President Obama's decision to spare CIA torturers from prosecution stands the Nuremberg principles on their head. "Good Germans" who were only following orders' are not exempt from the bar of justice. Individuals must be held responsible for war crimes and crimes against humanity.
Justice Robert Jackson, Chief United States Prosecutor at the Nuremberg Trials, declared in his opening statement to the Tribunal that the men charged "represent sinister influence that will lurk in the world long after their bodies have returned to dust. They are," he said, "living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power."
The arrogance and cruelty of CIA officers who torture and brutalize helpless prisoners is not expunged because "they carried out their duties relying in good faith upon legal advice from the Department of Justice." Attorney General Holder says it's "unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," but he fails to note these very CIA agents requested said authority in order to engage in what all but the most insidious parsing of legal thought recognizes as torture.
As Jackson said, "it was under the law of all civilized peoples a crime for one man with his bare knuckles to assault another." When awakened, he said, "Plain people, with their earthly common sense, revolted at such fictions and legalisms so contrary to ethical principles..." He declared to the world that "civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive."
How we cheapen ourselves today. "Enhanced interrogation," "coercive techniques" and "harsh treatment" pretend torture is not torture. By what moral or ethical standard does a rational person determine that smashing a shackled human being's head into a wall is legal, let alone acceptable? It has been clear from before Nuremberg that the duty of the individual is to refuse to commit an illegal act, even if so ordered by one's commanding authority.
Yet, "... nothing will be gained by spending our time and energy laying blame for the past," says our president, missing the point entirely. As a constitutional scholar, he above all should understand that impunity for torturers gnaws at the wound of injustice and denies healing.
As Jackson said, "Crimes always are committed only by persons. ... The Charter (of the Tribunal) recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states." "International Law," he went on, "is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. The law, so far as International Law can be decreed, had been clearly pronounced when these acts took place."
The pressures on a new president are intense, of course, but for the Obama Administration to demean justice based on what can only be understood as political calculus is deeply disheartening. At a minimum, one would hope that the price exacted from the "intelligence professionals" involved in this dehumanizing exercise would be immediate dismissal.
And as for their superiors, we might look again to Jackson, who made clear at Nuremberg that he was not indicting a nation. Instead, he condemned a group that "was not put in power by a majority ...", which "came to power by an evil alliance between the most extreme of the ... revolutionists, the most unrestrained of the ... reactionaries, and the most aggressive of the ... militarists."
Were President Obama to say he would not prosecute those who committed torture under color of law but would instead proceed against those who authorized it, one might see the logic in his position. Absent consequences for either the authors or the perpetrators of this outrage, however, we are left with what was described in another context as "law without justice, inviting charges of hypocrisy and double standards."
President of the board of Death Penalty Focus and Co-Chair Emeritus of the Southern California Committee of Human Rights Watch, Mike Farrell is the author of 'Just Call Me Mike: A Journey To Actor and Activist" and "Of Mule and Man."
As a lawyer, I am sickened that those who invoke "the rule of law" can also countenance what the great Justice Jackson called "legalisms so contrary to ethical principles." Before drawing conclusions about Pres. Obama in this regard, we should give him the chance to hear the outrage of thousands of lawyers across the nation who feel the same.
Thanks for a thoughtful post. You said it very well, indeed.
But had Bybee not been the author of said memos, others would have done the same thing; others like Scalia, Thomas, Roberts, Alito and even Russert. They all are extremists, with no respect for the Rule of Law, or for human life, especially for lives of those whom they call our enemies. Bybee, Yoo and Gonzalez were the perpetrators, but there are others who would have done the same thing.
Scalia clearly expressed where these extremists want to go. In a speech he gave in May, 2000, he called for the end of our American Rule of Law. In that same speech, he called for an end to democracy in America. That IS where they want to take our nation. They all would have made great Nazis. After all, anyone who will kill for corporate/oil company profits is fully capable of doing anything!!!
Also that is why they gave the election to Bush-Cheney.
You always express what I feel, only with brilliant eloquence. I am forwarding this outstanding piece to everyone I know who can read! Hope Obama reads it!
Thanks,
Marlene
To allow the perps to walk, and all who directed them to commit the crimes in the first place, is an insult first and form to the Constitution, the rule of law and the American People. It guarntees that Americans will do the same or worse again.
I support Obama, but not in this instance, ... and I can not sit idly by and say nothing.
For that reason, I believe that he has a plan, it just isn't ready for prime time yet. Some avenue will be used to enforce the Rule of Law that Obama speaks of often enough to remind us that he knows what has to be done. He just doesn't want the other side to know what the plans are right now, I suspect.
Many have suggested that WE all have to get behind the movement to bring these criminals to Justice and that is true. WE have to do our part and it looks like Obama is calling us out on this. After all, who is more upset with NOT going after them? Surely not his republican opponents. It is his progressive base that is appalled and that base has to PUSH for a Special Prosecutor.
And this just in--
'White House chief of staff Rahm Emanuel said in a Sunday television interview that Obama does not intend to seek prosecution of Bush administration officials who devised the policies that led to the harsh interrogation of suspected terrorists.'
Won't Prosecute Bush Administration officials! This after saying they won't be prosecuting CIA operatives, Saturday.
I don't know how much clearer it needs to be. There will be no prosecutions for War Crimes, and no accountability.
http://www.reuters.com/article/politicsNews/idUSTRE53H1Y020090418
So Obama is not only losing credibility amongst thoughtful Americans, but he's also wasting the political capital he supposedly was just trying to build up in the international community. Which cannot be good for America.
Obama has set a terrible precedent. Terrible.