By William Fisher
After a three-year investigation, President Barack Obama’s mantra – “it's important to look forward and not backwards” – appears to have trumped the rule of law as a special prosecutor declined to pursue criminal charges against the Central Intelligence Agency operatives involved in the destruction of video recordings of interrogations of “war on terror” suspects.
The human rights community and many legal scholars from both ends of the political spectrum are up in arms about the decision. And they were further angered by the remarks made by former president George W. Bush during television and radio interviews promoting his new memoir, “Decision Points.”
For example, Bush admitted to Matt Lauer of NBC’s “Today” program that he authorized the use of waterboarding on two CIA prisoners. He said further that the technique was legal and that he would make the same decision again.
Lauer then asked him, “Why is waterboarding legal, in your opinion?”
Bush responded: “Because the lawyer said it was legal. He said it did not fall within the anti-torture act. I’m not a lawyer. But you gotta trust the judgment of the people around you, and I do.”
Michael Ratner, President of the Center for Constitutional Rights, spoke to IPS with a hint of despair. He said, “The failure of DOJ to bring criminal charges against the CIA officials who destroyed the tapes of the waterboarding of detainees is another awful decision insuring that the torture conspirators including President Bush will not be held accountable for their crimes -- at least not by the Obama administration.”
“Coming on the heels of Bush's proud confession that he ordered water boarding, we now have a country without a shred of human rights credibility. If the U.S. can torture with impunity, why can't every country?”
“Obama says we need to look forward; sadly, we are looking forward to a future of torture. One hope remains: international justice against the torture conspirators that is currently being pursued in the Spanish courts by the Center for Constitutional Rights and others. If I were former President Bush, my next vacation would not be a visit to the Prado.”
In the opinion of Chris Anders, a senior attorney with the American Civil Liberties Union (ACLU), “I find Bush’s remarks about waterboarding [in the Lauer interview] more important than the narrow issue of the destroyed CIA tapes. That’s because he confessed to war crimes.”
He added, “Everything in our legal history makes waterboarding a crime. Bush said he authorized it. What he should know about the rule of law is that no one is above it. Yet Bush doesn’t seem in the least concerned about the consequences of what he is confessing to.”
Criticism of both the special prosecutor’s decision and of Bush’s remarks appeared to come from both the left and the right of the political spectrum.
A well-known conservative lawyer, Bruce Fein, who was a senior attorney in the Department of Justice (DOJ) under President Ronald Reagan, told IPS, “Obama decided against prosecution for the same reason he has desisted from prosecuting former President Bush and former VP Cheney despite confessing to authorizing waterboarding: political inconvenience or popular opinion.”
Professor Jordan J. Paust of the Law Center at the University of Houston, author of “Beyond the Law The Bush Administration's Unlawful Responses in the ‘War’ on Terror,” charges that Bush’s remarks were “in apparent violation of a court order and does not bode well for the rule of law or the need to end impunity for international crimes.”
“Clearly, former President Bush has admitted that he had a ‘program’ of secret detention (which is forced disappearance of persons, a war crime, and a crime against humanity over which there is universal jurisdiction and a universal responsibility to either initiate prosecution or to extradite) and ‘tough’ interrogation, which included waterboarding (which 29 U.S. cases and 7 U.S. Dep’t of State Country Reports on Human Rights records of other states affirm is “torture” – and if it is not “torture,” it is “cruel” and inhumane, which are also violations of the Convention Against Torture, human rights law, and war crimes under treaty-based and customary international law) among other tactics that are illegal and implicate universal jurisdiction and responsibility,” he charged.
Jonathan Hafetz, a professor at Seton Hall University law school, believes that “The U.S. government’s failure to hold accountable those responsible for the torture and other gross human rights constitutes one the of darkest legacies of our era.”
He told IPS, “The problem with President Obama’s approach is that it is not enough only to ‘look forward and not backward’. Non-action can itself serve as tacit approval for past abuses -- or at least that is how it can be interpreted.”
“The recent comments by Mr. Bush about his knowledge and approval of waterboarding, makes the need for accountability more, not less, important,” he said.
Chip Pitts, a Lecturer in Law at Stanford University Law School, is focused on what he calls the “complicity” between the Bush and Obama administrations.
He told IPS, “The crisis of accountability in America is starkly highlighted by the former president’s public confession of recourse to torture and war crimes. But that should not detract attention from the complicity of the current administration, which has resorted to secrecy and backroom deals that blatantly ignore laws (like the Convention Against Torture, in this case) and the administration’s duty to “faithfully execute the laws.”
In doing so, he added, “the administration cynically capitulates to the entrenched special interests that want nothing more than to remain “above the law” by continuing with unaccountable and profitable
Robert S. Bennett, attorney for the former C.I.A. agent who ordered the tapes destroyed, said in an interview with the New York Times that he was pleased that the Justice Department “did the right thing.”
Leon E. Panetta, the C.I.A. director, said in a statement that the C.I.A. was “pleased with the decision” not to bring charges against agency officers involved in destroying the tapes, and that the agency would continue to cooperate with other aspects of the Justice Department’s investigation.