Here’s a question that hardcore Obama supporters may not be prepared to answer: Is his unwillingness to investigate or prosecute those involved in torture — including high-level Bush adminsitration officials — leave his administration tacitly approving of practices that he has publicly denounced?
The answer, I think, is an unfortunate yes. The president, who has forcefully denounced torture, nonetheless refuses to engage in what he calls “retribution,” saying that “nothing will be gained by spending our time and energy laying blame for the past.” But, as Jonathan Turley, a constitutional law professor at George Washington University Law School, told Rachel Maddow last week that what would be gained would be a return to the rule of law.
The president, he said, is “equating the enforcement of federal laws that he took an oath to enforce, to uphold the Constitution and our laws … with an act of retribution, and some sort of hissy fit or blame game.”
But,
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.
The question, beyond this, is what this means in practice down the road. Former Reagan Justice Department official Bruce Fein, writing on The Daily Beast yesterday, called Obama a “political coward dangerous to the republic,” who has “made no effort to square his refusal to investigate credible and substantial evidence of felonies with his constitutional obligation to faithfully execute, not sabotage, the laws.”
He relied solely on politics, as though law was nothing more than a constellation of political calculations with ulterior motives.
This political calculation, unfortunately, will have dangerous longterm impact on our nation.
In sweeping the Bush-Cheney lawlessness under the rug, Obama has set a precedent of whitewashing White House lawlessness in the name of national security that will lie around like a loaded weapon ready for resurrection by any commander in chief eager to appear “tough on terrorism” and to exploit popular fear. Obama urges that the crimes were justified because the duumvirate acted to protect the nation from international terrorism. But Congress did not create a national-security defense to torture or commit FISA felonies.
President Obama should have invoked his pardon power if he believed circumstances justified the crimes by Bush and Cheney and the CIA’s interrogators. A pardon or lesser clemency properly exposes the president to political accountability, as Bush discovered with Cheney’s Chief of Staff Scooter Libby and President Ford with former President Nixon. More significant, a pardon does not set a precedent making lawful what was unlawful. It acknowledges the criminality of the underlying activity, and acceptance of the pardon is an admission of guilt by the recipient.
As Fein says, the lack of official acknowledgement of criminal wrongdoing is going to come back to bite us on the ass.
Hank Kalet 