On Thursday, April 16, in response to a lawsuit initiated by the American Civil Liberties Union, President Barack Obama released four redacted Office of Legal Counsel memoranda from the Bush administration to the CIA justifying torture or cruel, inhumane, or degrading treatment. (The CIA’s enhanced interrogation techniques were modeled on the Chinese Communist coercive brainwashing program against Americans captured in the Korean War to induce false confessions.) Each memorandum hedged its conclusions with substantial caveats, such as the absence of judicial precedents and concessions that reasonable persons could dispute their exculpatory conclusions. The memoranda were later renounced as bad law.
Obama has set a precedent of whitewashing White House lawlessness in the name of national security that will lie around like a loaded weapon ready for resurrection by any commander in chief eager to appear “tough on terrorism” and to exploit popular fear.
Obama, however, promised non-prosecution of all CIA personnel complicit in torture who relied on the flawed OLC advice. He further pledged to defend them from criminal investigations initiated by foreign jurisdictions and to indemnify them if they are held liable in damages for constitutional or statutory wrongdoing. Obama is similarly defending former OLC Deputy Assistant Attorney General John Yoo against a torture suit initiated by Jose Padilla, convicted of terrorism in 2007 after the government dropped charges that as an “enemy combatant” he plotted to set off a “dirty bomb.” The Yoo memoranda on torture have also been renounced and discredited. Obama also promised to follow the Bush-Cheney duumvirate in claiming secrecy for alleged national-security secrets because “the world is dangerous.” Indeed, he did not voluntarily initiate release of the four OLC memoranda, but responded to a Freedom of Information Act suit. And President Obama has echoed the Bush-Cheney state secrets arguments to block lawsuits challenging the legality of spying on Americans without warrants in contravention of the Fourth Amendment or federal law, or seeking damages for torture. Moreover, Obama has been unable to recite a single instance where transparency proved more dangerous to the liberties of the American people than has secrecy, the birthplace of COINTELPRO, Shamrock, Minaret, Abu Ghraib, and torture of 14 “High Value al Qaeda” detainees in secret prisons abroad (according to the International Committee of the Red Cross).
On the same day Obama was excusing torture and promising more secret government, The New York Times published a front-page story disclosing the National Security Agency’s apparently illegal interceptions of emails and phone calls of American citizens in the United States without individual judicial warrants. The interceptions exceeded even the sweeping group warrant authority to spy on persons reasonably believed to be outside the United States that were authorized in amendments to the Foreign Intelligence Surveillance Act enacted last September. President Obama has declined to sanction a single official implicated in the latest apparent violation of a statute he supported as a senator. He has similarly chosen non-prosecution for former President Bush, former Vice President Cheney, and high-level officials at the NSA and CIA who authorized more than five years of FISA felonies: namely, warrantless NSA spying on American citizens on American soil in flagrant contravention of FISA, about which more anon.
The evidence is now undeniable. President Barack Obama is flouting his unflagging constitutional obligation enshrined in Article II, Section 3 to “take Care that the Laws be faithfully executed.” He is also reneging on his signature campaign promise to restore the rule of law, transparency, and accountability to the White House. He is displaying the psychology of an arrogant empire as opposed to a modest republic in continuing and escalating the Bush-Cheney duumvirate’s global and perpetual war against international terrorism heedless of foreign sovereignties or the lives of civilians.
Even more disappointing, Obama has proven a political coward dangerous to the republic. Before April 16, he had decided against any criminal investigation of the Bush-Cheney duumvirate or their inner circles for their boasted complicity in torture, i.e., waterboarding, which Attorney General Eric Holder has declared is torture. He has similarly declined investigations of extraordinary renditions that have occasioned, among other things, the indictments and in absentia trials of 26 CIA operatives in Milan, Italy, for the kidnapping and torture of Egyptian cleric Abu Omar.
Obama made no effort to square his refusal to investigate credible and substantial evidence of felonies with his constitutional obligation to faithfully execute, not sabotage, the laws. He relied solely on politics, as though law was nothing more than a constellation of political calculations with ulterior motives. Obama insisted that investigations of Bush-Cheney would disturb the Toscanini-like symphony he had promised to the political class in the corridors of power. Comparable political calculations explain why Afghanistan’s President Hamid Karzai declines to prosecute the countless officials implicated in staggering corruption, inefficiency, and subjugation of women—all of which are deplored by President Obama.
In sweeping the Bush-Cheney lawlessness under the rug, Obama has set a precedent of whitewashing White House lawlessness in the name of national security that will lie around like a loaded weapon ready for resurrection by any commander in chief eager to appear “tough on terrorism” and to exploit popular fear. Obama urges that the crimes were justified because the duumvirate acted to protect the nation from international terrorism. But Congress did not create a national-security defense to torture or commit FISA felonies.
President Obama should have invoked his pardon power if he believed circumstances justified the crimes by Bush and Cheney and the CIA’s interrogators. A pardon or lesser clemency properly exposes the president to political accountability, as Bush discovered with Cheney’s Chief of Staff Scooter Libby and President Ford with former President Nixon. More significant, a pardon does not set a precedent making lawful what was unlawful. It acknowledges the criminality of the underlying activity, and acceptance of the pardon is an admission of guilt by the recipient. Pardons leave unsullied the doctrine of Ex parte Milligan (1866): “The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men at all times and in all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”
Obama can be summoned against his own non-prosecution policy, secrecy, and non-accountability. In releasing the four OLC memoranda on April 16, Obama asserted: “Enlisting our values [like the rule of law or transparency] in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals [like the rule of law or government in the sunshine]… I believe strongly in transparency and accountability… The United States is a nation of laws.”
These words should be taken cum granis salis. Bush and Cheney also insisted that everything they did was constitutional and indispensable to thwarting another 9/11. Obama’s promise of change has proven nothing more than verbal jugglery.
Bruce Fein was associate deputy attorney general under President Ronald Reagan, and has authored Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.