Barack Obama is being given great credit for releasing the memos, although as the president himself points out in his statement, their release was actually required by law. I suppose it's true that the United States government has become so degraded that we must be surprised and glad when a president actually obeys the law when it suits him, but I must say that I can't find any great cause for rejoicing -- especially as Obama's statement immediately and definitely ruled out prosecuting any of the direct perpetrators of these criminal actions.
I know that some are holding on to the hope that Obama's carefully worded statement leaves open the door to prosecuting the actual instigators of the crimes -- the top officials of the Bush Administration, including George W. Bush, Dick Cheney, Don Rumsfeld, and a host of other very senior officials and advisers; but I believe this is wishful thinking in the extreme. Look again at what Obama actually said:
But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.
If Obama truly believes that prosecuting unknown CIA operatives would constitute some kind of disturbing disunity that the country could not bear in the present situation, then how likely is he to pursue the even more "disturbing" prospect of investigating and indicting a former president and his top officials?
And now focus closely on this astonishing phrase:
...we must resist the forces that divide us, and instead come together on behalf of our common future.
It is clear in the context of his statement that "the forces that would divide us" refers to those who are calling for the instigators and perpetrators to be prosecuted. They are the ones insisting on the disturbing, disunifying course of "laying blame for the past." But what, in the name of God, are America's "core values," if they do not include prosecuting people who order and commit the high crime of torture?
And cannot every criminal on the face of the earth now claim the Obama defense: "Surely, your honor, nothing will be gained by spending our time and energy laying blame for the past. So let's forget the fact that I (raped/murdered/robbed/tortured), and move forward, shall we?" For the Obama defense is nothing other than the Nuremberg defense: "I was only following orders. I was given assurance by the highest authority that my actions were legal in all respects." Is this what we have come to? Is that what now constitutes bold, progressive action? Is this, really, part of our "core values," an essential embedded component of our "national greatness?"
The more one considers Obama's remarks, the more offensive they become, and the more flagrantly they insult the intelligence. For the very memos that he has released give the lie to his own statement. Obama says it would be wrong to prosecute CIA underlings for carrying out actions that they were told were legal. Leaving aside the fact that apparently none of these great, courageous, self-sacrificing, vigilant defenders of our "core values" (as Obama lauds them) considered these tortures to be inherently immoral, but simply wanted to cover their ass legally before they wall-slammed the hell out of somebody or poured water down their throats until they began to choke and drown -- the fact is, they were told quite specifically by Bush's White House shysters that there was no guarantee that their actions would be considered legal by a court.
Glenn Greenwald points out the "smoking gun" memo that destroys Obama's entire defense -- for it is a defense -- of the CIA tortures: A signed statement by Steven Bradbury, one of the key paper-pushers in the torture regimen. Bradbury told the front-line torturers:
Given the paucity of relevant precedent and the subjective nature of the inquiry, however, we cannot predict with confidence that a court would agree with this conclusion [i.e., the green light for heinous tortures].
To be sure, Bradbury was politically astute enough to recognize that the essential unity of America's power-structure elite means that it is almost impossible for anyone who would genuinely and actively pursue imperial crimes to ever reach the top, for he added:
...the question [of prosecution for the torture techniques] is unlikely to be subject to judicial inquiry.
And just as Bradbury foresaw, Obama has slammed the door shut on such judicial inquiries.
In the overblown, self-regarding prose that has become his trademark, Obama lauds himself and his administration for their fealty to the "rule of law" in releasing the memos. But of course, the "rule of law" also dictates that those who have planned, ordered and committed torture be prosecuted. The law has no special dispensation for crimes that might be "too disturbing" to prosecute. And so his ringing conclusion -- "we have taken steps to ensure that the actions described within them never take place again" -- rings completely hollow. How will failing to prosecute the perpetrators of these crimes deter any future perpetrator in high office? The latter will know that their crimes will be "too disturbing" to prosecute -- in much that same way that the biggest fraudsters on Wall Street today are "too big to fail," and must be allowed to escape the consequences of their actions.
In the end, of course, it doesn't matter. This story will be buried in a day, or less, just as all the other many, many stories about the American torture program have been buried, year after year after year. And even this story -- as morally repulsive as it is -- deals only with the tip of the iceberg of America's global gulag. It refers only the CIA's treatment of a very limited number of high-profile prisoners. Yet tens of thousands of people have passed through the belly of the gulag beast, where many have been tortured, held captive for years, even murdered. And not only is this still going on, but the Obama Administration is moving strenuously in court to drive these captives even deeper into limbo, asserting that no one who is plunged into the netherworld of America's little Gitmos in Afghanistan has the slightest right to any tincture of legal redress -- even if they had been kidnapped from the streets of some foreign city and "renditioned" to Afghanistan.
The old crimes are being written off; the new crimes keep going on.
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This story was published on April 17, 2009.