'An Assault on the Law Itself'

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"If laws can be broken with impunity today, they can and will be broken with impunity tomorrow. Not just laws against torture and war crimes, but any and all laws; any and all limits on government."- Michael Ratner, president of the Center for Constitutional Rights 

excerpted from

If Obama Doesn't Prosecute Bush's Torture Team, We'll Pay a Big Price Down the Road

By Liliana Segura, AlterNet. Posted November 28, 2008.

...the prosecution of these attorneys [Alberto Gonzales, John Yoo, James Bybee, David Addington and William Haynes], as well as Bush, Cheney and the rest, is a critical part of not just imposing accountability on those who approved and carried out torture in the name of the American people, but in dismantling a legal framework that could lead to more torture in the future...

In a recent cover story of Harper's Magazine, human rights legal scholar Scott Horton lays out the rationale for pursuing the crimes of the Bush administration...

[But] For Ratner, the models that have been suggested thus far don't go far enough. In his view, the only way to restore the rule of law is to pursue criminal investigation and prosecution. "People have been pulling their punches when it comes to seeking full prosecutions," he says, "because of the feeling that is not politically feasible." It may be true in the end, "but unless you demand it, you're not going to get it." Failing to try, he says is "the worst defeatism you can have."

Indeed, given the destruction of the past eight years to the fabric of American democracy, to shy away from torture prosecutions would seem profoundly -- and dangerously -- shortsighted. Obama has stated that as a country, the United States does not torture -- most recently in an interview with 60 Minutes -- and much of the support he gained as a candidate from the legal and human rights community was based on his vocal opposition to the Military Commissions Act. Although his opposition to torture has been unequivocal in tone, Obama has been hesitant to state in solid terms what exactly he would do about the torture that already took place. Responding to the question this summer, from a reporter from the Philadelphia Daily News, Obama responded:

What I would want to do is to have my Justice Department and my attorney general immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.

So this is an area where I would want to exercise judgment -- I would want to find out directly from my attorney general -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important -- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings, and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.

It's hard to imagine the lawlessness of the Bush administration falling short of "exceptional." But regardless, whether Eric Holder, Obama's pick for attorney general, would take this on is questionable. "Everybody has advice for Holder," Slate legal correspondent Dahlia Lithwick recently wrote, "starting with shuttering Guantanamo and repairing detention and interrogation policies; recalibrating the legal limits on information-gathering by intelligence agencies; doing away with provisions of the Patriot Act that encroach on civil liberties; and restoring the integrity and independence of the Office of Legal Counsel, which advises the president on the lawfulness of a proposed action." But Holder has been known to criticize the violations committed by the Bush administration. "We owe the American people a reckoning," he said in a speech in June.

Still, in Horton's opinion, although torture is a federal crime and a federal prosecutor has the power to prosecute it, it is unlikely any U.S. attorney would possess the independence to do so. "Indeed," says Horton, "so many high-level figures at Justice were involved in creating the legal mechanism for torture that the Justice Department has effectively disqualified itself as an investigative vehicle, even under a new administration." Ratner agrees.

So what is a "reckoning"? And where are the consequences?

For Ratner, now is the time to push Obama, hard, on seeking independent prosecutions, "partisan witch hunt" concerns be damned. After all, Obama brings with him enormous moral credibility. Lifting the stain of torture is a project that could -- and should -- transcend partisan politics. "Obama could change this (discussion) as he changed the dialogue on race in this country," suggests Ratner, "with a speech on torture."

"People say that prosecuting torture is 'looking backward,' " says Ratner, "but in my view, prosecutions are looking forward -- looking forward so that this doesn't happen again."


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This page contains a single entry published on November 28, 2008 10:59 AM.

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