George W. Bush and Dick Cheney must be laughing their asses off. President Obama has a budding constitutional crisis on his hands, with a leading Senate Democrat accusing Obama's CIA director of spying on Intelligence Committee staff. But at the heart of the issue is a still-classified, 6,000 page report said to catalog abuses and deceptions perpetrated by the Central Intelligence Agency as part of President Bush's program of so-called "enhanced interrogation techniques." Which means that five years after he put an end to Bush's regime of detainee torture, Barack Obama is facing the blowback from his decision to leave its architects unpunished.
That the Bush torture team would face no consequences for potential violations of American and international law that the United States is treaty-bound to prosecute became clear before Barack Obama even took the oath of office. During his confirmation hearings on January 16, 2009, Attorney General nominee Eric Holder declared, "waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else:
"I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that."If that language sounds familiar, it should. "Criminalizing politics," after all, is the defense Republican miscreants used to fight off scandals including Iran-Contra, the Valerie Plame affair, illicit domestic surveillance by the NSA and the Bush administration's prosecutors' purge. And when the Obama administration in April 2009 released the four torture memos authored by Bush attorneys Jay Bybee, Stephen Bradbury and John Yoo, Republicans in Congress and their amen corner in the media charged the new president was "criminalizing conservatism."
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Powerline's John Hinderaker made that exact charge in a piece by the same title. "Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail," he wrote, adding, "Toward that end, they have sometimes tried to criminalize what are essentially policy differences." In a scathing editorial on April 23, 2009, titled, "Presidential Poison," the Wall Street Journal went on the attack using the GOP's tried and untrue criminalizing politics canard:
Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...But that never happened, because President Barack Obama never prosecuted anyone involved in the design and execution of President Bush's program of detainee torture. While the memos authorizing these potential war crimes have seen the light of day, those who ordered and perpetrated them did not. Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." (Ultimately, none were, as Holder in August 2012 ended his last investigation into two detainee deaths. President Obama went further in seemingly backing away from any legal action against the Bush torture team:
Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...
Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.
"In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution...But spending that time and energy was never about "laying blame for the past," but redeeming American values by holding its leaders to account for failing to uphold them. And that's not all. Obama had a responsibility to uphold the law, especially after Dick Cheney and George W. Bush proudly admitted they had not. As Scott Horton concluded in Harper's Magazine after Cheney boast in 2010 that "I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques:"
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
"What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants."Writing on February 15, 2010, Professor Jonathan Turley lamented that President Obama had turned his back on the law:
It is an astonishing public admission since waterboarding is not just illegal but a war crime. It is akin to the vice president saying that he supported bank robbery or murder-for-hire as a public policy.After Bush's tough talk in June 2011 ("Yeah, we waterboarded Khalid Sheikh Mohammed ... I'd do it again to save lives"), Professor Turley concluded that by turning a blind eye, the Obama administration had dumbed torture down. "Because it would have been politically unpopular to prosecute people for torture," Turley wrote, "the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point."
The ability of Cheney to openly brag about his taste for torture is the direct result of President Barack Obama blocking any investigation or prosecution of war crimes. For political reasons, Obama and Attorney General Eric Holder have refused to carry out our clear obligations under international law to prosecute for such waterboarding. Indeed, before taking office, various high-ranking officials stated that both Obama and Holder assured them that they would not allow such prosecutions. While they denied it at the time, those accounts are consistent with their actions following inauguration.
In early 2009, President Obama no doubt wanted to avoid the political firestorm that would have gripped Washington at a time of national economic crisis. Obama surely feared his agenda on economic stimulus and health care reform would be completely derailed by Republicans in revenge for torture investigations or a 9/11-style commission.
But five years later, a crisis has exploded nonetheless, this time pitting Obama allies like Senator Diane Feinstein (D-CA) against Obama's CIA director John Brennan. And if Feinstein's charges turn out to be true, Obama will have no choice but to fire Brennan, a Bush-era holdover, for helping the agency cover up its wrongdoing from the Bush-Cheney years.
And all the while, George W. Bush and Dick Cheney are laughing their asses off.