Obama and the torture memos

I've been holding off on posting about Obama's release of the torture memos until I could figure out precisely what I thought about them. I'm not there yet, but everybody's talking about it, so I'll open the comboxes up for your views.

One thing that nobody should ever be permitted to say again, after reading these memos: "The United States didn't torture." When President Bush said it, he was a liar. The only question is whether or not he was lying to himself, so that he could sleep at night, or consciously lying to the public for reasons of political expediency.

What next? From the NYT story linked above:

Mr. Obama condemned what he called a "dark and painful chapter in our history" and said that the interrogation techniques would never be used again. But he also repeated his opposition to a lengthy inquiry into the program, saying that "nothing will be gained by spending our time and energy laying blame for the past."

I disagree. Those who approved of torture should be made to defend what they did. The public should be forced to confront these things, and to learn what our government is capable of, so that we might prevent it in the future. I'm inclined to former Reagan Justice official Bruce Fein's view. Excerpt:

In sweeping the Bush-Cheney lawlessness under the rug, Obama has set a precedent whitewashing White House lawlessness in the name of national security that will lie around like a loaded weapon ready for resurrection by any Commander-in-Chief eager to appear "tough on terrorism" and to exploit popular fear. Obama urges that the crimes were justified because the duumvirate acted to protect the nation from international terrorism. But Congress did not create a national security defense to torture or commit FISA felonies.

President Obama should have invoked his pardon power if he believed circumstances justified the crimes by Bush and Cheney and the CIA's interrogators. A pardon or lesser clemency properly exposes the president to political accountability, as Bush discovered with Cheney's chief of staff Scooter Libby and President Ford with former President Nixon. More significant, a pardon does not set a precedent making lawful what was unlawful. It acknowledges the criminality of the underlying activity, and acceptance of the pardon is an admission of guilt by the recipient. Pardons leave unsullied the doctrine of Ex parte Milligan (1866):"The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men at all times and in all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."

Obama can be summoned against his own non-prosecution policy, secrecy, and non-accountability. In releasing the four OLC memoranda on April 16, Obama asserted: "Enlisting our values [like the rule of law or transparency] in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals [like the rule of law or government in the sunshine]... I believe strongly in transparency and accountability... The United States is a nation of laws."

These words should be taken cum granis salis. Bush and Cheney also insisted that everything they did was constitutional and indispensable to thwarting another 9/11. Obama's promise of change has proven nothing more than verbal jugglery.

Shorter Bruce Fein: Hey Obama, a long face is not a moral disinfectant.

But it may not be as dire as that. I cannot see many people thinking putting President Bush and VP Dick Cheney in the dock is wise, to put it mildly. Nor, I think, would there be much public enthusiasm for hauling CIA agents into court. In neither case do I think there's much to be gained, but there is a lot to be lost. But surely there has to be some kind of reckoning for what was done. Salon says that some of the Justice Dept lawyers who gave the legal OK for torture could yet be held accountable in court. Good.

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