate deputy attorney general in the Reagan administration and that gives us some indication of just how far to the right the Republican party have now swung when we hear Karl Rove making the nonsensical arguments which he is now making.

The problem for Obama is that both of the accused have admitted their crimes in public, almost daring Obama to contradict them. They also have their supporters, Krauthammer and other loons, making the case in public that these crimes should be the official policy of the United States.

Both Bush and Cheney had the opportunity whilst in office to rescind any laws which they felt restricted them unduly.

BRUCE FEIN: Well, there are two things that I would think I would have advised the President. Number one, we can get any law repealed, revoked, changed, authorized what you think needs to be done. Congress did that with regards to the authorization to use military force, so you change the law if you think they're restricting. Even-
BILL MOYERS: You go to Congress.
BRUCE FEIN: Yes, go to Congress. And you can do this in secret session. Then Congress would have done anything the President- they would have passed a law saying the world is flat after 9/11, if the President asked for it. The second thing is, even if you thought that there was no time whatsoever. You'd say, "Mr. President, if we do it, as soon as we've done, we need to go to Congress and ask for ratification, after the fact. They've got to ratify what we're doing is legal." We can't just throw the Constitution and shred it. Like we're- now national security, then it trumps the Constitution of the United States.
So, there are ways in which you can approach this kind of crisis. Even defying the law as long as you make certain that you're going to go back, have political ratification. You can explain what you've done, without exposing sources and methods. And if you have to expose sources and methods, in order to have a legitimacy, that's what a republic requires. That's how you can do this.

The US is either a nation run by laws or it is a nation where the president has the powers of a King and this King states what the law is at any given moment.

At the moment we have an ex-President and ex-Vice President demanding that what they did be accepted as legal when it is clear to all that what they did was illegal.

At stake here is a principle; either the law is what the law says it is, or the law is what the president at any given moment decides it to be.

Obama has stated that the US is " a nation of laws". Principled words, but they will be rendered meaningless unless he takes some kind of action here. Both Bush and Cheney are stating that they were right to torture under the law. And Cheney, especially, is making the case that Obama in endangering the nation by refusing to torture.

In other words, unless Obama acts to establish the illegality of what they are stating, he is allowing their claims to stand. That torture is legal and that Obama is simply too weak to do what is necessary to protect the nation.

Both Bush and Cheney's behaviour makes investigation impossible to avoid.

BRUCE FEIN: But the people you go after, you were mentioning, Mark, is at the very top. It's at Bush and the Cheney level. That's why Richard Nixon was under investigation for obstruction of justice. They didn't say, "Just go after Haldeman and Ehrlichman and the Watergate burglars." They went after the President of the United States. That's why he needed a pardon. And that's what should happen here.

The authorization came at the top. It's unfair to suggest these people who are being told by the President, who has access, purportedly, to all the national intelligence and security things in the world. "Do this. It's legal." And then you prosecute them? And the one who actually was responsible gets off scot-free? No, that's not the rule of law.

As I've said before, pardon them if you must, but have it established, once and for all, that the US opposes torture and recognises it's illegality.

As long as the former President and Vice President are making the argument that what they did was legal and right, and having their right wing supporters echo this, then the subject remains one which is under debate in American society.

And America cannot return to it's position as leader of the free world as long as it appears to be debating a subject which the rest of us have long ago come to a conclusion on. Torture is wrong. Period.

Obama needs to make it clear to nutty right wingers - and to the rest of the world - that the US utterly rejects the Republican argument on this subject.

And, until he does, the US will remain in legal limbo on this subject. And you can't lead the world from a position of limbo, you can only lead by the power of example. Obama needs to give us one.

UPDATE:

It appears as if even former members of the Armed Forces feel that something needs to be done.

Gen. Antonio Taguba:

[T]here is no longer any doubt as to whether the current administration has committed war crimes. . . . [T]he Commander-in-Chief and those under him authorized a systematic regime of torture. . . . The only question that remains to be answered is whether those who ordered the use of torture will be held to account.