Unless hermetically sealed in a dungeon, I assume readers are aware of the “torture memos” authored by Bush administration lawyers in 2002-2003 and released to the public this past week by the Justice Department. Their release followed intense debate between Attorney General Eric Holder who advocated transparency and CIA Director Leon Pannetta who argued on behalf of secrecy.
Each time I started to read one I stopped out of disgust. I finally read them all yesterday after initially avoiding it. Ultimately, as citizens we all have a duty to familiarize ourselves with this dark chapter in our history yet it took me a couple days to overcome my reluctance and read these documents. Having done so I urge everyone to do the same and not simply rely upon the punditocracy and blogosphere for interpretation.
President Obama courageously and in my view rightly, authorized their release because we must not shield shameful truths under the false pre-text of national security. The criticism of former Bush officials notwithstanding, releasing these memos is an important step in the Obama administration’s efforts to rehabilitate America’s image.
The cost to our national security in releasing memos with respect to banned torture techniques is outweighed by the higher consideration of restoring America’s respectability with the civilized world. We can’t ignore our immoral transgressions because the world hasn’t and the national security argument is a false construct. Indeed, these now banned policies were ineffective at best and harmed our national security by further radicalizing the world against us.
Many on the left are understandably outraged at the administration’s decision not to prosecute intelligence operatives who implemented these policies and have invoked the “Nuremberg defense” in venting their criticism. I sympathize with their argument even as I feel conflicted about it. Yes, I acknowledge feeling conflicted about what to do with CIA employees who were promised legal cover. Not all “truths” are absolute.
It doesn’t seem right to prosecute these people after the Justice Department promised they would not be prosecuted in the first place. To do sends a message that we expect these people to do our dirty work with the understanding they will be abandoned once the going gets tough.
I’d like to think I would have the moral courage to say no after receiving orders to engage in torture and resist the criminal rationalizations of White House Counsel Alberto Gonzales and Justice Department lawyer John Yoo. It’s easy for any of us on the outside to say these people should be prosecuted. We might feel differently if we had to walk in their shoes.
It also doesn’t seem right to simply ignore what they did. The CIA required cover from the Justice Department because they knew the Bush administration torture guidelines were illegal as well as immoral. Suppose this administration or succeeding presidents order their operatives to conduct immoral and illegal activities with respect to future detainees?
Is it not better to establish a precedent that punishes “following orders” that are illegal and reward those who stand up for the rule of law? Even if these employees are not criminally prosecuted they should pay a professional price and be fired. The culture needs to be changed and won’t be without some kind of accountability.
Without hesitation I firmly believe those who helped design these policies such as White House counsel Alberto Gonzales and John Yoo merit prosecution to the fullest extent of the law. Prosecution should also include Defense Secretary Donald Rumsfeld, Vice President Dick Cheney and President George W. Bush and anyone else identified either through a truth and reconciliation commission or congressional investigation as designing and ordering criminal policies in our country’s name. It is to our everlasting shame that foreign courts are willing to prosecute Americans for war crimes, while we allow our own to go on as if nothing ever happened.
President Obama apparently believes absolving the prior administration for war crimes is analogous to President Ford’s pardon of Richard Nixon: the only way to allow the country to move ahead. At least President Ford though “pardoned” Richard Nixon. The act of pardoning Nixon, although condemned at the time, at least acknowledged the man committed acts subject to prosecution. And Nixon had already paid a price.
There has been no reckoning for the figures that shamed our country or any sort of official acknowledgment that they engaged in criminal behavior. Congressional Democrats should have insisted upon accountability while the Bush administration was in power. It is to the everlasting shame of the Democratic Party that they did not impeach Bush, Cheney, Rumsfeld and Gonzales after he later became Attorney General, when they had the chance.
I believe a mature democracy should be able to conduct the people's business and simultaneously pursue the truth no matter where or how high up it leads. If President Obama however truly believes prosecuting former members of the Bush administration, including Bush and Cheney to be a distraction the nation can’t afford, then he should pardon them. Let's assume for the sake of argument that President Obama is correct. That criminal prosecution of Bush, Cheney and their minions would paralyze the body politic at a time when action is needed on multiple fronts.
At least the act of pardoning sends a message that the United States of America acknowledges their wrongdoing for posterity. It would also forever mark those pardoned long after bloggers like me are dead. Pardoning them would further stain those who enabled their heinous policies. Those enablers not only include the Republican Party but Democratic leaders such as Nancy Pelosi and Jay Rockefeller of the Senate Intelligence Committee who were briefed on these policies. Even if the entire Bush cabal never serves a second in prison, pardoning them is far preferable than simply “not prosecuting” the most feculent administration in American history.
Otherwise, releasing these memos amounts to truth without any consequences. And that's not acceptable.