Last week, in response to litigation filed by the American Civil Liberties Union, the Department of Justice released memos that had been commissioned by the Bush administration to "legalize" torture. Any lingering doubts that the Bush administration authorized a far-reaching and sadistic torture program have now been definitively put to rest.
These latest disclosures join a vast and growing body of public information about the Bush-era torture regime. Government documents show that hundreds of prisoners were abused in the custody of the CIA and Department of Defense, some of them killed in the course of interrogations. And a devastating report by the International Committee of the Red Cross – the entity mandated by the international community to assess compliance with the Geneva Conventions – concluded unequivocally that prisoners in CIA custody were unlawfully tortured and disappeared.
Ordinarily such unmistakable evidence of grave criminality would lead to a thorough investigation by prosecutors. But no such investigation is underway. President Obama has already announced that interrogators "who carried out their duties relying in good faith upon legal advice from the Department of Justice . . . will not be subject to prosecution."
On Sunday, Obama's Chief of Staff, Rahm Emanuel, appeared to go a step further, suggesting that even those officials who devised the Bush administration's illegal torture policies should not be prosecuted. Emanuel is not alone: indeed, there is a concerted effort underway in Washington, spearheaded by many of the same lawyers who once advocated the Bush administration's detention and interrogation policies, to portray any investigation of Bush-era abuses as the "criminalization of politics."
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But it would be a grave mistake to foreclose an investigation before it has even begun.
The domestic laws against torture were enacted by Congress; the relevant international instruments – including the Geneva Conventions and the Convention Against Torture – were signed and ratified by Congress.
These statutes and treaties exist to prevent, deter, and punish gross human rights abuses of precisely the kind we've witnessed over the last eight years. To enforce those statutes and treaties would not be to criminalize politics; it would be to enforce the laws as they were meant to be enforced. The danger of politicization comes not from calls to enforce the law, but from calls to exempt the political class from laws that apply to everyone else.
That the infliction of barbaric cruelty on prisoners was purportedly "authorized" by Justice Department lawyers changes nothing.
The universal prohibition against torture has never been, and cannot now be, entrusted to the most craven lawyer a President can enlist to "sanction" policy decisions that have already been made.
If we were to rule out prosecutions of people who followed legal advice – while simultaneously ruling out prosecutions of officials who authored or commissioned that legal advice – nothing would prevent any lawyer for any President from telling any interrogator that he could do anything to any prisoner.
That is a formula for impunity – and, undoubtedly, for future abuses.
Ruling out prosecutions of political leaders would also send a message to the world that Americans approve of the torture policies that were adopted in their name.
The Bush administration developed its torture program in secret, and the American people were never consulted about the program's morality, legality, or efficacy. But at a certain point – a point that we passed several years ago – enough information became public that we could no longer plead ignorance of the facts.
Restoring the moral authority of the United States will require us to repudiate the Bush administration's torture policies, but we cannot credibly do so while we are condoning a cover-up.
President Obama has suggested that he prefers to look forward than to look back, but that is a false choice. While it's crucial that the Obama administration adopt new policies for the future, that doesn't permit us to disregard the abuses of the past. And in a democracy, we do not depend on the goodwill of the president, but on the impartial enforcement of the laws.
Sanctioning impunity for government officials who authorized torture would send a problematic message to the world, invite abuses by future administrations, and further undermine the rule of law that is the basis of any democracy.
The available evidence warrants a criminal investigation. If an independent investigation confirms what already seems inescapable – that senior officials authorized torture – then the Justice Department must do what it was established to do: enforce the law.
ABOUT THE WRITERS
Jameel Jaffer and Ben Wizner are attorneys with the American Civil Liberties Union’s National Security Project.
McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.