The Obama administration continues its measured approach to rectifying the harms caused by Bush administration torture policy. Late last week the administration asked the Supreme Court to hear its appeal of a Second Circuit order requiring the release of photos depicting the abuse and torture of prisoners held in U.S. custody overseas. Originally the Obama administration indicated it would not appeal the order, but then changed course shortly before the disclosure deadline.
On the heels of the requested review comes news that Attorney General Holder is close to naming a special prosecutor to investigate CIA treatment of detainees. According to sources for the Los Angeles Times, Attorney General Holder is reluctantly coming to terms with the fact that a criminal investigation is in order. The apparent change of heart came once he read a still-classified 2004 report by the CIA’s inspector general detailing extensive problems and abuses in the agency’s interrogation program, most notably those areas involving waterboarding.
What to make of these apparent mixed signals? On the one hand, the request for review of the Second Circuit order should come as no surprise, even considering earlier Department of Justice statements suggesting they would abide by the order. More likely than not the Department of Justice has measured its likelihood of success on any appeal and has set expectations low. The Second Circuit order left very little, if any, wiggle room on appeal. But, by requesting the review, even if the request is denied, the administration has bought some time.
And time might just be what Attorney General Holder is after if the Los Angeles Times report is correct. Both President Obama and Attorney General Holder are on record as having grave concerns that a special investigator would be perceived as political payback. Neither men want to set the stage for future investigations of outgoing administrations, but both are in the sticky political position of stating unequivocally that waterboarding amounts to torture. With the existence of definitive proof that the U.S. waterboarded prisoners, and with evidence mounting that the order to waterboard came directly from the Executive branch–most likely straight from Vice President Dick Cheney– the Obama administration may not have any choice but to launch such an investigation. If an appeal of the Second Circuit order can keep photographic evidence of detainee abuse at bay, even temporarily, Attorney General Holder may have enough time to shore up the scope of an investigation without compromising any possible future criminal charges.
If the months since January have showed us anything, it is that every move the Obama administration makes comes after careful legal and political analysis, and the push towards a special prosecutor to investigate U.S. war crimes is no exception. Let’s hope that reasoned legal analysis, rather than political pressure, continues to prevail and an investigation commences. In the meantime we can take this recent request for review with a grain of salt and bide our time so that, once and for all, we can account for the crimes of our past.
To push for a special prosecutor to examine this issue, see this Care2 petition.
photo courtesy of Saharauick via Flickr