Bauer versus Brandeis
The moral downside of cleansing the past
Bauer versus Brandeis
Dick Polman, Inquirer National Political Columnist
Barack Obama, in his appearance yesterday on ABC News, spent much of his time focusing on the economy. But I was most struck by an exchange that occurred late in the interview, when host George Stephanopoulos brought up the sensitive issue of criminal accountability in high places.
Stephanopoulos, quoting a question posed by a citizen on Obama’s website, asked whether Obama is prepared to appoint a special prosecutor “to independently investigate the greatest crimes of the Bush administration, including torture…”
This question has been kicking around for a long time, justifiably so. There is abundant evidence that the Bush regime, in its embrace of abusive interrogation techniques, trashed the rule of law. This is not a “liberal” perspective. Way back in May 2004, the deputy commanding general of the Third Army, Lt. Gen. Antonio Taguba, investigated the incidents at the Abu Ghraib prison; in a 53-page document, he cited “egregious acts and grave breaches of international law,” and concluded with this whopper:
“There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
And who ordered the use of torture - specifically, the illegal techniques devised by communist Chinese agents during the Korean war? A new bipartisan report by the Senate Armed Services Committee, released last month, concludes that certain high-ranking Bush officials – including former Pentagon chief Donald Rumsfeld, his legal counsel William Haynes, and potentially vice presidential legal counsel David Addington – took various actions that “led directly” to the use of interrogation methods that violated federal and international law, starting with the Geneva Conventions.
Indeed, behind the scenes, some of the most vociferous critics of the Bush regime were the military’s legal advisers. As evidenced by their own memos, they repeatedly protested the techniques such as waterboarding on legal and moral grounds, and, in some cases, they condemned the abuses on pragmatic grounds. Alberto Mora, a former Navy general counsel, told the Armed Services Committee that our treatment of the prisoners had worked mostly as a recruiting tool for the enemy, thus contributing to the number of U.S combat deaths in Iraq.
Given this track record, it’s no surprise that Eric Holder, the Obama team’s nominee for attorney general, has offered some tough talk about the need to hold the Bush regime accountable for its actions. A few months ago, prior to being tapped for the AG job, Holder said that “our government…authorized the use of procedures that violate both international law and the United States Constitution. We owe the American people a reckoning.”
That’s what Stephanopoulos basically asked Obama: Will we see such a reckoning? In the interests of justice, and in the interests of deterring errant behavior in the future, will the Obama administration name a special prosecutor who would hold Bush bigwigs accountable, and thus demonstrate that nobody is above the law?
The answer, apparently, is no.
Obama, in response: “We’re still evaluating how we’re going to approach the whole issue…And obviously we’re going to be looking at past practices, and I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that, for example, the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering."
More Obama: “My instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law that they are above the law. But my orientation’s going to be to move forward…My general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed (to) looking at what we got wrong in the past.”
It doesn’t take a genius to read between those lines. As I have mentioned repeatedly, Obama is a savvy politician, and he has clearly decided that any attempts to hold the Bush team criminally accountable for its behavior would clash with his own political and governing priorities. He has calculated that plumbing the past would risk triggering new rounds of partisan warfare – thereby undercutting his goal of nurturing a post-partisan, problem-solving era in Washington. And given the policy challenges on the horizon – economy, energy, health care, and so much more – Obama clearly sees a special prosecutor as a luxury he can ill afford.
Perhaps that’s the best calculation, given our current dire circumstances. Cleanse the past, focus on the future. That’s what Gerald Ford did in 1974, when he pardoned Nixon; his goal was to preemptively end “our long national nightmare,” and get Americans to look forward (which we generally prefer to do anyway, given our penchant for historical amnesia). What Obama suggested, in his ABC News interview, was that we would symbolically rebuke the Bush team “moving forward,” by returning to the interrogation and prison-handling practices that conform to international law.
But, as a number of despairing legal experts have pointed out, there is a moral price to be paid for letting the Bush team off the hook. Jonathan Turley, the noted law professor at George Washington University, framed the issue in several remarks last month: “It’s the indictment of all of us if we walk away from a clear war crime…It is equally immoral to stand silent in the face of a war crime and do nothing.” And Dahlia Lithwick, a legal scholar and commentator at Slate, argued the other day: “We don’t protest that ‘it’s all behind us now’ when a bank robber is brought to trial.”
Obama has probably judged the politics of the situation correctly. The average citizen is far more focused on keeping a job than going after Bush's people, and if the latter is assigned a low lower priority, so be it. Besides, on the Fox network, Jack Bauer is back on 24, and no doubt he will soon be re-instructing the masses on the efficacy of extreme interrogation. After all, in our contemporary culture, Jack Bauer is far more famous than Louis Brandeis, the legendary Supreme Court justice who once warned that “if the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy."
I can see both sides to this issue. However Obama risks being seen as ineffective as Ford if he doesn't do something to hold those who broke the law accountable. In my mind, Obama has to risk being politically unpopular in order to lead. Short of that he will be seen as being nothing but the same old politician as opposed to a real leader.- I hope there is an investigation so for once and for all everyone can see that what was done needed to be done and we can finally put the cry-baby left to bed.— jwad56
- Let's see, supposedly at least two attacks were thwarted by information gathered from Khalid Mohammed, saving a lot of lives. I suppose if they had been carried out and Americans killed, at least their widows/widowers could seek solace in our keeping our moral authority. Also, Obama probably realizes that if Bush and Cheney are brought in, it will be necessary to include Jane Harman, Jay Rockefeller, Pelosi and Reid, as well as several other members of the Democrat leadership who were briefed on the matters and complicit in their silence. Sure, Rockefeller wrote a letter and stashed it in his desk, but he did nothing to try and stop whatever law was broken from being broken. And while we are at it, let's investigate the FDR administration for their war crime of detaining American citizens of Japanese descent during WWII. Isn't FDR revered in the Democrat wings as one of our greater presidents? Yet didn't he commit war crimes? Ya just gotta love the double standard.— tjhaol
- Waterboarding is 'pretending' to drown someone! When the terrorists took Daniel Pearl they cut his head off, see the difference Mr. Polman. The hard left (not all dems) always assumes America is in the wrong and everyone else is in the right. Obama won't do what Polman suggests, as now he will be in charge of protecting Americans and will need every tool at his disposal to do so. I predict he will keep Guantanomo open and he voted for the Patriot Act as well. Rendition was practiced by the Clinton admin. too! Mr. Polman and the hard left will give Obama the hardest time, not the weakened Repubs and this is the 1st salvo. Like Congress has nothing better to do, like fix the 'worst economy since the great depression', etc! Lets look to the future, instead of investigating people who were doing their jobs to protect Americans. And, what will happen when the CIA and FBI agents in the field stop doing their jobs for fear of being prosecuted in the future. Get real please! If you want to investigate something, investigate this financial meltdown and hold the people in charge of that criminally liable.— NEPhilly
- tjhaol - can you site info on the two attacks thwarted by information gathered from interrogation of Khalid Mohammed? Were they attacks against the US? ... BTW - the supreme court eventually weighed in on Japanese internment. it was wrong, and reparations were made.— still_independent
- NEPhilly: why do conservatives continually assial liberals for "moral relativism", but then when torture (and waterboarding is torture, view 'simulated' drowning on youtube) is brought up, the "they're worse than us" argument is acceptable. I thought we believed in absolute right and wrong? Aren't we supposed to be the "shining city upon the hill whose beacon light ...." ?— still_independent
- tom: this is all from the last thread, but I didn’t want you to miss it. After reading the ridiculously long paper you cited, and dredging up math skills unused for 20 years, I have two comments. First, the numbers you're quoting are for what they consider "exogenous" tax cuts. Basically, they attempt to reduce the INTENT of the tax cut. The ones they’re looking at could best be termed "philosophical" ones, i.e. they are made without respect to current economic conditions. The authors admit that cutting taxes, for example, to forestall or reduce a recession HAVE LITTLE EFFECT ON GDP. Second, even accepting the fact that $1 in tax cuts increases GDP by $3, the tax cuts still wouldn’t pay for themselves, which has been the contention of several of us all along. Marginal EFFECTIVE income tax rates would need to be above the 33% level, which they aren’t, and that’s ignoring the fact that huge portions of the GDP aren’t subject to income taxes, anyway. Thanks for making our case. Perhaps you should have read more than a “tidbit”.— still_independent
- still, in waterboarding, does anyone die? Do they still have their head when it is over? I believe in doing whatever it takes to protect American lives. Cheney (I know he's a criminal) in an interview said Sheik Khalid Mohammed gave up secrets of future terrorist events that were then thwarted. I asked before, if you were President before 9/11 and you could waterboard someone to get info to stop it, would you? If I remember correctly you said, yes! Has your answer changed?— NEPhilly
- I am a Republican party officer (and ex-candidate) in the City. Without approaching the investigation part of the discussion, I disagree with some commenters' opinion on moral relativism, as still_independent put it. As said, just because someone else does somethign wrose, it does not excuse forsaking moral integrity. Are we to excuse Vince Fumo's lack of ethics because a similar politician in Russia is much more corrupt? We are Americans. We determine our morality, not other cultures and societies. We must walk above what others do. When darkness encroaches, it makes it even more important to firmly thrust forth our light and not dim it to hide in the shadows as well.— Adam Lang
- Cheney never stated what acts were stopped. And my answer to your question, no I would not torture someone for information no matter how many lives were at stake. As to this article, I am not sure what to make of it. One thing Polman does not point out is that Obama right now is seen as making nice with the outgoing administration, so as to have a smooth transition. By coming out and saying he would go after Cheney et al, he would be fanning the flames of those currently in power. My take is he is saying the right things now until he takes office -- when he has the power.— Master Dreamz
- NEPhilly: first, you didn't address my question at all. Yes, terrorists cut off his head. That misses the point. I thought we are supposed to be "better than them"? ... As you your question. Outside of the show "24", the answer is no. Here's why. It would never happen. Putting the moral issues aside (which I'm doing only for expediency), I have two practical issues with torture. The first is that it has been shown time and time again that you will get the answers that the turturee (?) thinks you WANT to hear. Second is verification. the only way to know if the information you receive is true is if you already have the information. In which case you don't need to torture.— still_independent
- Adam, was it 'moral' to drop the bomb on Japan to end WWII. Should we have prosecuted the pilots or President Truman? No, but did it save American lives and probably Japanese lives in the end, yes! When you are fighting an enemy that has no morals, that will do whatever it takes to hurt you and your citizens, rigid morality is a luxury you can not afford. I'll ask you the same question I asked still, if you could have stopped 9/11 by waterboarding someone would you? Time is yours:)— NEPhilly
- still, we are better than them (much to the hard left's chagrin)! We do not kill people or cut off people's extremities when 'torturing' them! We wouldn't even bother them (see the difference between them and us) if they weren't trying to do us harm first. You verify it by investigating it and seeing if it is true! You coundn't do that without the info in the 1st place! master, so Obama is lying now, until he gets in power and then he will act, I think he is better than that, but you can hold out hope! Our President and govt. did what they thought was right to protect you and your family! Maybe we can put Bush/Cheney/Rumi and Brownie while we're at it in Guantanomo, would that make you happy:) Maybe GWB should issue a blanket pardon of everyone involved to stop this nonsense. Sheesh!— NEPhilly
- Mr Lang makes alot of sense.......we can either walk above what others do or I suppose we can get done in the gutter with others. It may not be easy but if you lose your humanity what do you have left?— robo
- I am horrified at how many of you actually would torture other human beings. Once driving home from work, I heard an NPR story about WWII vets who were in charge of a German prison camp that housed scientists, a group they really wanted information from. One of the veterans told a reporter who was doing some research on our dealings with such prisoners that they got much more information from them when they developed relationships and treated them kindly than when they disciplined them. I just find it disturbing that there is such a cavalier attitude about the ends justifying the means.— NigeltheMastiff
Cited by the Columbia Journalism Review as one of the nation's top political reporters, and lauded by the ABC News political website as "one of the finest political journalists of his generation," Dick Polman is a national political columnist at the Philadelphia Inquirer. He is on the full-time faculty at the University of Pennsylvania, as "writer in residence." Dick has been a frequent guest on C-Span, MSNBC, CNN, NPR and the BBC. He covered the 1992, 1996, 2000, and 2004 presidential campaigns.
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