All Life Is Problem Solving

President Obama has now released the Justice Department “torture memos,” providing legal opinions approving the use of interrogation procedures that many other observers and legal authorities view as clear instances of torture. In releasing the memos, the President has implemented his commitment to transparency in Government. But, at the same time, in asserting that his administration is interested in “looking forward,” and therefore will not prosecute CIA officials who performed “acts of torture” provided these acts followed the policies, guidelines, and procedures laid down by the Bush Department of Justice, he has denied the principle of individual accountability, grounded in International Law and Treaty and applied by the Allies, including the United States in the post-war Nuremberg trials.

In addition, there is the question of whether his decision to abstain from prosecution of the officials is a violation of his oath to uphold the constitution and laws of the United States, a violation he may share with Eric Holder if he proceeds down this path. It is one thing to refrain from investigating and prosecuting possible criminal acts because one lacks the resources, or because there are crimes of higher priority to worry about. It is entirely another to refrain from investigating and prosecuting crimes because one is interested in “looking forward.” It is the duty of the President to enforce the Law, not to make it. If there is a need or an interest in “looking forward,” it is up to the Congress to pass “reconciliation” legislation that would forgive the torturers their acts on grounds that they were following Government Policy. It would then be up to the Executive to refrain from prosecutions in compliance with that legislation. But it is not within the authority of the Executive Branch to decide, based on political criteria, such as the criterion that this is the time to “look forward” rather than to “place blame,” which US laws it will enforce, and which it will decide to make a dead letter.

This is exactly what the Bush Administration did in its administration of justice. And doing the same thing in a different way, and for different reasons, is no more within the authority of the Obama Presidency than the earlier actions were within the authority of the Bush Presidency. However, well-intentioned and well-motivated this decision to refrain from prosecuting torturers may be, it is as lawless as any act committed by the Bush Administration, and is motivated by the same assumption of the supreme power and authority of the Executive Branch of Government that Bush asserted, and that many of us hoped we had rid ourselves of, when we elected President Obama amid such great joy.

Yesterday, and the day before, there has been an extensive reaction to the President’s decision on this matter. I won’t review the reactions of those who advocated continuing to hide the memos, because I consider these reactions both self-interested, and the sort of blatant nonsense that one finds in transparent talking points designed for self-protection, or protection of one’s friends and political allies from facing the consequences of going far beyond the limits of constitutional democracy. However, I do want to present two youtube clips to think about in light of what I’ve said.

The first is from Rachel Maddow’s MSNBC show, and includes a comment by constitutional authority Jonathan Turley, as well as some commentary by Maddow. The second is a special comment by Keith Olbermann from his MSNBC broadcast in the preceding hour. These commentaries are two among many in the media (including blogs) over the past two days. The commentaries are not limited to the left side of the American political spectrum. They’re being offered by any who continue to be committed to the separation of powers, constitutional limitations on the Presidency, and International Law. Now, here are the Maddow/Turley and Olbermann clips.

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From Rachel Maddow Broadcast 04/16/09

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Keith Olbermann Special Comment 04/16/09

There can be no deterrence without punishment. And no punishment without accountability. In releasing the torture memos, and then holding CIA staff members who engaged in torture harmless against prosecution, President Obama has upheld the value of transparency, but denied the importance of accountability, and negated the possibility of punishment. He has therefore, in the absence of credible deterrence, strengthened the possibility that torture will happen again. That there will be a fire next time.