(And make no mistake; Obama has not only decided to let the actual, ground-level waterboarders, wall-slammers and child torturers get off scot-free; he is also going to let the gilded creators and framers of the system live on untroubled in peace, prosperity and privilege. Obama's chief gatekeeper and hatchet man, Rahm Emanuel, made this clear over the weekend, telling Beltway waterboy George Stephanopoulos: "But those who devised the [torture] policies – [Obama] believes that they were — should not be prosecuted either.")
Leaving aside the moral perversion of this action, consider what a boneheaded move it is politically. By releasing the memos, Obama has guaranteed the enmity of many powerful factions in the security organs -- the secretive, lawless, military-covert complex that holds such vast and deadly sway over imperial affairs. Yet by promising not to prosecute any of them for their glaring misdeeds, he has merely angered and embarrassed them to no good purpose. He has allowed them to roam free around the political landscape, denouncing and deriding him at every turn in the corporate media that is only too happy to treat torturers and mass-murdering war criminals as respectable, "serious" figures in affairs of state.
They won't thank him for absolving them of their capital crimes -- any more than they will thank him and laud him for his "continuity" of their imperial aggression in the never-ending Terror War. As we have often noted here, all of the major factions in America's imperial system share the same basic values and goals: the domination of national and world affairs by a wise elite -- who are of course entitled to a lion's share of power and privilege in return for bearing the terrible burden of leadership for the ignorant herd. (For a quintessential expression of the elite's underlying philosophy, see Dostoevsky's chapter on "The Grand Inquisitor" in The Brothers Karamazov.) However, the broad agreement on general themes means that much smaller differences over details will be fought all that much more fiercely, as factions jockey for position. Hairsplitting factional differences within a general movement often produce savage energies far out of proportion to the difference itself (much like the splitting of the atom): a dynamic that Lenin, for example, utilized to such great and vicious effect throughout his career. But you can see it anywhere and everywhere -- in the office, in a family, in a church. In the case of American politics, the imperial factions viciously exploit their minute differences in order to retain -- or regain -- the top rungs of power. The fact that they all share a general belief in the system doesn't matter in the primitive, gang-style mentality that rules our politics.
And so in this regard, Obama has made an egregiously stupid mistake. He has given his imperial rivals a big stick to beat him with, while failing to strike any kind of genuine, substantial blow at them. If he had instigated investigations and prosecutions across the board, bringing the full power of the state to bear, they would have spent the next few years reeling and squealing and scrambling to save their skins. Instead, he has shown that he is unwilling -- or too weak -- to do them any real harm in the factional warfare at court. And of course he continues to advance their own policies of militarism, authoritarianism and oligarchy at home and abroad, so he is obviously no threat to them at all on that score. (He would never have reached the White House if he was.) They will merely bide their time, disgorge their bile, and use their freedom and tranquility to undermine or stifle any minor mitigations of the system's excesses that the current imperial management might attempt from time to time.
Thus even in the amoral context of political gamesmanship, Obama's policy of transparency without accountability is a maladroit botch. Much like torture itself, it is hugely self-damaging -- and doesn't even work.
Of course, the political imbroglio ignores the fact that Obama is absolutely obligated under the law to investigate and prosecute credible allegations of torture by government officials. Despite the deep, wise analysis of Rahm Emanuel, prosecuting torture is not a "decision" that Obama can make or not as he sees fit. It is a legal requirement under the UN Convention Against Torture, which the United States signed, thereby making it part of binding U.S. law. Not only does Obama's failure to prosecute constitute an illegal act in itself, the very excuses he offers for his action -- that CIA operatives tortured in "good faith" because the White House told them it was OK -- are specifically rejected under the torture law, as ThinkProgress reports:
Indeed, Article 2 of the convention on torture explains that “no exceptional circumstances whatsoever” can be used to legally justify torture. Further, the convention states that an “order from a superior officer or a public authority may not be invoked as a justification of torture.”
[In an interview with the Austrian newspaper Der Standard, UN Special Rapporteur on Torture Professor Manfred] Nowak explained that by invoking the OLC’s memos as justification for the actions of CIA agents against terrorist suspects in U.S. custody, Obama is acting contrary to U.S. obligations under the treaty:
STANDARD: In other words, by making this announcement, Obama has violated international law?
NOWAK: Correct. It is a violation of binding international treaty law in this case, because this is an international law convention — and it provides unequivocally that states are not merely obligated to make torture a crime, but also to prosecute any incidents of which credible evidence can be found.
None of this comes as any surprise, of course. It was clear during the presidential campaign that candidate Obama was not going to prosecute anyone for torture. As we noted exactly one year ago, drawing on an interview that the then-candidate gave to the Philadelphia Daily News:
Obama says that any decision to pursue "investigation" of "possibilities" of "genuine crimes" would be "an area where I would exercise judgment." He stressed the need to draw a distinction between "really dumb policies and policies that rise to the level of criminal activity." He said he would not want "my first term to be consumed by what would be perceived by Republicans as a partisan witch hunt."
He then tied his thinking on torture, illegal wiretapping, aggressive war and all the other depredations of the Bush Regime to his stance on impeachment:
"I often get questions about impeachment at town hall meetings. And I've often said, I do not think that would be something that would be fruitful to pursue. I think impeachment should be reserved for exceptional circumstances."
In other words, very strong, credible, evidence-based charges of launching a criminal war of aggression based on deception is not an "exceptional circumstance" worthy of the investigative and prosecutorial process of impeachment. It might just be a "very dumb policy." Very strong, credible, evidence-based charges of knowingly, deliberately creating a regimen of systematic torture is not an "exceptional circumstance" worthy of impeachment; it might not even be worth further investigation by the Justice Department. It too could just be a "dumb policy" that we should forget about – especially if Republicans are going to make a fuss about it.
Now all of that has come to pass. The Iraq War, far from being a war crime worthy of investigation -- or even a dumb policy -- is now "an extraordinary achievement," Obama says. As for obeying the law of the land and prosecuting officials for ordering and carrying out heinous tortures, we are told to forget it and just move on. Trust me, says Obama -- even as he outstrips George Bush in making aggressive claims for authoritarian power; even as he seeks to strip helpless, nameless, renditioned captives in Afghanistan of any shred, any crumb of legal redress; even as he (and his liberal champions) promote the use of a Pentagon interrogation manual that still allows a range of practices that any decent person would consider torture; and even as he promotes some of the key CIA officials overseeing the torture program to even greater heights of power.
I don't pretend to know all the ins and outs of the political considerations behind Obama's decision to release the torture memos but protect the perpetrators. And this of course is one of the major drawbacks of any "process" piece: a lack of information on the process itself -- coupled with the unfathomability of that ever-shifting mixed bag of conscious and unconscious impulses that we call "motivation" or "intention."
But actions and end results speak far more loudly than words or intentions. Obama's illegal absolution of Bush's torturers -- and his continuation of the gulag, the Terror War and the tortures of the Pentagon manual -- are not suppositions. They are facts -- deadly, disgraceful, degrading facts. And we have seen, time and again, just what such facts produce: more suffering, more extremism, more upheaval, more corruption.
We are not done with torture in America; not by a long shot. And note that the current non-prosecution scandal -- as heinous as it is -- only deals with the tip of the iceberg: a very small CIA program for "high profile" detainees. Literally tens of thousands of other people have passed through the guts of the American gulag -- and are passing through there still, in Bagram, Baghdad, Diego Garcia, and other points known and known (including the torture chambers of client states and proxies). Nor does the controversy encompass the tortures that go on every day in America's overflowing state and federal penitentiaries, corporate prisons and country jails. As we noted in that piece last April:
You cannot compartmentalize the evil of torture. You cannot tame it, domesticate it, separate it into neat categories. [Nor can you sanitize it and "forget" it, as Obama is now trying to do.] It is a sinister acid that eats through all walls, and spreads throughout any system or organization that practices it. You begin with "light slapping" and loud music, and you end up with waterboarding, beating, and murder. There is no exception in human history to this process.
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This story was published on April 21, 2009.