Barack Obama stood out in a crowded field of contenders by opposing the War in Iraq, and speaking out boldly and forcefully for rule of law. In a country that prides itself on being “a nation of laws, not men,” this was an effective way for a freshmen senator with little political organization to stand out in a contest that was supposed to be a cakewalk for Hillary Clinton. And while his victory in November seemed almost preordained, this rhetoric kept him afloat at a time when his candidacy seemed very much a long-shot, an exploratory run for 2012, or 2016.
Signaling his intent to change the way things were under George W. Bush, Obama gave the Justice Department the lead in the handling of those imprisoned by the United States in Guantanamo during the last eight years. The Department of Justice (DOJ) is America’s equivalent of the Home Ministry and Law Ministry put together; and under a good leader, it is enormously powerful. Particularly heartening was Attorney General Eric Holder’s straightforward acknowledgement that waterboarding, along with other techniques used by the Bush administration, were indeed torture.
The nation’s attention was wrenched back to torture when the Justice Department released a set of memos written by the Office of Legal Counsel in 2002 that made it legal for American officials to torture those held in American custody. The Office of Legal Counsel (OLC) an office in the DOJ that interprets the law for the rest of the executive branch; effectively, if the OLC says that something is legal, then it is legal. The memo was authored by Jay Bybee, then Assistant Attorney General at the OLC, and John Yoo, his deputy. The memos effectively make a host of torture legal; including attention grasp, walling, waterboarding, and being put in a coffin-like space with insects.
Ann Coulter reacted: “This is what Muslims do to each other on first dates.”
CIA and the FBI’s professional interrogators have long made clear their disdain of torture, maintaining that a person will make any confession under torture that will make the pain stop. One of the individuals tortured, Abu Zubaydah, was later revealed to be insane. Even though the Bush administration maintained that torture was only used to prevent an imminent terrorist attack on the United States, allegations have arisen that torture was used to get any information linking Saddam Hossein’s regime to Al Qaeda that could have been used to justify President Bush’s invasion of Iraq in 2003.
While releasing the memos, Obama made clear that he was neither going to prosecute Bybee and Yoo, the lawyers who authored the memo, nor the CIA personnel who actually carried out the torture. However, it was soon recognized that Obama had spoken prematurely, since in any matter involving potential criminal prosecution, the DOJ is able, independent of the more politicized White House, to press ahead on its own.
The question has now become, should torture be prosecuted and punished?
Torture is illegal in the United States. The Convention Against Torture was signed by President Ronald Reagan in 1988 and ratified by the US Senate in 1994. Under Article VI of the United States Constitution, it is the supreme law of the land, in par with laws passed by the Congress. Under this treaty, the United States is obligated to investigate any occurrences of torture. If it does not do so, another country has the authority to carry out these investigations. Spain has already indicted six individuals, including Bybee, Yoo, and Bush’s Attorney General, Alberto Gonzales, in its own investigation of torture. The prosecution of lawyers for their legal advice has impeccable precedents in law: lawyers and judges for Adolf Hitler’s Nazi Reich were tried and sentenced by the Allied Powers after World War Two.
Bybee was appointed to the Federal Appeals Court, essentially our High Court, by Bush; where he serves for life unless Congress impeaches him. Yoo is now a professor at the elite Boalt Hall School of Law at UC Berkeley. Prosecuting either will not be painless, just like the self-examination that the Democrats must go through now will not be painless. Just like any good Washington scandal, this trouble is bipartisan: key democratic leaders, including then House Minority Leader Nancy Pelosi, were briefed by the CIA regarding the torture. She knew about the torture, and chose to keep silent.
This scandal has come at a time when Pelosi, now Speaker of the House, is at the height of her power. Commanding solid Democratic majorities in both chambers of the Congress, shepherding to passage a new President’s legislative agenda, and boosting impeccable liberal credentials, America’s first female Speaker was well-set to begin a reign of power unmatched since Sam Rayburn held the gavel, and his protégé, Lyndon Johnson, sat a heartbeat away from the Oval Office. An already-iconic figure amongst the liberals, she is despised by America’s conservatives. Her daughter Alexandra Pelosi, making a documentary for HBO, followed John McCain around the country during his presidential campaign. Describing Republican political rallies, she noted during an interview:
[T]he warm-up speakers that were criticizing the Democrats in Washington, would give these incredibly offensive speeches that all ended with the punch line of something really derogatory with the name Pelosi next to it. It really got the crowds worked up. And I had to call my father during the campaign and say to him, “Dad, did you know how hated you are in America? Did you know that your last name has become a symbol of just like every four-letter word?”
However, this scandal has already cast doubts on Pelosi’s political future. Her district, California-8, covers the liberal bastion of San Francisco; a seat held by Democrats since 1949, which has returned Pelosi eleven times with over 75% of the vote. Her constituents will not take easily to their own Member acting as an enabler for the Bush administration’s torture.
It would be unfair to characterize the outrage as coming only from the left. Fox News Host Shepard Smith, during a debate with his colleagues, responded to the argument made by many of his colleagues about the utility of torture in preventing future threats to America, when he banged his fist on his desk, and bawled out: “We are America! I don’t give a rat’s ass if it helps! We do not f****** torture! And the moment that is not the case, I want off the train.”
The current debate regarding torture prosecution have raised questions about ignoring violations of the law when it serves a purported greater good, and the extent to which former government officials should be prosecuted for breaking the law. Societies around the world have to grapple with these questions; and the answers they choose have grave consequences about their future trajectory.