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Opposition Grows To Obama's Decision Not To Prosecute CIA Agents

Waterboarding

First Posted: 05/20/09 06:12 AM ET Updated: 05/25/11 02:15 PM ET

"Nothing will be gained by spending our time and energy laying blame for the past." - President Barack Obama

From the New York Times editorial page to the United Nations, there seems to be growing criticism of the Obama administration's decision not to prosecute CIA agents who tortured detainees.

In the New York Times editorial on Sunday, the paper lashed Obama, demanding a "commitment to accountability." The same editorial called for the impeachment of federal appeals court judge Jay Bybee, former assistant U.S. attorney general and author of the torture memos:

In the case of detainee abuse, Mr. Obama assured C.I.A. operatives that they would not be prosecuted for actions that their superiors told them were legal. We have never been comfortable with the "only following orders" excuse, especially because Americans still do not know what was actually done or who was giving the orders.


After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability.

Manfred Nowak, the UN rapporteur on torture, says that the US must try those who used harsh interrogation tactics in accordance with the UN Convention Against Torture.

Calling for an independent investigations and the compensation of victims, Nowak told the Austrian daily Der Standard:

"The United States, like all other states that are part of the UN convention against torture, is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court... The fact that you carried out an order doesn't relieve you of your responsibility."

David Cole, a professor at Georgetown University Law Centre, and the author of Justice at War: The Men and Ideas That Shaped America's 'War on Terror', was forthright in his criticism of the president's decision not to prosecute, reports the Scotsman:

"Obama's refusal to hold accountable those responsible for the wrongs so evident from the memos is unacceptable. A child would recognise these tactics as cruel and inhumane."

He adds, however, that it is not the line CIA operatives who should face sanctions. "Rather, it is the lawyers and high-level government officials who set this scheme in motion and made it possible. These documents are irrefutable evidence that government officials, including lawyers employed in the Office of Legal Counsel, a Justice Department office meant to serve as the 'constitutional conscience' of the Executive Branch, set out to manipulate the law to reach repugnant, illegal results that contravene the very ideals President Obama says must not be sacrificed."

Salon's Joan Walsh agreed with the Times editorial:

I'm concerned about the relative silence from the Obama administration and Congress about what comes next. There clearly needs to be a torture investigation; personally, I'd prefer that it be led by an independent prosecutor at this point. I think there is more than enough proof that laws were broken, and we need accountability. But I'd support starting with a strong Congressional probe if there's more political will for that right now.

I believe that every step we take to learn more will only strengthen the case that someone must be held accountable for the lawless cruelty that marked the Bush-Cheney torture regime. We can start by impeaching Jay Bybee, but it can't end there.

When the decision was first announced last Thursday, MSNBC's Keith Olbermann came right out in his special comment and said Obama was "wrong":

What you describe would be not "spent energy" but catharsis. Not "blame laid," but responsibility ascribed...


That means prosecuting all those involved in the Bush administration's torture of prisoners, even if the results are nominal punishments, or merely new laws. Your only other option is to let this set and fester indefinitely. Because, Sir, some day there will be another Republican president, or even a Democrat just as blind as Mr. Bush to ethics and this country's moral force. And he will look back to what you did about Mr. Bush. Or what you did not do.

Human rights groups such as Amnesty International and the Center for Constitutional Rights have been outspoken in their criticism, reports the Belfast Telegraph:

"The release of CIA memos on interrogation methods by the US Department of Justice appears to have offered a get-out-of-jail-free card to people involved in torture," Amnesty International said.


"It is one of the deepest disappointments of this administration that it appears unwilling to uphold the law where crimes have been committed by former officials," said the Washington-based Centre for Constitutional Rights. The Centre argued that it was not just the interrogators who should face scrutiny, but those directing them.

"Whether or not CIA operatives who conducted water boarding are guaranteed immunity, it is the high-level officials who conceived, justified and ordered the torture programme who bear the most responsibility for breaking domestic and international law, and it is they who must be prosecuted," it said.

In Newsweek, Michael Isikoff and Evan Thomas surmised that the prosecution decision may not be final, depending on the outcome of upcoming inquiries:

"As a practical matter, it's over -- nobody is going to get prosecuted," says Robert Bennett, the Washington lawyer whose clients include Jose Rodriguez, the former chief of the CIA's clandestine service, who has been under investigation for his November 2005 decision to destroy 92 videotapes showing the interrogation of Abu Zubaydah. But what if evidence emerges that CIA officials (or contractors, who actually conducted most of the interrogations)went beyond the boundaries that the Justice Department erected? The CIA has consistently denied wrongdoing, but an intriguing footnote to one of the memos says that an internal CIA investigation found that there might have been "unnecessary use of enhanced techniques" against one Qaeda suspect. The memos released last week would be comical if they weren't so tragic about the level of legal hairsplitting. In the case of Abu Zubaydah, the Justice Department lawyer instructed that as long as the CIA did not tell him anything about the insect, and the insect was non-stinging, "the insect's placement in the box would not constitute a threat of severe physical pain or suffering to a reasonable person in his position." Just how a lawyer sitting in his office in Washington, D.C., would know what a "reasonable person in his position" might think is unclear.
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