With their 225 votes to sue President Obama, House Republicans provided one of the most ironic spectacles in recent U.S. political history.
After waves of op-eds by Speaker John Boehner (here and here) and his legal puppet master David Rivkin (here and here) declared Obama guilty of almost every sin in the book, the House resolution ultimately focused on the president's delayed implementation of the Affordable Care Act's employer mandate. It's not just that government wasn't ready to implement the requirement for business insurance coverage for 2014 (a requirement Boehner and his Republican allies opposed), but that in 2006 President George W. Bush similarly pushed back the enrollment deadline for his Medicare Part D prescription drug program. If congressional Republicans were so concerned about executive branch lawlessness, they could have sued or sought the impeachment of President Bush for his illicit program of domestic surveillance over which his entire Justice Department leadership team threatened to resign in March 2004. And compared to his recent predecessors, President Obama has been historically restrained in his use of executive orders.
Nevertheless, House Republicans are proceeding with their impeachment foreplay for the GOP base. On Thursday, Speaker Boehner explained why:
"This isn't about Republicans or Democrats. It's about defending the Constitution we swore an oath to. Are you willing to let any president choose what laws to execute and what laws to change?"
Of course, Boehner was more than willing when Republican George W. Bush sat in the Oval Office.
But the ironies of the House lawsuit don't end there. After all, there is a body of U.S. and international law that Barack Obama refused to faithfully execute as president of the United States. Under our laws, torture isn't just a crime; the United States is legally obligated to prosecute its perpetrators. And despite the confessions of President Bush and Vice President Cheney, that is precisely what President Obama refused to do.
Follow below the fold for more.
As Marjorie Cohn detailed in October 2012, the United States has "a legal duty to prosecute torturers":
The US has a legal duty to prosecute those responsible for torture and abuse, or extradite them to countries where they will be prosecuted. When we ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), we promised to prosecute or extradite those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.
President Ronald Reagan certainly thought so
. In his May 20, 1988, signing statement on the Convention Against Torture, Reagan noted that it "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment." As the Gipper explained in his message to the Senate:
The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.
In February 2010, Scott Horton pointed out that the while legal action against members of the Bush torture team would be an extremely difficult task, in this case the prosecutors would have one major piece of evidence in their favor:
Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?
To be sure, Bush and Cheney proudly owned up to their roles
in creating the regime of detainee torture they described as "enhanced interrogation techniques."
In his 2010 memoir, Decision Points, the New York Times reported, "Mr. Bush says he personally authorized the use of such techniques sometime after the capture of a suspected Al Qaeda operative, Abu Zubaydah, in March 2002. He says he rejected two techniques the C.I.A. wanted to use because he felt they went 'too far, even if they were legal,' but approved the rest--including waterboarding." Earlier that year, the former president made the same point to a business audience in Grand Rapids, Michigan:
"Yeah, we waterboarded Khalid Sheikh Mohammed," the former president said during an appearance at the Economic Club of Grand Rapids, Michigan, according to the Grand Rapids Press.
"I'd do it again to save lives," he added.
If that sounds familiar, it should. Back in February 2010, Dick Cheney bragged to ABC's Jonathan Karl
, using almost the exact same terms:
I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques ....
In that same ABC interview, Cheney explained why he was daring Attorney General Eric Holder to either charge him or, through inaction, essentially bless a torture program conducted by the United States of America:
The reason I've been outspoken is because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do.
(It is worth noting that former National Security Adviser and Secretary of State Condoleeza Rice
came up with a defense worthy of Richard Nixon. As she explained to a group of her angry students at Stanford University, "The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.")
As a horrified Horton responded in amazement:
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.
Alas, it was not to be. Despite the agreement by President Obama, Attorney General Holder and the Senate Intelligence Committee's John McCain
that waterboarding constitutes torture, Bush, Cheney and their henchmen never faced justice for authorizing torture and forever staining the honor of the United States.
As a candidate for the presidency, then then-Sen. Barack Obama denounced waterboarding as torture. "It's time to stop the political parsing and to close the legal loopholes," Obama said on October 29, 2007. "Waterboarding is torture, and so are other 'enhanced interrogation techniques' like 'head-slapping' and 'extreme temperatures.' It's time to reclaim our values and reaffirm our Constitution." As President, Obama reiterated his belief in the illegality of the Bush administration torture techniques. As recently as his May 2013 speech at the National Defense University, President Obama declared:
In some cases, I believe we compromised our basic values -- by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law... We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.
Yet even he before he was sworn in, President-elect Obama
made it clear that the Bush torture team need not fear punishment from him:
We need to look forward as opposed to looking backwards.
From a political and economic perspective, Obama's fear of looking into that rearview mirror was understandable. After all, the economy he inherited from President Bush was in free fall. In the last quarter of 2008, GDP collapsed by 8.9 percent; 2.2 million jobs evaporated in the first quarter of 2009 alone. With the economy requiring immediate action and his ambitious agenda for 2009, President Obama was afraid to risk a total political conflagration in Washington by launching the kind of investigation the Bush administration's possible war crimes demanded.
So Obama signaled to Team Bush and its Republicans allies there would be no accountability for their high crimes and misdemeanors. And he did so by reducing war crimes to a talking point conservatives love most: "criminalizing politics." 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.
Ultimately, 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:
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...
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.
But spending that time and energy was never about "laying blame for the past," but redeeming American values by holding America's leaders to account for failing to uphold those values—and the law. As George Washington University Professor Jonathan Turley, now a supporter of the House GOP lawsuit against the president, put it in 2010:
Because it would have been politically unpopular to prosecute people for torture, the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point.
And a Republican talking point at that. After all, what Eric Holder called "criminalizing policy differences," is the standard defense Republican miscreants have used for decades 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 those 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 that the new president was "criminalizing conservatism."
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...
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.
But over five years later, no "patriotic official" has been indicted, no judges have been impeached and no professor has been stripped of his academic tenure—not even the one who defined torture
as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." In June, John Yoo
was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee
remains on the federal bench. Cheney's legal alchemist David Addington
is now creating alternative realities at the Heritage Center. Psychologist James Mitchell
, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lose his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." Jose Rodriguez
, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who has smeared the soon-to-be-released Senate Intelligence Committee report
on the CIA torture program despite having never read a word of it. Meanwhile, Dick Cheney
appears regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush
is free to paint himself in the shower and give speeches to "replenish the ol' coffers."
Yet to hear John Boehner and other regurgitators of the GOP's "Club Gitmo" talking point, President Bush's only crime was treating detainees too well:
I don't know that there's a terrorist treated better anywhere in the world than what has happened at Guantanamo. It is - we have spent hundreds of millions of dollars to build a facility that has more comforts than a lot of Americans get.
Predictably, Republicans reacted to President Obama's olive branch agreement not to "look backwards" at the Bush administration's regime of detainee torture by nevertheless unleashing "furies that will haunt his presidency." Now, the near unanimous GOP votes against the stimulus and Obamacare, the record-setting use of filibusters, the unprecedented obstruction of judicial nominations and the threat the commit national economic suicide over raising the debt ceiling will be joined by a lawsuit to "to compel President Obama to follow his oath of office and faithfully execute the laws of our country."
But among those laws are the federal statutes and treaty obligations that require the president of the United States to identify and prosecute torturers in the country's midst. As the soon-to-be released, declassified version of the Senate Intelligence Committee's report on torture will apparently show in horrifying detail, under President Bush and Vice President Cheney, the CIA engaged in practices about which, the State Department now claims, "no American is proud."
Well, some Americans are proud of what they did. But none of them was ever prosecuted for it because when it came to torture, President Obama did not faithfully execute the law of the land.