Giving the torturers a pass

Andrew Sullivan nicely explains that not only is it morally wrong for President Obama to give Bush administration torturers a pass, it is actually legally wrong:

Now fast-forward to February 2007 when the International Committee
of the Red Cross notifies the president of the United States that it
believes that his administration has engaged in what was unequivocally
torture of prisoners. At that point, the president is required, by law and by treaty,
to open an investigation and prosecution of the guilty parties. The
president failed to do that, another breach of the law. Moreover, any
president privy to that information is required to initiate an
investigation and prosecution – or violate the law and the Geneva
Conventions.

And so Obama's refusal to investigate war crimes is
itself against the law. And so torture's cancerous route through the
legal and constitutional system continues, contaminating the future as
well as the past, rendering the US incapable of upholding Geneva
against other nations, because it has violated Geneva itself, and
giving to every tyrant on the planet a justification for the torture of
prisoners.

In this scenario, America becomes a city on a hill,
where the rule of law is optional and torture acceptable if parsed into
legal memos that do not pass the most basic professional sniff-test.

Glenn Greenwald adds:

Needless to say, I vehemently disagree with anyone — including Obama
— who believes that prosecutions are unwarranted.  These memos
describe grotesque war crimes — legalized by classic banality-of-evil
criminals and ordered by pure criminals — that must be prosecuted if
the rule of law is to have any meaning.  But the decision of whether to
prosecute is not Obama's to make; ultimately, it is Holder's and/or a
Special Prosecutor's.  More importantly, Obama can only do so much by
himself.  The Obama administration should, on its own, initiate
criminal proceedings, but the citizenry also has responsibilities
here.  These acts were carried out by our Government, and if we are
really as repulsed by them as we claim, then the burden is on us to
demand that something be done. 

Obama failing to see to the prosecution of Bush officials for these heinous acts is clearly not as wrong as the actions of the Bush officials, but it nonetheless diminishes the rule of law, which is never a good thing.

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Impeach Jay Bybee

So, I was just about to write a post linking to the Slate article making the argument in the title.  The fact that Bybee, the author of morally and legally odious torture memos is serving as a federal appeals court judge is a national disgrace.  Now, I see that the NY Times in on the case on the editorial page.  Maybe something will actually happen (I doubt it, but I'd love it).  From the Times:

To read the four newly released memos on prisoner interrogation written by George W. Bush’s Justice Department is to take a journey into depravity.

Their language is the precise bureaucratese favored by dungeon
masters throughout history. They detail how to fashion a collar for
slamming a prisoner against a wall, exactly how many days he can be
kept without sleep (11), and what, specifically, he should be told
before being locked in a box with an insect — all to stop just short of
having a jury decide that these acts violate the laws against torture
and abusive treatment of prisoners.

In one of the more nauseating
passages, Jay Bybee, then an assistant attorney general and now a
federal judge, wrote admiringly about a contraption for waterboarding
that would lurch a prisoner upright if he stopped breathing while water
was poured over his face. He praised the Central Intelligence Agency
for having doctors ready to perform an emergency tracheotomy if
necessary.

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…

After all, as far as Mr. Bush’s lawyers were concerned, it was not
really torture unless it involved breaking bones, burning flesh or
pulling teeth. That, Mr. Bybee kept noting, was what the Libyan secret
police did to one prisoner. The standard for American behavior should
be a lot higher than that of the Libyan secret police…

At least Mr. Obama is not following Mr. Bush’s example of showy
trials for the small fry — like Lynndie England of Abu Ghraib
notoriety. But he has an obligation to pursue what is clear evidence of
a government policy sanctioning the torture and abuse of prisoners — in
violation of international law and the Constitution.

That
investigation should start with the lawyers who wrote these sickening
memos, including John Yoo, who now teaches law in California; Steven
Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who
holds the lifetime seat on the federal appeals court that Mr. Bush
rewarded him with.

These memos make it clear that Mr. Bybee is
unfit for a job that requires legal judgment and a respect for the
Constitution. Congress should impeach him.

The whole editorial is great and makes a much stronger case against Bybee and his fellow war criminals than any legal case for torture Bybee ever made.  

 

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