Obama on Torture: Don't Stop Thinking About Tomorrow

The Obama administration will not focus on prosecuting government officials who practiced illegal torture or war crimes, the president-elect said on Sunday, though he added that prosecutions and independent commission have not been completely ruled out. This was Obama's first major statement on the issue since April; over the past few weeks, Obama's aides have repeatedly ducked questions about what, if anything, the administration will do to enforce laws violated by officials under President Bush. The question topped the list of citizen concerns on Change.gov last week, out of over 70,000 submissions, but Obama aide Robert Gibbs refused to respond, leading ABC's George Stephanopoulos to press the question during an interview on his Sunday show.

"My orientation's going to be to move forward," Obama said. The attorney general has to stay above politics and "uphold the Constitution," Obama added, but his administration will focus on "getting things right in the future as opposed to looking at what we got wrong in the past."

This answer tracks the language of many torture apologists (and advocates) in Washington, who posit a choice between protecting the country today and second-guessing the past.

Enforcing laws and prosecuting criminal defendants, however, is inherently about "the past." Prosecutors always work on "past" crimes; there aren't many "forward-looking" prosecutors outside of Minority Report. If the Justice Department declines to enforce recent war crimes, it will not be freed up to go prevent future terrorist attacks. It will simply enforce other laws based on recent violations.

No one argues against prosecuting Bernie Madoff so that the Justice Department can focus on fixing the economy, going forward. In fact, faithfully and uniformly enforcing the law is crucial to "getting things right in the future." Any deterrence produced via criminal sanction is undermined when future, potential offenders see that a law is not actually enforced. People are more likely to follow the law when they see that breaking it carries consequences. This is such a basic foundation of our criminal system, justified by the elemental rationales of deterrence and retribution, it is quite hard to imagine that so many seasoned attorneys and Washington journalists honestly believe that the best way "forward" is to undermine deterrence and the rule of law.

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Notes: HuffPo's Sam Stein cast Obama's answer as leaving "the door open to investigating Bush"; Activist Bob Fertik, whom I worked with to organize support for the torture question, responds here; and I recently debated this issue, in contrast to the support for prosecuting Gov. Blagojevich, with former Bush and Cheney aide Ron Christie, below:

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This piece is originally from The Nation.

Comments

[Brainspore]

I'm getting flashbacks of the 2006 congressional election when Pelosi and Reid started dismissing the idea of impeaching Bush as soon as they were put into a position to do so.

[tigerlille]

It would seem that a sitting president will never prosecute a former president, maybe to avoid the same fate? I understand that Obama is faced with overwhelming problems, but the failure to investigate and prosecute will simply leave the door open for this to happen again, and as an attorney, and in particular as a constitutional law expert, Obama knows all this. Not a surprising decision, but a very, very disappointing one. Where are the patriots?

[Kartoffel]

Obama can't prosecute for one simple reason: a lot of Democrats in Congress knew about the torture and did nothing. If Obama exposes Democratic members of Congress to criminal prosecution the party will fracture and get nothing done, it'll lose lots of seats in the midterms, and Obama will end up a one-term president. I'm sure he knows all that.

[research]

Obama won't use congress to prosecute.

[anachoret]

There is no statute of limitations on this, so, if the Democratic wing of the Democratic Party continues to organize and replaces a few of the dirty Dems in the mid-terms... The winds could shift and possibly even help him in his re-election.
The President who brought the law to the Wild Bunch of American politics would be quite a notch in Obama's belt. Nothing would say "Accountability" like that.

[TomTheAlmostUgly]

"Obama can't prosecute for one simple reason: a lot of Democrats in Congress knew about the torture and did nothing. If Obama exposes Democratic members of Congress to criminal prosecution the party will fracture and get nothing done, it'll lose lots of seats in the midterms, and Obama will end up a one-term president. I'm sure he knows all that."

Not so. Bushie held Republican-only briefings; Democrats were not told the essentials. What they _were_ told was the standard Bushie BS: "Crisis-crisis, hurry-hurry, zillions of Americans will die unless you rubber-stamp this bill."

[oafishcad]

Every criminal in jail is there because of what went wrong in the past. The argument is bogus. If Obama has a real reason to not prosecute, or he just doesn't want to say at this time, fine. But please don't insult our intelligence.

[research]

Obama will continue this way, but his AG will do the dirty work.

[Beachrunner]

The thing is, if he goes after Bush and Cheney, he's going to have to go after both sides of the aisle, too.

Many memebers of Congress knew what type of interrogation techniques were being used. And said nothing.

That's why there won't be any prosecutions.

[TomTheAlmostUgly]

"The thing is, if he goes after Bush and Cheney, he's going to have to go after both sides of the aisle, too.

Many members of Congress knew what type of interrogation techniques were being used. And said nothing.

That's why there won't be any prosecutions."

Are you kidding me? The WH held Republican-only briefings about all this, and a lot of Democrats found out about this stuff only when they read the newspapers. It was all part of Bushie's contempt for the House and Senate, and for Democrats: "While in theory they're entitled to be told, we simply won't tell 'em jack."

[AnnfromCA]

Obama spelled it out. No prosecutions.

The far left will not be happy this week.

[oafishcad]

It isn't the far left. It's any patriotic American who cares about the Constitution or rule of law. Are you saying only those who are far left care about justice?

[thromulese]

"My orientation's going to be to move forward," Obama said

"getting things right in the future as opposed to looking at what we got wrong in the past."

If we do NOT “look back”, and if we ignore the past:

WE WILL REPEAT IT.

The Obama argument is exactly the same as that used by Bush and his minions. Forget the past, nothing to see/learn from that. Move along. And remember in the words of the current Attorney General “not every violation of the law is a crime.” Therefore, not every crime is a violation of the law.

And if the law WAS broken, and it happened in the past, well that’s history, yesterday, old news so forget about it because Bush and Obama already have.