Despite our President-elect’s promises during his campaign that the United States would reject torture on his watch, there are troubling signs that the Obama era will see no prosecutions and zero accountability for officials in the Bush administration.
Speaking Sunday on ABC’s “This Week with George Stephanopoulos,” President-elect Obama signaled that he intends to “look forward as opposed to looking backwards … to focus on how do we make sure that moving forward we are doing the right thing.” He said he would leave some of these decisions to his attorney general, not ruling out investigations but nonetheless suggesting a strong disinclination to prosecute anybody for war crimes and other violations of U.S. and international laws.
This would be a devastating mistake and would squander the goodwill of the world toward our new president. How could an Obama administration credibly assert that it had restored the rule of law to our government while failing to bring the Bush administration to justice?
Political commentators — including Yale Law School professor Jack Balkin in The New York Times this weekend — have suggested a “fact-finding” or “truth commission” approach, arguing that the primary goal of any post-Bush accountability should be to make the whole range of “what happened” publicly known. While there is value to unearthing the whole truth, there is also danger that this project will obscure how much we already know.
Legal experts have argued there is already ample evidence to prosecute Bush administration officials and others with “command responsibility” for their conduct in the “War on Terror,” including for violations of our laws against torture and for executing illegal domestic surveillance programs. There is also plenty of evidence of other fiascos that may have involved criminal activity — such as the (mis)use of Iraq reconstruction funds — that deserve the immediate attention of federal investigators.
So what are we waiting for? To ensure that trials meet the highest standards of fairness, we must begin prosecutions as quickly as possible, while evidence is fresh and before public memory of the Bush era has begun to fade.
Such moves are not merely, as Obama and many opinion-makers of the Washington consensus have asserted, about “looking backward.” The question with the most votes on Change.gov’s “Open for Questions” forum, from activist Bob Fertik of New York, is, “Will you appoint a special prosecutor — ideally Patrick Fitzgerald — to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping?” The question’s popularity suggests that many Americans share the belief that how we account for the past is a vital part of how we create change for America in the long term.
Also on Sunday, Obama made very troubling suggestions about the closing of Guantanamo. Though we have learned since that he is planning to issue an executive order early in his presidency to close the notorious prison, it is not expected to close for at least a year. The delay stems from the president-elect’s apparent desire to continue to imprison some of these detainees inside the United States, even if the evidence against them was “tainted” because it was obtained through torture and is therefore inadmissible in court. He argued we need a new process to accommodate them, one “that doesn’t result in releasing people who are intent on blowing us up.”
But this claim flatly contradicts our traditions of criminal jurisprudence in this country — traditions formed partly out of the Civil Rights era — which insist that when the state violates fair standards of due process such violations trump whatever crime may or may not have been committed. There should be absolutely no exception for the case of accused terrorism. If there is no legitimate evidence (and indeed, evidence obtained by torture simply cannot be considered legitimate evidence) against a suspect, then he should be released, either to his home country or to some safe haven — period.
The president-elect is right that we absolutely need to look forward, but we can only do so through a full and thorough accounting of the past. Without prosecutions of Bush-era violations of the law we will likely see domestic opposition to torture evaporate. The world will not take seriously Obama’s stance against torture, moreover, if he creates some new pseudolegal process for trying Guantanamo detainees.
We must demand that the new administration commit to pursue investigations and prosecutions of Bush officials if we are to prevent the president-elect from making such a mistake. We must further show him that Americans are serious about restoring fundamental respect for human rights and the rule of law to our government. Only by raising our voices in favor of accountability and justice can we move our country forward.
Hugh Baran is a senior in Davenport College.