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Restoring Credibility

Restoring Credibility

Various members of the Bush Administration have often been the subject of many calls for criminal prosecution for their flagrant abuses and violations of numerous American and international laws. Chief among these are the codes of conduct as proscribed by the Geneva Convention outlawing several forms of torture. Waterboarding, as you might remember, was a method of “interrogation” championed by Vice President Dick Cheney, both for its ability to elicit information, as he claimed, and for its legality under the circumstances of our current War on Terror.

In a recent interview with George Stephanopoulos of ABC News, President-elect Obama was asked if he would appoint a special prosecutor to investigate “the greatest crimes of the Bush Administration,” including the use of torture techniques for intelligence gathering.  Obama responded that while no one is above the law, he believes that “we need to look forward as opposed to looking backwards.”

Obama later responded to a follow-up question regarding the possibility of pursuing justice against any wrong-doers from the previous administration, “… my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past.”

I was listening to a political talk show the other day, and one of the commentators noted that while it is essential that the incoming Administration and Congress focus on the most pressing matters, namely the economy and Iraq, they are quite capable of managing their time to take on relatively less significant issues. This category would presumably include the pursuit of justice.

To be sure, the economy should be the first, second and third priorities of the Obama administration and Congress. The declining health of our jobs, our housing market and the global economy in general needs to be resurrected as soon as possible. However, we also cannot afford to ignore other matters that would still have a dramatic impact on our lives, including prosecuting those from the previous Administration who have broken the law.

Such a dedication to justice would serve the dual purpose of restoring the credibility and reputation of our government as well as providing a reminder and forewarning that America’s new administration values integrity and accountability. 

President-elect Obama wants to focus on moving forward, which is essential right now. A promise to defend and protect the U.S. Constitution, however, includes enforcement of any violations of the U.S. Constitution. While arguments have been made that harsh interrogation techniques may not technically violate the law, the case could be made that violating American principles (including the prohibition on cruel and unusual punishment) does not serve the interests of our legal system nor our international standing.

Even to its supporters, waterboarding may qualify as torture, which is why many enemy combatants are jailed in other countries for interrogation. It’s sort of like moving your money to off-shore banks; if it weren’t a crime to hide it from the IRS, you probably wouldn’t keep it in a foreign country. 

Furthermore, the U.S. has ratified the UN Convention Against Torture. The Constitution does not require that such international agreements are binding on U.S. courts, but they may be influential in relevant cases, so long as they do not conflict with the Constitution.

The Bush administration and its defenders have argued that the 8th Amendment, prohibiting cruel and unusual punishment, would only prohibit torture as a punishment when a guilty determination as been made, whereas the use of “unusual” techniques to elicit information takes place before any determination of guilt or innocence has been made.

This is like enforcing a restraining order without prosecuting the initial assault, but only if the victim is allowed to seek the order. It’s like having legislators vote on whether they should get raises or not. It is essentially giving the defendant the power to determine whether he or she will ever go to trial.

Under such an interpretation of the 8th Amendment, so long as they decide never to prosecute an enemy combatant, they would never be prohibited from using “cruel and unusual” techniques.

Faulty reasoning? Absolutely. Unconstitutional? Probably. Criminal? Only if we want our credibility restored.

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8 comments

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7:36AM PST on Feb 24, 2009

CAN'T WAIT TILL THE NOBAMA-BIN-LADENS ADMINISTRATION ARE ALL INVESTIGATED!! HOW SIMPLE THE MOST UNETHICAL, LYING BASTARDS IN ONE CITY!!

12:52PM PST on Jan 22, 2009

The rebublicans, or rather what is left of them, are holding up the senate confirmation of Eric Holder until he says that there will be no investigations or charges brought against the office of the President.Now I could have heard this wrong, but Holder's confirmation is being held up for a week.

8:07AM PST on Jan 21, 2009

I wish him success in office but anyone who thinks a change in presidency will suddenly make us popular is niave. The countries that hated us last week will still hate us next week. Its what they live for. They don't hate one man or one action, they hate the whole concept of freedom and independence.

5:15AM PST on Jan 21, 2009

The Constitution and other laws were broke and now its time to pay the piper.

12:42AM PST on Jan 21, 2009

We gave Obama the presidency. He in return wants to give us back our country. Hopefully he will succeed. Betty Pfeiffer

9:35PM PST on Jan 20, 2009

Obama's love of the constitution will propel him forward on this issue. He is just being "nice" when he says we need to move on and not look back. Haven't you noticed how nice he is to everybody, even people he doesn't agree with? He knows how to "walk softly and carry a big stick" - just give him time, how could you think that this issue would get away from him?

This is one of the qualities that he has - haven't you noticed how he was able to bring everybody together and get things going even before he was inaugurated? Now how did he do that? The answer is by listening to everyone and not letting anyone feel that their words were unimportant, couple that with his immense intellect and intelligence and moral integrity and what do you have? You have WOW, a great leader with a heart of gold.

4:22PM PST on Jan 20, 2009

It's all well and good that our new President wants to move forward, and I commend him for that. But in order to restore our nations credibility, we must first bring to trial and convict those guilty of 'high crimes and misdemeanors'. And that is a good share of the past administration. We cannot let the rest of the world think that we allow criminals to go free.
BTW, it's a good article you wrote.

2:01PM PST on Jan 20, 2009

Nice, clear concise reasoning...thanks for laying it out like that. One wonders though at much of the faulty reasoning we gave seen and hopr to clean up in coming days

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