Obama banned torture?

It appears he did not, according to Randolph Brickey writing for CampusProgress:

In fact, the President has not "banned" torture. Torture was illegal before President Bush came to office, through our incorporation of the Geneva Convention into domestic law. (This is to say nothing of centuries of American custom and tradition holding that torture is unconscionable and morally abhorrent.) Members of the Bush administration did not somehow "unban" torture; they simply chose to ignore the law. Torture has not become any more or less legal since Obama took office. Rather, he has chosen not to pretend it is legal, and his indication that he is open to prosecutions or investigations against the architects of the Bush administration's torture policies is a sign that all is not lost for those who want the law to be followed. But however he proceeds, the idea that he has "banned" it, and we can thus moves on, ignores both the severity of the crimes committed by those who tortured, and the grotesque abuses perpetrated upon terrorism detainees — both those who are innocent and those who are not.

Torture, it seems, is a matter of law, and not a policy choice a President may take when it suits him. In fact, as Marjorie Cohn makes clear, "Obama's intent to immunize those who violated our laws banning torture and cruel treatment violates the President's constitutional duty to 'take Care that the Laws be faithfully executed.'" Thus investigating and prosecuting torturers would not violate the sacrosanct principle of avoiding the criminalizing policy differences. It would instead affirm the allegedly unassailable principle which requires the investigation, prosecution and punishment of criminal acts when it is right to do so. Brickey continues:

Obama and members of the press pretend that a step in the right direction is sufficient to fully address years of systematic human rights violations, or at least preferable to an actual public inquiry or criminal prosecution. The illusory ban is set up to take the place of actual enforcement and accountability, as though agreeing to follow the laws means the president has actually worked to changed them. This decision is couched in vague aphorisms of moving forward and stresses the importance avoiding division. But there is very little actual progress here, and it is difficult to imagine how this decision unifies the country when the majority of American support some form of investigation. Furthermore, enforcing our laws is not discretionary but a duty of the office. The President has the opportunity to protect these CIA agents and contractors through presidential pardon if he feels it just or necessary for the national well-being. Obstruction of justice is not a legitimate means towards that end.

A step forward is no accomplishment when it falls so far from reaching the mark required by the law of the land. The upshot: So far, President Obama has merely agreed to follow existing law, as Brickey rightly asserts, something the President was required to do as a matter of course. But that is not all of it. Till this point Obama's actions with respect to the Bush torture regime have only protected past lawbreakers while providing a bit of legal-political coverage for their crimes. With these dubious methods the President has actually conserved the Bush torture regime by securing the liberty of the torturers, by pushing against a legal investigation of their crimes and even by keeping torture available as a practical tool any administration may use when it deems it necessary. Conserving torture as a policy option is one malignant effect of Obama's unwillingness to investigate and prosecute Bush-era crimes. Only the vigorous investigation and prosecution of America's torturers will reverse this situation.

1 comment:

Foxwood said...

Let's go surfin' now
Everybody's learnin' how
Do some waterboardin' with me!