Would Obama Prosecute Bush, Cheney, Rice, Etc.?

One of the year's most important stories got lost in the furor over Reverend Wright:

...a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects -- whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The advisers were members of the National Security Council's Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

This is just the latest evidence that abuse of detainees was systematic and that Bush and his inner circle--as well as senior military officials--are to blame.

What do we do with this knowledge?
What does Barack Obama do?

Bush wasn't present at the meeting of the "Principals." But, as Elizabeth Holtzman pointed out in an important 2005 article in the Nation:

...[T]here are tantalizing suggestions that Bush may have condoned or possibly authorized coercive interrogation techniques. For example, a May 22, 2004, FBI agent's memo about interrogations in Iraq, made public under the Freedom of Information Act, repeatedly cites an executive order issued by President Bush that authorized "sleep deprivation, stress positions, loud music, etc." (The administration denied this and the FBI refused to comment.)

In addition, President Bush's oft-quoted executive order of February 7, 2002, calling for detainees to be treated humanely, by its very terms does not apply to the CIA. That leaves open the question of what standards of interrogation the President laid out for the CIA and whether his failure to impose the requirement of humane treatment on the CIA signaled permission for that agency to engage in torture or inhuman treatment of detainees.

We also know that both Rumsfeld and General Sanchez, then the top military official in Iraq, signed off on coercive interrogation techniques. And that the Justice Department advised the White House in 2002 that "torture may be justified." And that Alberto Gonzales told Bush that he had the authority to exempt people captured in Afghanistan from the Geneva Conventions. And so on.

How much damage have they done? How much pain have they inflicted? No one knows. No one--not even the people who created the monster--knows exactly what it looks like. We get only glimpses.Human Rights First (a former employer of mine) found that:

Since August 2002, nearly 100 detainees have died while in the hands of U.S. officials in the global “war on terror.” According to the U.S. military’s own classifications, 34 of these cases are suspected or confirmed homicides; Human Rights First has identified another 11 in which the facts suggest death as a result of physical abuse or harsh conditions of detention. In close to half the deaths Human Rights First surveyed, the cause of death remains officially undetermined or unannounced. Overall, eight people in U.S. custody were tortured to death.

But that report came out a few years ago. A few weeks ago, courtesy of the ACLU, we got another glimpse of the monster:

Special Forces beat, burned, and doused eight prisoners with cold water before sending them into freezing weather conditions. One of the eight prisoners, Jamal Naseer, died in U.S. custody in March 2003. In late 2004, the military opened a criminal investigation into charges of torture at Gardez. Despite numerous witness statements describing the evidence of torture, the military’s investigation concluded that the charges of torture were unsupported. It also concluded that Naseer’s death was the result of a “stomach ailment,” even though no autopsy had been conducted in his case. Documents uncovered today also refer to sodomy committed by prison guards; the victims’ identities are redacted.

According to both the law of military justice and international law, leaders who order or who fail to stop inhuman treatment are responsible. Yet no officer above the rank of major has been charged in a case involving the death of prisoner in U.S. custody. The most severe sentence handed down in such a case is five months. On the contrary, the military leaders responsible for torture often receive promotions.

What do we do with this knowledge?

For one thing, we can refuse to lie with euphemism. These people--these war criminals are responsible not for "enhanced interrogation techiques" but for torture. Torture and death. But telling the truth, as important as that is, brings us scarcely closer to justice and healing. For all the work done by the ACLU and Amnesty International, for all the courage of whistle blowers, for all the screaming of people like us, we can be sure that unless something drastic happens, the criminals will retire to their mansions and corporate suites.

The most obvious thing that could happen is an investigation launched next year's by Barack Obama's Justice Department. Says Mark Ambinder:

...[I]t remains one of those hidden secrets in Washington that a Democratic Justice Department is going to be very interested in figuring out whether there's a case to be made that senior Bush Administration officials were guilty of war crimes.

Jack Balkin disagrees:

Remember that sections 8 and 6(b) of the Military Commissions Act of 2006 effectively insulated government officials from liability for many of the violations of the War Crimes Act they might have committed during the period prior to 2006. Moreover, as Marty has pointed out, there's a strong argument that a later Justice Department would not prosecute people who reasonably relied on legal advice from a previous Justice Department. Perhaps the Justice Department could argue that the officials' reliance was unreasonable, but that might be difficult to show.

As Holtzman points out, as early as January of 2002, Alberto Gonzalez was very concerned that U.S officials might be prosecuted under the War Crimes Act of 1996, which makes it a federal crime to violate certain provisions of the Geneva Conventions. That's why, under his guidance, Bush exempted people captured in Afghanistan from the Geneva Conventions. But American prisoners in Iraq had protections under the Geneva Conventions; thus those officials in Iraq responsible for torture were exposed to prosecution under the War Crimes Act. They were, that is, until the Military Commission Act passed just before the 2006 midterm elections. Ten Democratic Senators and 34 Democratic Representatives voted for the bill, effectively protecting Bush administration officials from prosecution.

On this question, Barack Obama has said:

What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.

Obama hints at the political difficulties involved. As much as I would like to see an investigation of Bush and the "Principals," I doubt Obama would order one; the political firestorm would dominate his first term.

But there's an alternative approach: Obama, by embracing this issue during his campaign, can convict Bush and the "Principals" in the court of public opinion.

In 2004 John Kerry didn't make an issue of Abu Ghraib for fear that it would soften him to attacks on his patriotism. The issue is no less complex for Obama: for one thing; it would lead him to condemn Colin Powell, whose support he has welcomed.

But what if Obama embraced this issue precisely to articulate his definition of patriotism? What if, when attacked for not wearing a flag pin, he wondered aloud if Dick Cheney wore a flag pin to the meetings of the "Principals"? What if he challenged John McCain--whose previous courage on this issue has failed him--to condemn Bush and his circle for enabling torture? What if on this issue Obama showed as much faith in the American people as he does on other issues?

What if Obama made torture an issue and we all rallied behind him?