Will he prosecute the torturers?

ON TUESDAY, the Senate Armed Services Committee released a declassified report on the treatment of detainees in U.S. custody. (You can download the full report as a PDF.)

The report was completed in November 2008, but has been held from the public by the Department of Defense until now. In releasing it, the committee chair, Sen. Carl Levin (D-Mich.), said:

The report represents a condemnation of both the Bush administration's interrogation policies and of senior administration officials who attempted to shift the blame for abuse--such as that seen at Abu Ghraib, Guantánamo Bay and Afghanistan--to low-ranking soldiers. Claims, such as that made by former Deputy Secretary of Defense Paul Wolfowitz that detainee abuses could be chalked up to the unauthorized acts of a "few bad apples," were simply false.

The truth is that, early on, it was senior civilian leaders who set the tone. On September 16, 2001, Vice President Dick Cheney suggested that the United States turn to the "dark side" in our response to 9/11. Not long after that, after White House Counsel Alberto Gonzales called parts of the Geneva Conventions "quaint," President Bush determined that provisions of the Geneva Conventions did not apply to certain detainees. Other senior officials followed the president and vice president's lead, authorizing policies that included harsh and abusive interrogation techniques.

The record established by the Committee's investigation shows that senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques. Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses.

THIS DEVELOPMENT comes as the movement to try to hold senior Bush administration officials, their torturers and their lawyers accountable for their crimes is gaining new momentum. President Obama's comments on Tuesday, made during a meeting with Jordan's King Abdullah, has been reported in the press as Obama keeping the door open to prosecuting former Bush administration officials.

What he actually indicated is that he may take the position that it "is going to be more of a decision for the attorney general within the parameters of various laws" and is open to Congress forming a bipartisan commission to conduct an inquiry. The statement on Attorney General Eric Holder is perhaps a small step forward, but the "commission" idea is very problematic (more on this in a moment).

The fact is that the president already did incredible damage to the accountability movement, and possibly acted unconstitutionally and in contravention of international law, by publicly--and repeatedly--stating that he will not allow prosecution of the CIA torturers because they were "in good faith" following evil orders. One of the most recent comments by Obama about this was made at CIA headquarters:

Don't be discouraged by what's happened in the last few weeks. Don't be discouraged that we have to acknowledge potentially we've made some mistakes. That's how we learn. But the fact that we are willing to acknowledge them and then move forward, that is precisely why I am proud to be president of the United States, and that's why you should be proud to be members of the C.I.A.

Legal experts have pointed out that the decision not to prosecute the torturers was not Obama's to make. "The attorney general is entrusted with upholding the law where crimes are committed, not making a political decision as to whether the president believes it is expedient to do so," according to the Center for Constitutional Rights.

On Wednesday, the New York Times revealed that Obama's Director of National Intelligence, Dennis Blair "said in an internal memo last week that the now-banned interrogation methods had produced valuable information, contrary to the White House view that they had not been effective." According to the Times:

"High-value information came from interrogations in which those methods were used and provided a deeper understanding of the al-Qaeda organization that was attacking this country," Dennis C. Blair, the intelligence director, wrote to his staff last Thursday as the previously secret memos were released.

A condensed version of the Blair memo was distributed to news organizations that day without that sentence. The original memo was provided to the New York Times on Tuesday by a critic of Mr. Obama's policy. Wendy Morigi, a spokeswoman for Mr. Blair, said Tuesday that the sentence had been dropped in a routine process of shortening an internal memo into a statement for the news media.

WHILE MUCH media attention is being paid to the idea that Obama is open to prosecutions, that is not exactly what has been said.

Remember, Obama and Holder have both been pretty vocal in staking out a position in opposition to criminal action against Bush administration officials. It is also important to remember the words of Obama's Chief of Staff Rahm Emanuel Sunday on ABC's "This Week with George Stephanopoulos":

[Obama] believes that people in good faith were operating with the guidance they were provided. They shouldn't be prosecuted.

STEPHANOPOULOS: What about those who devised policy?

EMANUEL: Yes, but those who devised policy, he believes that they were--should not be prosecuted either, and that's not the place that we go--as he said in that letter, and I would really recommend people look at the full statement--not the letter, the statement--in that second paragraph, "this is not a time for retribution." It's time for reflection. It's not a time to use our energy and our time in looking back and any sense of anger and retribution.

Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, has suggested that her committee should review these matters for six to eight months before any sort of action is contemplated. While some have interpreted this as Feinstein asking Obama to keep prosecutions "on the table," another possible way of viewing it is as an appeal to Obama, in the face of mounting public pressure, not to change his publicly stated position against prosecution. Here is what she wrote:

I am writing to respectfully request that comments regarding holding individuals accountable for detention and interrogation related activities be held in reserve until the Senate Select Committee on Intelligence is able to complete its review of the conditions and interrogations of certain high value detainees.

On Tuesday, Obama seemed to indicate that he was open to some sort of bipartisan commission to look into the torture memos "if and when there needs to be a further accounting." Obama called that a "more sensible approach to take," saying, "I'm not suggesting that should be done, but I'm saying, if you've got a choice, I think it's very important for the American people to feel as if this is not being dealt with to provide one side or another political advantage, but rather is being done in order to learn some lessons so that we move forward in an effective way."

This is a very problematic position if what the president is suggesting is to form a commission instead of allowing a criminal investigation.

Recent experience with such commissions, most prominently the 9/11 commission, shows that these can easily turn into whitewash operations. If they wheel out tired old Lee Hamilton, you know this ain't going anywhere.

What is actually needed is an independent prosecutor--someone like a Patrick Fitzgerald--to treat this as the major-league, far-reaching crime investigation that it should be seen as. This prosecutor should have full subpoena power and complete access to the torture papers, including additional Bush-era documents which may need to be declassified. (After all, Dick Cheney now apparently supports this).

"Mr. Cheney is correct to propose that the public should have more information about the CIA's torture program, but disclosure should be comprehensive," said Jameel Jaffer, director of the ACLU National Security Project. "The new administration should begin by declassifying documents that would shed light on the role of Mr. Cheney and other senior Bush administration officials in authorizing that program."

Rep. Jerrold Nadler has announced that he intends to hold hearings on this issue. "If we do not follow through on investigating those who authorized and committed torture--and thereby broke American law--then we will have no standing on which to protest the future torture of American soldiers at the hands of our enemies," says Nadler. "I am continuing my conversations with Attorney General Holder on this critical issue, and intend to hold Congressional oversight hearings."

WHETHER OR not the Obama White House will allow the appointment of a special prosecutor may boil down to public pressure and protest. Importantly, there are people at the Justice Department who support this as well. As Michael Isikoff and Evan Thomas reported in Newsweek:

Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. has discussed naming a senior prosecutor or outside counsel to review whether CIA interrogators exceeded legal boundaries--and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Some Justice officials are deeply troubled by reports of detainee treatment and believe they may suggest criminal misconduct, these sources say.

It would be a huge mistake and a travesty to allow a commission--which, in the case of a "Truth and Reconciliation" commission, could potentially offer immunity to criminals--to replace the actual criminal investigation that is needed. There would only be one reason to do this: quid pro quo politics.

In its statement calling for a special prosecutor, the Center for Constitutional Rights asserted:

There is clearly movement on this issue--the public outcry has been too great for the president to ignore. With two-thirds of Americans supporting investigations and 40 percent supporting criminal prosecutions, he can no longer repeat his evasions about looking forward not backward. The sickening details in the torture memos brought it home: we have the evidence, and to sweep it under the carpet would be to create a system where every administration can commit whatever crimes it chooses with complete security in the knowledge that they will never be held to account.

It is certainly a welcome development that this week MoveOn, which has been silent on Obama's expansion of the war in Afghanistan and praises his Iraq plan, has joined the scores of groups that have long demanded an independent prosecutor. Better late than never.

Calls for a special prosecutor did not spring up because of the recently released torture memos. In June 2008, more than 50 Democratic Congress members, led by Reps. Jan Schakowsky and John Conyers, asked Attorney General Mukasey to appoint such a prosecutor. Activists are now calling on Congressmembers to resend their letters to Holder.

A joint statement signed this week by a wide variety of groups, including the Center for Constitutional Rights, the National Lawyers Guild, Iraq Veterans Against the War, Veteran Intelligence Professionals for Sanity, Progressive Democrats of America and others, reads:

We urge Attorney General Eric Holder to appoint a non-partisan independent Special Counsel to immediately commence a prosecutorial investigation into the most serious alleged crimes of former President George W. Bush, former Vice President Richard B. Cheney, the attorneys formerly employed by the Department of Justice whose memos sought to justify torture, and other former top officials of the Bush administration.

Our laws, and treaties that under Article VI of our Constitution are the supreme law of the land, require the prosecution of crimes that strong evidence suggests these individuals have committed. Both the former president and the former vice president have confessed to authorizing a torture procedure that is illegal under our law and treaty obligations. The former president has confessed to violating the Foreign Intelligence Surveillance Act.

We see no need for these prosecutions to be extraordinarily lengthy or costly, and no need to wait for the recommendations of a panel or "truth" commission when substantial evidence of the crimes is already in the public domain. We believe the most effective investigation can be conducted by a prosecutor, and we believe such an investigation should begin immediately.