(For previous posts on torture, see here.)
Let’s continue with our look at the other excuses on the list put out by apologists.
Excuse 8: If we prosecute those who authorized torture, then this would be for purely partisan reasons for retribution by Democrats against Republicans.
The fundamental principle that is involved is that nobody is above the law. If this requires the prosecution of the officials of one party by the occupants of another party, that is just incidental. In fact, it is the very fact that the ruling party tends not to prosecute their own people that makes such cross-party prosecutions necessary. Of course, in a pro-war/pro-business oligarchy like the US, both parties are really one on issues like this, as can be seen in the way that the Obama administration is desperately trying to get out of its treaty obligations to take action against torturers. As is characteristic of oligarchies, each party protects the other when it comes to major issues, which is why other countries might step in to prosecute top US officials for torture if the US does not do so.
The idea that laws and treaties do not apply to actions by the US and its leaders is widely promoted by the oligarchy. Condoleeza Rice recently said that “by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture”. John Dean says that Obama is also guilty if his Justice Department does not prosecute because Geneva Conventions and the torture treaty require actions be taken against those who both torture and authorize torture. There is an affirmative obligation for governments to take action against those who commit torture. It does not give countries the choice, as some people think, to “let bygones be bygones”, to “look forward and not backward” and let torturers avoid prosecution and punishment. They do not have discretion in this matter. Since Attorney General Eric Holder has already conceded that waterboarding is torture, he is obliged to pursue prosecutions of those who committed torture.
Glenn Greenwald lays out the case for prosecutions clearly:
The U.S., under Ronald Reagan, legally obligated itself to investigate and prosecute any acts of torture committed by Americans (which includes authorization of torture by high level officials and also includes, under Article 3 of the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment], acts of “rendering” detainees to countries likely to torture, as the Bush administration unquestionably did).
All of the standard excuses being offered by Bush apologists and our political class (a virtual redundancy) — namely: our leaders meant well; we were facing a dangerous enemy; government lawyers said this could be done; Congress immunized the torturers; it would be too divisive to prosecute — are explicitly barred by this treaty (i.e., binding law) as a ground for refusing to investigate and prosecute acts of torture.
This is also why the standard argument now being offered by Bush apologists (such as University of Chicago Law Professor Eric Posner, echoing his dad, Court of Appeals Judge Richard Posner in Chicago) as to why prosecutions are unnecessary — namely: there is “prosecutorial discretion” that should take political factors into account in order not to prosecute — are both frivolous and lawless. The Convention explicitly bars any such “discretion”: “The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall . . . submit the case to its competent authorities for the purpose of prosecution.” The principal purpose of the Convention is to remove the discretion involved in prosecuting acts of torture and to bar the very excuses which every torturing society proffers and which our own torturing society is now attempting to invoke (“we were dealing with real threats; there were ‘exceptional circumstances’ that justified it; we enacted laws legalizing the torture; our leaders meant well; we need to move on”)
By deciding not to pursue actions against torturers, Obama himself is violating international law, in addition to politically interfering with the actions of the Justice Department. Although people seem to have become accustomed to the Justice Department being seen as a political arm of the White House (thanks to the post of Attorney General being filled with political hacks like Alberto Gonzalez), we must not forget that it is supposed to be an independent agency, free of political control and obliged to take actions purely on the legal merits of the cases that come before it. To take direction from the political leadership, as is happening now with Obama trying to quash prosecutions of torture and illegal wiretapping, is itself wrong.
The fundamental principles involved here are really quite simple. There are certain things that civilized societies should not do, and torture is one of them. Anyone who tortures or authorizes torture has violated the law and committed a crime against humanity and can be prosecuted in any country. Nobody is above the law. Nobody.
POST SCRIPT: Bipartisan whitewash on torture