Notes From Underground: Prosecution, Power and the Poison Chalice

Written by Chris Floyd

A reader writes in about yesterday's post:

There might be another reason [why Obama is not calling for prosecutions on torture]: a desire to win the case that’s built against the former administration and not taint or discredit it by inappropriate pressure to prosecute. As has been widely pointed out, it is not up to Barack Obama to decide when and what to prosecute – and any attempt to do so on his part would be unethical, if not criminal. (It’s the same principle that goes to the heart of what was so desperately corrupt about the Bush Administration’s involvement with the Department of Justice.)

Elizabeth de la Vega, a former federal prosecutor who has been calling for criminal investigations of the Bush Administration for years, has written an excellent article posted at truthout.org. In it she writes:

“No smart lawyer who secretly wanted this entire issue to disappear would have released those torture memos. From a prosecutor's point of view, the release of those memos with their authors' names in full view was pretty much the same as releasing their photographs with bloody knives in hand. The president and the attorney general may not have said much, but what they did was quietly flip the switch on a searing bright light.”

And whatever else you have to say about Barack Obama, he is a smart lawyer. It’s obvious he has parsed his words with extreme care. Although I can not see into Obama’s heart or character any more clearly than you, it’s my belief that he is actually more of a “radical” than you give him credit for. Indeed, I think it's possible he’s even more radical than you give yourself credit for. He may actually want to make inroads into the system, not just righteously rail against it from the outskirts.

A response from the outskirts:

An interesting viewpoint. But the idea of Obama's calculated "non-interference" in the decision-making process on prosecutions for torture seems hard to square with his very public, very forthright statements that none of the actual, physical perpetrators of the torture under question -- the CIA agents -- will face prosecution for their actions. Could this not be construed -- by some cynic, perhaps, or by some ranter from the outskirts -- as "inappropriate pressure" on the aforesaid decision-making process? [For more background, see this piece.]

What's more, the very torture statutes under which any prosecution would take place very specifically rule out Obama's justification for not prosecuting the CIA agents, i.e., "We were only following orders," or "The higher-ups said it was OK." The laws on torture preclude such a defense. After all, the commandants and guards at Nazi death camps could say the same; their acts were ordered from above, and were indeed "legal" under the Nazi system.

In any case, by going to CIA headquarters and making a very public avowal that no one there would have to face justice for the "mistakes" of the past, it seems to me that Obama is very clearly exerting pressure on the decision-making process. The White House is also telling the New York Times that prosecutions against the instigators of the torture system will not be pursued.

Certainly the president of the United States can say publicly that he believes that any and all credible allegations of torture involving officials of the U.S. government should be pursued to the full extent of the legal process. Such a simple, straightforward statement would in no way constitute undue "pressure" -- anymore than a president saying, for example, that he believes that the perpetrators of some school shooting or massive fraud or drug smuggling or any other crime should be brought to justice. By your logic, no president could ever express any opinion at all on any criminal activity.

And since you express a rightful concern for the due process of law, let us note that Obama was legally bound by court order to release those memos. The "debate" over their release was not whether or not to exert crafty and subtle pressure on the legal process by divulging this "smoking gun" evidence -- rather, the debate was whether or not to comply with the law or not.

In addition, the memos in question did not suddenly "expose" the torture lawyers to light. They merely added some detail to what has long been known about officials whose names have also long been known.

Also, the comparison of this case to the Bush Adminstration's perversion of the Justice Department does not hold water. Here, we are not talking about "politicizing" the justice system in any way; we are dealing with glaring, credible evidence of actual crimes that have been committed. In any normal, non-political circumstance, the law should be allowed to take its course against any and all perpetrators of these crimes. The Bush Administration was manufacturing cases where the alleged crimes were either completely non-existent or worked up from speciously applied technicalities by prosecutors and judges with clear partisan bias. The only "politicization" involved in prosecuting the torture case has come from Obama's specific offers of protection from prosecution for the CIA and the Bush White House.

To sum up: Obama released memos that he was legally required to release, while at the same time making very public claims that the CIA perpetrators of the torture would not be prosecuted, and quieter, "deep background" claims to favored press outlets that the officials who ordered the torture would not be prosecuted either. You find this a "radical" course of action that will "make inroads into the system." I'm afraid I disagree.

Note too that we are dealing here with only a miniscule aspect of the entire torture program, which was by no means confined to the CIA's "high-profile detainees." Thousands of Terror War captives remain in U.S. custody, including many in black-hole sites in Afghanistan -- captive whom Obama is, at this very minute, seeking to strip of every single vestige of legal redress. And many of these captives were not even taken in Afghanistan, but were "renditioned" there after having been kidnapped or seized -- without charge or warrant -- in other countries. And many of these captives are subject to the "harsh interrogation techniques" that are still "allowed" by the Army Field Manual.

Couple this with Obama's recent court moves seeking not only to defend but to expand Bush's claim of authoritarian executive power -- including "sovereign immunity" from any lawsuit over illegal surveillance by the government -- along with his escalation of the war in Afghanistan, his further extension of that war into Pakistan, and his economic "bailout" plan which has shovelled trillions of dollars into the coffers of the very fools and fraudsters who caused the crisis in the first place, etc. So we have an expanding war, an expanding military, an even-more entrenched and coddled oligarchy, the reach for even more draconian executive powers. Where exactly are the radical "inroads into the system" in all of this?

You can focus on this one narrow issue of the release of the memos, and parse its possible ramifications in every possible way that casts Obama in a good light. And you might even be correct; Obama and Holder might well be preparing to seize upon the Bush lawyers as scapegoats for the whole enterprise -- a possibility which we duly noted here the other day, just as we have always said that an Obama administration would indeed offer some minor mitigations of the worst excesses of the system in certain areas: no small thing in the individual lives of those affected by the mitigations. But you cannot wish away the undeniable fact that Obama has willingly and happily embraced the rotten core of the system -- militarism, oligarchy, covert action, draconian executive power. He doesn't want to change the essential nature of this brutal, outsized, inhumane system; he believes in it, he celebrates it -- as he did at CIA headquarter the other day.

Yes, I am "on the outskirts," with the railers, the ranters, the unimportant, unwashed rabble -- far from the center of power, where all the "smart lawyers" and "serious" players and real people are. But even if I were smart and serious and real and central, I would not pick up the poison chalice that Obama has eagerly put to his lips. I would not kill innocent human beings with drone strikes on distant villages. I would not guarantee the deaths of thousands more innocent human beings by expanding a mindless, pointless war. I would not laud a monstrous war crime that has killed a million innocent human beings as "an extraordinary achievement." I would not excuse and protect the perpetrators of torture and call them noble defenders of our civilization. I would not place trillions of dollars of debt on the shoulders of my children and grandchildren in order to save rich, rapacious bastards from the consequences of their fraud and greed.

I would prefer to remain on the "outskirts" with the despised and meaningless herd than sup such blood-flecked poison with the high and mighty. In this, I stand with Thoreau, who said:

"How does it become a man to behave toward this American government to-day? I answer that he cannot without disgrace be associated with it."

And with Solzhenitsyn, who said:

"It is impossible that evil should not come into the world; but take care that it does not enter through you."

And with Eugene Debs, who said:

“As long as there is a lower class, I am in it.
As long as there is a criminal element, I am of it.
As long as there is a soul in prison, I am not free.”