Update on torture prosecutions
posted by Sonja Starr
Quick update: President Obama has now announced that he has not ruled out prosecuting the architects of the Bush Administration’s torture policy. While this announcement is technically consistent with his statement last Thursday (which promised only that the actual CIA interrogators would not be prosecuted), the President appears to be backpedalling from his broader suggestion that it’s time to move on rather than seek “retribution.” I think this is a positive development–as I explained in my Friday post, given that there is fairly strong reason to believe that torture occurred, the Convention Against Torture clearly obligates the United States to undertake a serious criminal investigation and to bring appropriate prosecutions if the evidence supports it.
April 21, 2009 at 6:10 pm
Posted in: International & Comparative Law
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Responses (4)
Patrick S. O'Donnell - April 21, 2009 at 8:30 pm
Yes, but it is inconsistent with what the Washington Post (R. Jeffrey Smith) reported just yesterday:
The Obama administration opposes any effort to prosecute those in the Justice Department who drafted legal memos authorizing harsh interrogations at secret CIA prisons, White House chief of staff Rahm Emanuel said yesterday.
Some analysts and lawmakers have called for investigations and possible prosecution of those involved because they say four of the memos, disclosed last week by President Obama, illegally authorized torture. Emanuel’s dismissal of the idea went beyond Obama’s pledge not to prosecute CIA officers who acted on the Justice Department’s legal advice.
“It’s not a time to use our energy and our time in looking back” out of “any sense of anger and retribution,” Emanuel said on ABC’s “This Week.” His remarks reflect the White House’s effort to claim a middle ground after the release of the memos, which had been top secret, angered backers of the Bush administration’s interrogation policy.’
Anyway, thanks for reporting this encouraging development. Maybe someone in the Obama administration is reading the law blogs (from Opinio Juris to Balkinization to Concurring Opinions and the Legal Ethics Forum…)!
Re: “retribution”—
Emanuel’s words and the Obama administration’s reasoning are better suited to a personalist discourse reliant on terms intrinsic to the context of moral psychology and even spirituality. But whatever truth they have at the intrapersonal and (by effect) interpersonal level, they are simply beside the point when it comes to following the rule(s) of domestic and international law. It of course may very well be true that some if not many of those interested in pursuing the legal case against the CIA torturers, Bush administration officials, and OLC lawyers who facilitated and legally blessed torture and cruel, inhuman and degrading treatment of prisoners (i.e., denied them humane treatment and due process of law) have less-than-worthy motives, but that is one reason why we subject ourselves to the rule of law, so that such motives are not wholly determinative of legal and other processes and outcomes. And, in fact, in many respects criminal justice represents the sublimation if not transcendence (and thus not simply the canalization) of unjustified anger (or anger that subverts our rational ends) and tit-for-tat retribution (or vengeance).
[If I may: I'm assembling a not-too-long reading list of books and articles on the ethics, law and politics of torture, especially with regard to the U.S. and recent debates. It should be posted in a day or two at the Ratio Juris blog. If anyone has an article they think merits inclusion, please send it to me.]
SL - April 22, 2009 at 3:15 pm
“Architects” seems overly broad, because the AP article you link to talks only about the lawyers that wrote the memos. Those lawyers were more than scriveners, to be sure, and they played a crucial role. But they did not act alone.
Was this man the architect, or at least one of them?
http://www.newyorker.com/archive/2006/07/03/060703fa_fact1
He is a lawyer, but not on the memos.
Sonja Starr - April 22, 2009 at 3:46 pm
SL–you’re right that the AP article focuses mostly on the lawyers, but Obama’s statement was actually vague in that regard, as the article notes toward the end:
“Yet it was unclear exactly whom Obama meant in opening the door to potential prosecutions of those who ‘formulated the legal decisions.’ Press Secretary Robert Gibbs was asked if the president meant the lawyers who declared the interrogation methods legal, or the policymakers who ordered, them or both.
‘I don’t know the answer to that,’ Gibbs said during a briefing in which he was peppered with questions about the president’s words.”
Patrick, you’re right that Emanuel’s statements over the weekend were inconsistent with the President’s recent statement (notwithstanding the efforts of the White House to reconcile them). Emanuel’s statement fit with the tenor of Obama’s statement from last Thursday, though Emanuel went a bit further. I think this suggests that the most recent presidential statement reflects a rethinking, not just a clarification, of the “time to move on” position announced last Thursday. In any event, I think it’s fair to say that the President’s latest statement trumps a prior statement of his chief of staff, so we can assume that the current policy is that investigation and prosecution are back on the table. I’m not too concerned about flip-flopping here–consistency in the Administration’s statements is less important than ultimately getting this decision right.
Patrick S. O'Donnell - April 22, 2009 at 5:07 pm
Sonja,
I agree.
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