Obama is Wrong!

Obama has to be commended for releasing the so-called "torture memos," that Bush's Justice Department officials wrote in the aftermath of 9/11 as a legal advice for CIA interrogators who were in the process of questioning "high-level" detainees at CIA's secret prisons abroad. The memos are truly disgusting. They make for a hair-raising reading and make one ashamed to be American! They confirm every single torture method previously reported by many courageous whistle blowers, Jane Mayer's book "The Dark Side," and most importantly, the 2006 secret report by the International Red Cross who had the chance to interview the 14 suspected terrorists who had been exposed to these methods.

The memos, written by the Office of the Legal Counsel, outline in bureaucratic and detached detail how far the CIA could go in interrogating the suspects. In short, the memos allowed: waterboarding, slamming prisoners against the wall, forced nudity for extended periods of time, dousing with cold war, slapping, stomach punching, putting a prisoner in a small box, placing insects inside the box, etc. If anyone had doubted that torture had been authorized by Bush himself, these memos leave no doubt that Bush and his Justice Department legally authorized torture, violating the International Convention Against Torture, the UN Charter of Human Rights, and several sections of the Geneva Conventions, the violations of which constitute a war crime.

So while Obama bravely declassified these memos--going against the strong push from the CIA and the intelligence community not to--he also issued a statement in which he closed the door to any prosecution of any CIA interrogators. The legal argument is as flimsy as it gets: they were following orders. As a constitutional lawyer Obama surely knows that this argument did not work for the Nazis at Nuremberg, or the Japanese who waterboarded our soldiers and whom we sentenced to death after WWII. I am by no means comparing CIA to Nazis, but merely pointing out that this attempt at legal immunity for lower-level violators has been historically discounted. The matter is further complicated by the fact that CIA has to rely (by law) on the opinion of the Office of the Legal Counsel. Otherwise, every CIA officer would have to hire his/her own lawyer and ask for advice before doing anything. This is why we have the Office of the Legal Counsel. But for too long this office has been staffed by administrations' cronies who issue opinions that are not legally sound, but rather, politically correct in that they are written with the interests of the administration in mind and not in the spirit of the law. According to the internal investigation of the Justice Department, John Yoo and Co. at Bush's office of legal counsel seriously violated ethics and wrote unsubstantiated memos based on flimsy legal arguments.

While Obama is partially right in saying that CIA interrogators followed what they thought were legal procedures, this statement also ignores the fact that there was seriously internal dissent regarding these methods. The FBI director, to whom I give a lot of credit for his courage, told his agents to walk out of the room and forbade them from participating in what he thought was a war crime. The Navy's counsel at Gitmo was appalled at the treatment of the prisoners there and soon resigned. And the list goes on. The Red Cross was issuing warnings and the CIA kept up with the interrogations as late as 2005. So the argument that they were doing this in the frantic days after 9/11 does not hold water at all. Even if it did, why do we need laws if they are going to collapse like a house of cards every time we have a national crisis?

What is most disturbing about Obama's blank-check immunity to CIA interrogators is the fact that this statement closed the door to any future prosecutions of the lawyers who wrote the memo. I would be fine with Obama not prosecuting lower level officials if he had committed to prosecute those who legalized torture, and go up the chain of command. But his emphasis on looking to the future and not going back to the past seriously dampers hope that anyone will ever be held accountable for these crimes.

Finally, what needs to be done is the whole Justice Department structure should be overhauled by making the Office of Legal Counsel independent of administrations so that it is staffed not by political appointees but by veteran government legal bureaucrats. This would prevent future misdeeds. But before we even get here and if we want to have any legal credibility left in the world, those who tortured must be held accountable. Period.