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Obama v. the Justice Department
Finally, the pending criminal case in Spain targeting the Bush Six—former administration officials implicated in setting the torture policy—adds another complexity. Spanish prosecutors, who opposed the prosecution of the case after the Spanish attorney general intervened in opposition, told State Department officials that the Spanish case would likely be suspended if the Justice Department were to take up an investigation. A decision by Holder to open a probe would therefore likely protect the Bush Six from prosecution overseas.
On April 21, Levin declassified the Senate Armed Services Committee’s exhaustive study of the treatment of detainees. The report lands a series of devastating blows on Bush administration claims since the Abu Ghraib scandal broke. It firmly links the abuses at Abu Ghraib to abusive interrogation practices that the administration introduced, specifically documenting how the techniques Rumsfeld approved for use at Guantánamo worked their way into the list of approved techniques in Afghanistan and Iraq as well.
It ridicules Pentagon claims that the problems were the product of a “few rotten apples.” “The record established by the committee’s investigation shows that senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Senator Levin said. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. As the committee report concluded, authorizations of aggressive interrogation techniques by senior officials resulted in abuse and conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody.”
Obama’s initial statement that CIA agents involved in the Bush “enhanced interrogation techniques” program would not be investigated or prosecuted was taken at the Justice Department as pushing the boundaries of political involvement in criminal law. But the statement by Emanuel, seen as a distinctly political figure, was perceived at Justice as going beyond those boundaries, according to high Justice officials. Within Justice, if Holder follows the now well-articulated views of the president and his chief of staff, the fear is that the attorney general would be viewed as a political subordinate in the mold of Alberto Gonzales. Ironically, the White House pronouncements have contributed to the momentum for a special prosecutor. That development coincides with the congressional voices now being raised for such an appointment.
Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and The American Lawyer, among other publications.
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Paul Schrodt is a writer living in New York City. He has contributed to New York magazine, Radar, and Esquire.com.
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As vice chairman of Public Strategies and president of Maverick Media, Mark McKinnon has helped meet strategic challenges for candidates, corporations and causes, including George W. Bush, John McCain, Governor Ann Richards, Charlie Wilson, Lance Armstrong, and Bono. McKinnon is co-chair of Arts & Labs, a collaboration between technology and creative communities that have embraced today's rich Internet environment to deliver innovative and creative digital products to consumers.
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Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American Lawyer, among other publications.
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Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American Lawyer, among other publications.
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Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American Lawyer, among other publications.
YARROW
I am glad Obama has finally seen the light on accountability for torture. We hold people that commit small misdemeanors accountable, so we should not have a double standard
bdog33
Follow-up and possible prosecution are critical to prevent future decisions by the executive that would otherwise be made with impunity.
maxpower1013
Some pretty acute and smart people in the Justice Department now
Spasticula
Wow, what a tin ear on this man! He couldn't figure out that we're pissed off about the torture, and had to reverse himself over 2 days?
Th GOP is evil and stupid, but they're right about Dems needing to take a poll to figure out wht the hell is going on.
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pauldeman
Scott, thx for the wonderful reporting. It really helps to clarify the confusion from the past few days. The WH did not handle this issue with their usual aplomb and I am extremely glad that Holder and the DOJ's took this stance. I support the president and love where he is taking us, but we don't need a uber executive branch, a report of the Bush years. This is the first significant sign that the days of political toadies like Alberto and Myers are over. Great news for the country.
Bulldoglover100
How about a timely story? Since Obama gave the go ahead on Tuesday this is old/incorrect news......
AiriqS
All of this leads to one obvious question: Who needs intelligence professionals when you have campaign advisers?
lindumsh
Cool down. Cool down. Cool down. And, please, leave the inflammatory language outside the door. "Incensed"? Is that what the professional lawyers at the Justice Department are in considering statements about future prosecutions for torture?
Where were these self-righteous career lawyers during the Bush years?
The decisions as to whether to prosecute everyone who participated in the numerous activities which may or may not come under the umbrella of torture are certainly political and not purely prosecutorial. The decisions as to what activities are to be considered criminal have always been in the hands of legislatures and political executives, and, certainly, the courts. The decision as to whether or not an act is criminal is not just a prosecutorial finding.
There are some very serious morale issues here. In the real world, higher civil servants require obedience of their subordinates. Do you prosecute CIA individuals who act under the guidance of legal opinions coming out of the White House and, yes, the lawyers of that self-same Justice Department? Are we expecting to have Nurenberg trials in which "following orders" is never an excuse, even in the grayest of areas?
Just cool down. The Obama people also have to face a Congress, particularly on the Republican side, who rarely questioned the behavior of the Bush administration in its conduct of "anti-terrorist" activities.
It may be best to take the entire issue of prosecution for torture out of the hands of the Justice Department entirely. We may really need a Special Prosecutor with his or her own staff.
But, cut the garbage about DofJ lawyers and their suddenly new righteousness.
inexpugnable0199
Are we expecting to have Nurenberg trials in which "following orders" is never an excuse, even in the grayest of areas?
This is why we need to follow due process. Only the legal system has any chance of separating the guilty from the dupes.
camfield
I wish we had more Edward Kennedys and fewer Scott Hortons. Wouldn't it be great if the public could shed the fixation on Bush-administration torture and turn its anger toward the country's lack of an adequate health-care system? I feel that this is somewhat in line with Obama's way of thinking. The problem with torture prosecution also a matter, of who, how many, to what extent where involvement is concerned.
drfadhel
In this case he first flipped but at least he didn't flop, he eventually made the right decision. He is however still flipping and flopping in foreign policy; he chose to boycott the united nations anti-racism conference... caving in to Israeli pressure, and he is letting Israel's shameless Foreign minister Evigdor Lieberman (a self declared anti-Palestinian racist) get away with comments such as "the US will do whatever we want them to do"
mystic
Excellent point. Thank you for highlighting that. Obama pretended to be concerned about racism and obviously, now that he has been anointed "dear leader", suddenly speaks out on behalf of racists like Lieberman.Rahm suddenly informs the American electorate that he, Rahm, really is our "dear leader" because he has been reminded by Israel that he "should not forget he is Jewish'. This is a nightmare.
All I can say is that throughout thousands of years, dictatorships never ever ever relinquish their power by truly democratic means.
inexpugnable0199
I don't know what you mean by "truly democratic" but how about Rome when they cast out the Tarquins?
Iolanthe
"Another Justice Department official observed, 'The department is now in the process of making some very tough decisions about what to do with this extremely complex and difficult matter.'"
I am having so much trouble understanding what is so "difficult" or "complex" about this "matter." The cognitive dissonance I experience while observing the kabuki theater that this administration is performing around the subject of torture -- torture! -- is literally making me crazy.
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n--Y--jdavxcinexpugnable0199
I absolutely agree with you, but the problem Obama has is that once the floodgates are opened, what will stop the water from taking friend and foe alike. Many Democrats have blood on their hands. Corruption is endemic to our system of politics. Obama does not want to be the American Gorbachev.
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n--Y--joebloeRitarita
Barky levinson
I don't want
To go
Ad hominem on you
But you
Are a complete
Asswipe.
Hawnzz
lol :)
inexpugnable0199
How much of this is insight, how much fantasy, sir?
maddymappo
Ram mispoke big time. This is the most serious of all issues - the abuse of power that permits physical and mental torment, there is no way a political decisions should be made to let sleeping dogs lie. These dogs are alive and yelping.
OldCrow
What is the legal liability for members of Congress?
Members of both the House and Senate Intelligence committees were fully briefed and approved of the interrogation tactics.
Thank you.
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