Judging by the rare leaks from President-elect
Barack Obama's transition team, investigations and prosecutions of high-level
George W. Bush administration officials for torture and war crimes are a distant
prospect. But likely or not, that won't stop pundits from debating the question
of whether those officials responsible should be held accountable.
Irrespective of whether Vice President Dick Cheney, former Secretary of Defense
Donald Rumsfeld, or others are dragged before juries, one glaring change seems
absolutely certain: Obama stands unequivocally against torture, and the practice
is likely to come to an end under his administration.
"Even though I've been disappointed in other presidents in the past,
I do listen, and I do believe Obama when he says we won't torture. I think
that's crucial," said Michael Ratner, the president of the Center for
But forswearing controversial and harsh interrogation methods may not be enough
to permanently reestablish the moral high ground that the Obama administration
has promised to bring back to the U.S.' interactions with the rest of the world.
If Obama doesn't take on torture that occurred, as opposed to simply discontinuing
the practice, the door may be left open for future administrations to resurrect
the harshest of interrogation techniques, said Ratner at a recent forum at
Georgetown University Law School.
"If Obama really wants to make sure we don't torture, he has to launch
a criminal investigation," said Ratner, the author of The
Trial of Donald Rumsfeld: A Prosecution by Book.
He said that the targets of such an investigation would be the easily identifiable
"key players" and "principals" in the Bush administration
who hatched plans to allow and legally justify harsh interrogation methods
that critics allege are torture, including the controversial "waterboarding"
simulated drowning technique.
Those pursued, said Ratner, would include high-ranking administration officials
such as Cheney, Rumsfeld, and former Central Intelligence Agency chief George
Tenet, as well as the legal team that drummed up what is now regarded as a
sloppy legal justification for torture.
Key Bush administration lawyers involved in providing legal cover to harsh
practices, including the roundly criticized "torture memo" from the
Justice Department's Office of Legal Counsel (OLC), include former attorney
general and earlier White House counsel Alberto Gonzales; Cheney's chief of
staff and former legal counsel to the vice president's office David Addington;
and the University of California, Berkeley law professor and former OLC lawyer
If the characters behind the questionable techniques are not held accountable
for violating U.S. and international laws, said Ratner, presidents after Obama
may simply say "well, in the name of national security I can just redo
what Obama just put in place. I can go torture again."
Ratner also spoke to the concern that, from the view of the rest of the world,
"to not do an investigation and prosecution gives the impression of impunity."
But opposing Ratner on the dais, Stewart Taylor Jr. argued that an investigation
and prosecution were not appropriate.
"The people who are called 'war criminals' by [Ratner] and others do
not think they acted with impunity," said Taylor, a Brookings Institution
fellow and frequent contributor to Newsweek and the National Journal.
In the July 21 edition of Newsweek, Taylor called for Bush to preemptively
pardon any administration official who could be held to account for torture
or war crimes. Taylor's rationale was that without fear of prosecution, a full
and true account of what he called "dark deeds" could never come
Furthermore, at the Georgetown Law event Taylor said investigation and eventual
prosecution would "tear the country apart."
That may be the thinking of Obama, who, in addition to hints he wouldn't investigate
Bush administration malfeasance, declared his intention to govern as a political
reconciliation president in his election victory speech.
In Grant Park in Chicago on Nov. 4, Obama rehashed a quote from slain civil
rights leader Martin Luther King Jr., but instead of rhetorically bending the
"arc of history" toward "justice," as King did, Obama called
for it to be bent "toward the hope of a better day."
But Ratner said that the country was already divided, and that divide is exactly
what a future administration could politically exploit to reinstate torture.
He said that Obama must close the divide and doing so is not rehashing the
"You're making sure that in the future, we don't torture again,"
Ratner said. "This is not looking backward."
Another potential problem with investigation and prosecution, says Taylor,
is that the Bush administration officials ostensibly had sought to find out
whether the methods they were about to approve were justified, and, indeed,
they were told they were in the legal clear.
"There is no evidence that high-ranking officials acted with criminal
intent," he said. "They were relying in good faith on the advice
of legal counsel."
Taylor said that since the legal advice originated from the Department of
Justice, it would be wrong for the same Justice Department to "turn around"
and prosecute people for actions that its previous incarnation had explicitly
told were legal.
But Taylor's point misses two issues: that the crimes were allegedly given
a legal green light because of collusion with the White House, and that Ratner
proposes to investigate those same Justice officials who were involved in giving
Despite referring to John Yoo as a "gonzo executive imperialist,"
Taylor said that "those officials, like them or not, were honorably motivated"
because they were "desperately afraid" of another terrorist attack.
Ratner insists that the officials, part of a "group, cabal, or conspiracy,"
may be culpable because they were "aiders and abettors."
"[OLC] was not giving independent counsel," insisted Ratner. "They
were shaping memos to fit a policy that had already been determined."
And while Taylor was quick to point out that many U.S. administrations had
been accused of war crimes by various sources, Ratner replied that it was the
first time that any administration had actually "assaulted the prohibition
That could be one reason why, if the U.S. does not take care of its own house,
Bush administration officials will likely be pursued on charges in Europe and
In international courts, said Ratner, those officials will not be able to
hide behind the legal shields of internal government memos or executive decrees.
"They have no defense in international law," he said. "They're
(Inter Press Service)