Annals of Torture: End Of The Story?

Andrew Cohen: Obama Follows Long Precedent Of Wrongly Immunizing His Predecessors

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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What a remarkably good day it has been for Alberto Gonzales, John Yoo, and Jay Bybee (who is now, inexplicably, a federal judge). In the span of just a few hours, those ignominious men and dozens more learned that they would be spared from prosecution either here in the United States, where they formulated our odious torture policies, or in Spain, where or upon whose citizens those illegal policies were evidently practiced. Somewhere, Dick Cheney is smiling.

One by one, the hammer blows fell upon civil libertarians and millions of other Americans who believe that the people who legally sanctioned and then implemented torturous “enhanced interrogation tactics” should have had to defend their conduct in our courts of law. One by one, those enthusiastic supporters of the Obama administration’s legal values and policies realized that they had just lost a battle (been wiped out, in fact) that they had every reason to believe they would win. There will be no torture trials. Period.

First, the Justice Department announced - as it was slickly releasing still more “torture memos” - that it would not just pass on prosecuting any Bush-era offenders but offer those very same offenders indemnity from prosecution or even Congressional investigation.

This means that former Bush officials will be given legal support by the U.S. government if and when they are questioned about their role in water-boarding and other tactics. Merry Christmas, John Yoo; you may go down in history as one of the worst government lawyers ever but at least you won’t have to stand in the dock.

Then, a few hours later, Spain’s attorney general announced that he, too, was not inclined to prosecute any former officials over torture if the United States itself wasn’t so inclined. The announcement represented a complete turn from the direction most legal experts believed the Spanish investigation was taking - we had been told to expect an indictment this week! - which means either that all of those experts were wrong or that our government exerted extreme political and diplomatic pressure upon Spain to back off. I’ll let you decide that one.

And poof, just like that, in a single afternoon, the entire world changed in the legal war on terror. President Obama declared that it was a “time for reflection and not retribution” but there is a vast middle ground between those two and plenty of smart lawyers and judges out there who believe that prosecuting government officials in these circumstances - circumventing recognized law - would not constitute “retribution” so much as "justice." In any event, we’ll apparently never know. We were left instead with pap (“We cannot undo the past”) from Dennis C. Blair, the Director of National Intelligence, who should have just saved his computer’s memory and not written anything.

Certainly the torture memos themselves won’t do the trick. The ones released today - appalling though they are - do not tell us more than specifics (gruesome ones) about ungainly facts that we have known for years. The banality of the memos is sickening and so, of course, is the way in which their reasoning and logic and authority were followed by so many people for so long within the Bush Administration. Speaking of which, here’s the joke of the day: former Deputy Secretary of State Richard Armitage telling Al-Jazeera, Hamlet-like, that he would have resigned had he known we were water-boarding. Please. Sell that to the five people in the world who are buying it.

In any event, now the world knows that the Obama Administration doesn’t want to fully look back to understand how it could come to pass as a matter of law that our nation would torture. The federal courts cannot initiate there own investigations or cases. So the nation turns its lonely eyes to Congress. Senate Judiciary Committee Chairman Sen. Patrick J. Leahy, D-Vt., has said for months that he favors a blue-ribbon “torture commission” that would truly (i.e., with subpoena power) investigate this matter. Will he now push forward with such a review? Or will he fold like a cheap umbrella the way Spain did today?

For the pro-prosecution gang, about the only bit of encouraging news came from Sen. Russ Feingold, also a Democratic member of the Judiciary Committee. He issued a release late in the day suggesting that the government’s acknowledgment of immunity and indemnity only extended to the lower-level military officials who engaged in water-boarding and not to the men who drafted those memos, men like Steven Bradbury, the Office of Legal Counsel lawyer who just two months ago so publicly trashed his fellow traveler, John Yoo, over the matter. If Sen. Feingold is correct, if he’s on to something, then this story may yet live another day. But I wouldn’t bet on that.

Otherwise, and in the absence of a torture commission, we are effectively done with any sort of official exploration of our torturous past. Culpable men of one administration will hereby be protected by men of another administration. Nixon went to war with the New York Times and the Washington Post over the Pentagon Papers to protected Kennedy and Johnson. Obama now has thumbed his nose at some of his most enthusiastic supporters to protect some of Bush’s men. And on and on it goes. Why anyone truly believed that this centuries-old dynamic would change, even with a man who made “change” his campaign tune, is beyond me.

[YacktyYack]

I hope people are still reading this article. Bybee's opinions as Federal Judge can offer nothing positive to the rule of law in this country. His principles are flawed by personal ambition with an obvious willingness to sacrifice the individual liberties of others for personal gain. Get him off the bench..

[truth_police]

A superb article. Administering Justice has absolutely nothing to do with "retribution" and to claim that the "administration of justice" is tantamount to retribution is to trash our entire legal justice system. The primary purpose of the "administration of justice" is to serve as a deterrent to discourage others from believing they can hold themselves 'above the law' WITH IMPUNITY. If others know that dire consequences from their unlawful actions are sure to follow, with dead certainty, they will be reticent to take that step outside the law. The message Obama persistently sends is the same message every American has become so sick of hearing, namely, that if you are a wealthy political power player at the top of the deck, you can trash any law you want to trash, and by God you can do it with total, unconditional, guaranteed impunity. That is what Obama and history has adamantly taught us. That's what happened to Nixon and Scooter Libbey and Clinton, and that is the way it is always going to be in this country. And that is precisely why the sleaziest elements of this society are easily identified and located at the top of the political heap, at the highest levels of government . . . WHERE THEY KNOW THEY WILL BE SAFE FROM THE short arms of the Legal Justice System, if we can really call it that.

[bubbee4]

Well said, Mr. Cohen.
One silver lining: the Spanish judge, Baltasar Garzón, HASN'T dropped the case, and can still pursue investigations over the objections of the Spanish Attorney General (as he did in the Pinochet investigation).

[familyguy38]

This is a knife in the cold black heart of the GOP.

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Terrorists couldnt have done a better job!

[familyguy38]

briannorwood - Like I said, it wasn't evil when the Clinton administration was doing it to its own military men and women and I guess its still not evil under the Obama administration.

[briannorwood]

familyguy38:

I am sorry sir, but you are wrong. The reason you or your men were put through this training was to teach you how to endure torture. This, sadly is what the previous administration unlawfully authorized our military interogators to do.

Did you ever imagine the day, when you were serving in our armed forces, that you would ever be called upon to defend our own government for using torture?

My guess is that is not the Constitution you were fighting to defend.

[familyguy38]

I am so saddened by what is happening to our country. I am a retired Marine/Naval officer. In the early 90?s I went through ?survival evasion, resistance, escape? training known as SERE for the Navy. Later, the CIA developed it?s interogation techniques from the SERE program. At SERE they taught us how to resist and survive torture. They used many of the techniques listed in this memo in order to train me. I was stuck in a dark cramped box for hours, put in pressure positions, deprived of sleep, doused with cold water, slapped in the face, forced to urinate and deficate into a folgers coffee can and then had to sit with that can in a very small cell (about 2.5 X 4 X 3) for hours at a time. I never got waterboarded but about 25% of us did. These activities weren?t considered torture then. What happened? The answer is that for political gain, the left characterised everything that George W. Bush did as evil. Well, it wasn?t evil when the Clinton administration was doing it to it?s own military men and women. And in fact, it?s not evil now. None of these techniques is torture. None of them caused any severe pain or threatened the lives of our military men or enemy combatants that we used them on. They?re only considered torture now because the democrats had to use that word in order to achieve the greatest effect in their attacks on Bush. For all of you who are outraged by these techniques, I wish you could be aware of what you?ve done to our country with your pettiness. The next time we need information from a terrorist he will laugh in our faces. I know I would.

[LDG-1]

ABC readers,I expected something of a review or congressional hearing on the matter of torture as this story goes allot deeper when the jails in this Country do the same thing.Many followed suit have held persons who were not even filed on for charges.Some are put thru mental torture in metal boxes called "the hole".They still do it if the prisoner is unruly.You would be too if you got set up by some renegade sheriff/chief of police/Mayor on a tear about some other incident.Esp.where the arrested person was innocent.A person can be accused of any manner of evil by anyone for any number of reasons but when you are treated with hostility,loss of assets and/or are being tormented or intimidated by authorities as punishment "for anything"on suspicion only this constitutes mental and physical torture .They also love to put you in confined spaces with no air.The use of an electronic device to induce near psychosis that utilizes pressure on the brain is torture.When the food is tainted or bad,this is vailed torture.When being under this strain,the central desk attendant can use psychological torture and ask you why you haven't committed suicide all because they are told to do so or on whim?Kids in jail for pot possession banging their head against a metal door damaging their cerebral cortex?Black suited men coming around at night to keep you awake?This is unforgiveable.The officers who were Hitler's most educated also were the most sadistic and cruel.That was pronounced on a religious program this morning on TBS.Some even with PHD's.So,when I heard of the CIA or the Bush Administration getting a pass on the torture methods at the secret prisons in Texas and Guantanamo,I was appalled.What?Never,ever torture.The construction of many County jails are medievel.They need torn down for the sake of the innocent and mentally ill...Treatment and environment are what caused most persons in jail to get there in the first place.Better treatment not abuse by guards and the system is what is badly needed in corrections to rehabilitate these offenders...Not more abuse.It is counter-productive.LDG-1 ps:One positive note.Jesus was the most tortured of all the saints and he is the ultimate judge.If you torture beware.No one gets through to the Father in Heaven but through him.And if you don't think that is consequential for torturers look at what the Earth and its dictators have to offer?

[TheMasses01]

for they now have no legal protection against torture.
Posted by caliguy55
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Throughout history in war; our enemies have broken any "legal protections" our soldiers have had.

[caliguy55]

One of the most dangerous factors of the torture practiced by the Bush Administration on detainees is that our enemies now have free reign to utilize those tactics on our captured soldiers to allegedly gain information. And, if such people are caught at some later point in time, all they have to do is wave the memos in the face of the tribunal before which they're brought for trial, and argue that we've already concluded that the very same conduct was acceptable and legal. I feel sorry for our poor men and women in uniform, who may be captured by the enemy in the future, for they now have no legal protection against torture.

[starleo146]

What about the Enlisted Men and Women who were tried in court for following out their orders on this same issue in Iraq?

Either let them out of Jail or put these criminals in Jail!
Posted by didserve at 8:04 AM : Apr 17, 2009

Boy are you right there can you believe what they did to these people and the ones that gave the order Rumsfeld and there officer in charge come out squeaky clean. This is a joke if the Bush administration gets off why are these guys any different than the CIA they followed orders never understood this at all

[starleo146]

Mr.Obama says about the economy we have to fix it so it never will happen again.Well I feel the next Bush like president that takes office will say oh He@ll they will not do anything lets just do what we want . This is why Bush and Cheney and Gonzales and Abbington should all be made to pay for all the bad deeds done in the last 8 yrs.These guys were all the planners and executioners of this administration past and before we can move forward they have to be held accountable for it .
Posted by starleo146 at 8:26 AM : Apr 17, 2009
+ report abuse

How could I forget Karl Rove and Harriet Meirs

[starleo146]

Mr.Obama says about the economy we have to fix it so it never will happen again.Well I feel the next Bush like president that takes office will say oh He@ll they will not do anything lets just do what we want . This is why Bush and Cheney and Gonzales and Abbington should all be made to pay for all the bad deeds done in the last 8 yrs.These guys were all the planners and executioners of this administration past and before we can move forward they have to be held accountable for it .

[mjlewis6]

Well, there goes our credibility with our allies and the prosecution of the war on moral grounds for the killing of innocents in 9/11/2001 and in the bombing of our embassies in East Africa in 2000. Granted there are worse......Darfur, ethnic cleansing in the Balkans...Campuchea's Red Shirts....but like the Roman Catholic Church giving up its own priests....the Obama Administration's immunity of the previous Bush Administration's violations of human rights and criminal activity in protection of the homeland....is a REAL STRETCH.

Change...we can do it...has become.... "Torture was OK....NO ACCOUNTABILITY"

[n8yvn29]

The Bush Crime Family are not off the hook yet: SPANISH PROSECUTORS ALSO RECOMMENDED NOT PROSECUTING THE MURDERER AND CRIMINAL PINOCHET, BUT THANK GOD, THE SPANISH WENT AHEAD AND INDICTED HIM ANYWAY - LET'S PRAY THEY DO THE SAME WITH THE BUSH CRIME FAMILY!

[chenz66]

"Quotation marks or inverted commas (informally referred to as quotes[1] and speech marks) are punctuation marks used in pairs to set off speech, a quotation, a phrase or a word. The pair consists of an opening quotation mark and a closing quotation mark, which may or may not be the same character."
Posted by abbe91 at 6:59 AM : Apr 17, 2009

That's very good. You get an A+ for cutting and pasting from the net. A regular Road Scholar, your parents must be proud. I'm done with you. LOL

[didserve]

What about the Enlisted Men and Women who were tried in court for following out their orders on this same issue in Iraq?

Either let them out of Jail or put these criminals in Jail!

[summarex]

So much for putting these animals on trial. Obama has broken yet another campaign promise. Funny thing is there seems to be as much dissapointment in the left with him as there is in the right.

This aint that unusual. It's the common path taken by community activists turned national leaders. Like Evo morales of Bolivia Obama has gotten to the presidency and does not seem to know how to transfoirm the organizational and ideological energy into real world results.

I still like the guy and I want to see him do well. But at this point it doesn't look like he will.

[trillion1]

When people who have used torture say it doesn't work you would think some morons would get a clue.

[chenz66]

The problem many of those tortured were not guilty and as someone who knew people who died in 9/11 I don't agree with torturing anyone, it got them nowhere closer to getting the ones responsible for 9/11
Posted by talaan77 at 7:00 AM : Apr 17, 2009

Then you are a better person than I am. I am still VERY bitter over the loss of friends.
True we have not captured the masterminds of 9/11 but we will never know the extent of information obtained via the interrogation tactics and what that information prevented.