In an inauguration that featured Aretha Franklin, Barack Obama’s adorable daughters and George W. Bush’s last moments as president, it was easy to ignore the Presidential Oath (even if John Roberts screwed it up). The oath, specified in the constitution, mandates that the president must promise to “preserve, protect and defend the constitution of the United States.” The oath indicates that the preservation of the constitution and the rule of law is the president’s foremost responsibility. It’s just that for the last eight years of government-approved torture, you couldn’t be blamed for forgetting this core truth.
We know that the Bush administration broke the law. Does that justify divisive, contentious, unprecedented prosecutions of political officials?
The answer is an unequivocal yes. Obama should be compelled to go forward with some sort of investigation or prosecution because of these three central facts.
- Waterboarding is torture.
- High level Bush administration officials either ordered waterboarding, approved waterboarding or crafted fallacious legal justifications for waterboarding. (Dick Cheney has admitted as much.)
- We already know what happens when widespread lawbreaking in the executive branch is not treated harshly.
Obama, in his first few days in office, has made a point of how serious he is about the rule of law. In a series of executive orders, he “nullified every legal order and opinion on interrogations issued by any lawyer in the executive branch after Sept. 11, 2001.” So, instead of the executive branch thinking that “there are no rules in a time of war,” we are now back to where we should be: with interrogation of detainees governed by U.S. domestic law, international law and the Army Field Manual for interrogation. And, to cap off his restricitng of executive power, Obama’s designated Attorney General Eric Holder has unequivocally stated that waterboarding, the preferred “enhanced interrogation technique” of the C.I.A., is torture.
But even though Obama has reversed the Bush administration’s approval for torture, his transition team has indicated that he has little interest in pursuing prosecutions against the Bush administration officials responsible for the illegal behavior.
Aside from concerns about such a prosecution being both incredibly divisive and unprecendented, they’ll be very awkward for Obama’s political allies. Any investigation in torture would have to delve into the fact that top Democratic lawmakers – including Speaker of the House Nancy Pelosi – were briefed on the C.I.A.’s interrogation program, including specific briefings on waterboarding.
Unfortunately for the Obama administration, the issue of torture and the utter disregard for the rule of law by the Bush administration is larger than these political considerations. That’s because the Bush administration justified the illegal use of torture by saying that the constitution, specifically Article II which says the President is the Commander-in-Chief of the Armed Forces, meant that the President could override domestic laws and international laws against torture in abuse. If America is truly a country that cares about the rule of law, then the the president shouldn’t be able to ignore two ratified treaties — the Geneva Convention, the Convention Against Torture — and a domestic law, the War Crimes Act, just because we’re in a time of war.
Obviously, Eric Holder and the Justice Department should enforce the law when it has been clearly broken. But there’s an even stronger reason why the Obama administration should investigate and prosecute those responsible for approving torture. Without harsh sanctions for those involved, similar expansions of presidential power and lawbreaking will happen again.
In the wake of intelligence agencies engaging in massive surveillance of domestic political groups from the start of the Cold War through the early 1970s, and, in the case of Richard Nixon, surveilling political opponents, Congress attempted to restrict presidential powers. These reforms included the Foreign Intelligence Surveillance Act, which required that law enforcement agents get a warrant from a special court before surveilling a “U.S. person” who they have reason to believe is an agent of a foreign power, and the War Powers Resolution, which mandated that the president could not order troops into war without the authorization of Congress.
Almost immediately, there was backlash from this all-too-rare stripping of executive power. Many conservatives sought to return the executive to its previously powerful position. The fruits of this intellectual labor can be seen in Yoo’s O.L.C. opinions and in the justification for the NSA’s “terrorist surveillance program” – which directly circumvents F.I.S.A. – both of which rely on the claim that Article II of the constitution essentially allows the President to do whatever he wants to protect the country form foreign attack.
We have a clear historical example of what happens when we engage in weak-willed prosecutions and hope that legal or institutional reform will stop horrendous abuses of executive power and lawbreaking in the future. Even if the Obama administration and the Justice Department follow the law for four years and make it harder for future presidents to so blithely disregard it, what happens the next time America finds itself in conflict and has a president who doesn’t really care about the law? If future administrations see that breaking international and domestic law in a time of war (or, as they used to call it, committing war crimes) doesn’t lead to any real punishment, then all of Obama’s laudable reforms will be for naught.