The reiterations of the Obama policy on the Sunday shows this morning do not convince. On this one, the administration is dead wrong. Well, let me back up a bit. I suppose I can understand the practical reasons for granting immunity to those in the CIA who carried out torture policies “under the color of law” due to the advice issued by the then- Justice Department. The Obama administration doesn’t want to incite a wholesale rebellion at Langley, or make the CIA the scapegoat for what were clearly Bush administration — not intelligence community — policies. However, three points from the Sundays that slap down the argument that immunity should be anything more than immunity to testify against those higher officials who ARE being prosecuted:
1. As Katty Kay pointed out on the “CMS,” the Nuremberg trials, conducted by American prosecutors, didn’t distinguish between those who committed war crimes out of pure depravity, and those who did it under color of law. They said they were following the laws of Germany (or Japan); we prosecuted them anyway.
2. The U.S. doesn’t have the right to supercede international law, or the treaties we have signed regarding human rights and torture. Just ask the international rapporteur on torture:
… in an interview with the Austrian newspaper Der Standard, the UN Special Rapporteur on Torture, Professor Manfred Nowak, explained that Obama’s grant of immunity is likely a violation of international law. As a party to the UN Convention Against Torture, the U.S. is obligated to investigate and prosecute U.S. citizens that are believed to have engaged in torture:
STANDARD: CIA torturers are according to U.S. President Obama not to be prosecuted. Is that decision supportable?
NOWAK: Absolutely not. The United States has, like all other Contracting Parties to the UN Convention Against Torture, committed itself to investigate instances of torture and to prosecute all cases in which credible evidence of torture is found.
Indeed, Article 2 of the convention on torture explains that “no exceptional circumstances whatsoever” can be used to legally justify torture. Further, the convention states that an “order from a superior officer or a public authority may not be invoked as a justification of torture.” [ThinkProgress]
3. Indeed, there is no legal argument that the administration can point to that would get them out of their obligation to pursue these torture allegations. Dick Cheney has admitted to authorizing torture, and many of the details of what was done during the Bush administration are already publicly known, as Rahm Emanuel pointed out on “This Week.” The memos have people’s names and signatures on them, including the name of Jay Bybee, who now occupies the dual role of probable war criminal and sitting federal judge (though hopefully, he’s soon to be an impeached one, as the NYT called for in an editorial yesterday.) At a minimum, the lawyers who concocted the torture memos should be disbarred, and in the case of Bybee, “disbenched.” And the people who put the policies in place, at the Pentagon, Justice Department and yes, the Bush White House, should, as Andrew Sullivan eloquently pointed out, be held to account.
As the Times points out in its editorial, the intent behind thememos makes what should be done clear enough:
These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.
And as the Times further points out:
It sounds like the plot of a mob film, except the lawyers asking how much their clients can get away with are from the C.I.A. and the lawyers coaching them on how to commit the abuses are from the Justice Department. And it all played out with the blessing of the defense secretary, the attorney general, the intelligence director and, most likely, President Bush and Vice President Dick Cheney.
Except that mobsters don’t generally brag on television about the horse’s heads they’ve laid to rest on victims’ pillows.
The Bush administration went to great lengths to impose Soviet-style eavesdropping, gulags and torture on the American experiment. Shouldn’t America repay them by imposing a little constitutional law on them?
What you can do:
To get more info and to get involved in the push to impeach Jay Bybee, click here.
For more on the push to have John Yoo removed from his professorship over his role in the torture memos, click here.
To sign the ACLU petition to call on the Justice Department to appoint a special prosecutor to investigate torture during the Bush administration, click here.