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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