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Sunday, April 19, 2009

Rule of Law...Or At Least Convenient Laws

Rule of Law...Or At Least Convenient Laws
Image © Austin Cline
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During the Nuremberg Trials, the Allied Powers established that "I was just following orders" is not a legitimate defense for heinous and barbarous acts. It doesn't matter how legitimate the authorities above you might otherwise be, they don't have the authority to order to you break the law. It also doesn't matter if they tell you that their orders are legal. If you choose to follow such orders, then you are completely responsible for your own actions — as a morally autonomous and responsible adult, no other conclusion is legally possible. You are not protected by any laws or any international treaties.

You may, however, be protected by the American President. C.I.A. employees and independent contractors who broke the law by torturing prisoners under orders from the Bush administration could be expected to be protected by Bush, but now it appears that they will be protected by Barack Obama as well. So, first Obama defended the ability of the government to engage in illegal wiretapping without even notifying the public about it, never mind be punished for it, and now he is defending the ability of government employees to torture suspects so long as they are instructed to do so — and told that it's all legal and approved — by some credible legal authority.

Obama is leaving open possibility of prosecuting higher-ranking government officials who ordered the illegal actions, but even that can't really be counted on because the Obama administration spends a lot more time insisting that we need to "move on" and "look to the future" than he does about establishing justice, preserving the rule of law, and restoring America's moral and legal standing in the world. So long as the former remains more of a priority than the latter, then we should assume that little will be done to bring Bush administration officials to justice because that's just as much "looking backward" as bringing the actual torturers to justice. Do note that he has refused thus far to appoint any sort of independent prosecutor to even look into the possibility that laws were broken.

Do we really need to recount all the reasons why "I was just following orders" can't be accepted as a legitimate reason for allowing torturers to go free? We shouldn't, but given the persistent moral and legal failings of the Obama administration lately, perhaps it really is necessary after all. That may be one of the most tragic aspects of this: that people who campaigned on a platform of the rule of law and who were elected in part on the belief that they would restore a measure of justice to government actions, have to be reminded about the fundamentals of these principles.

The most obvious problem in all this is the fact that Barack Obama is using as an excuse the idea that his administration needs to "assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution." Exactly the opposite needs to be the case: people who act on behalf of the government must be assured that unless they exercise some basic moral and legal common sense reasoning, then they will be held accountable for their actions and prosecuted for violating any laws — most especially obvious laws which any half-conscious adult should have noticed they were breaking.

Government employees and independent contractors are not automatons whom we simply wind up and aim in some desired direction; they are morally responsible adults who must be held morally and legally responsible for actions they choose to take. They have a choice to not take action they suspect may be legally questionable or which appear to be morally dubious. Granted, there are grey areas where it's not always obvious what is legal and what is illegal. I'd like to think that those engaged in actively administering criminal treatments like waterboarding would have noticed that they were breaking the law, but I could accept that not every situation was quite so clear. Is that a reason to withhold prosecution? Absolutely not.

If complete ignorance of the law is not a valid defense for breaking the law without consequences, then difficulty in discerning the boundaries of the law won't be either. Even the most junior members of the military are legally and morally expected to uphold these standards under far more difficult and stressful conditions. Does anyone really want to argue that soldiers should be immune from prosecution for war crimes if they are told that the Justice Department decided it was legal to summarily execute suspected Muslim terrorists? So I don't think it's not asking too much to have these expectations of experienced civilians who have the luxury of time and space to consider their actions.

Even if we ignore all of this, though, then the most we have is a possible defense at a trial — in other words, we have a defense against particular charges, not a defense for preventing prosecutions from occurring. Obama's argument that there shouldn't even be an investigation and prosecution of those he almost admits committed war crimes is as disturbing as Bush's argument that we should just take his word that only "evildoers" were being detained and therefore they do not deserve habeas rights.

The whole point of independent courts is to make a determination of facts and evaluate arguments on both sides of a legal case. It's within the authority of a prosecutor's office to decide that some cases aren't worth pursuing or that there isn't enough evidence to issue charges, but that’s not what's happening here. Instead, we have the prosecutor's office declaring that heinous crimes were committed, but the criminals will be preemptively excused because they were committed with the permission of people in that same office. Even if it were the case that "I was just following orders" were a legitimate defense for war crimes, that's a determination that has to be made by a court of law, not by prosecutors and administration officials who may have a vested interest in such cases being kept out of the courts.

Moreover, the United States of America has signed treaties which obligate it to hold exactly such people accountable for their actions and to prosecute them for their crimes. Barack Obama and Attorney General Eric Holder have, in effect, tossed aside some of America's most fundamental treaty obligations — they are saying that they will simply ignore any treaty which they deem too inconvenient for current political circumstances. Eric Holder is the first attorney general to ever declare that American war criminals will be immune from prosecution. Not only will this fail to restore America's standing abroad, but it's far too similar the same attitude which George W. Bush took when he was in office.

Now all government employees and agents know that so long as they can get someone higher than them to approve of an action, they can get away with murder. There is no reason to assume that this "cover" will only apply to people who committed crimes under the orders of Bush administration officials. Going forward, agents of our government are being given the message that future illegal orders will not result in prosecution, at least if someone tells them that the Justice Department approves. Yes, some of the most fundamental moral and legal documents of the latter half of the twentieth century state otherwise, but they are no longer being honored by the American president.

What kind of society would we have if those pulling the trigger are granted blanket immunity so long as they can wave around a legal opinion written by a lawyer who was only chosen for the job because they could be counted on to write whatever the president wanted? If such a system were established, who exactly is committing a crime? A president can pick anyone they want to give them legal advice. If it's tough to prosecute people for relying on a valid legal opinion, it's tougher to prosecute those writing that opinion, even if it is arguing that torture or murder is legal. Once that opinion is issued, all those who pass on orders based on the opinion get immunity. This is the perfect set-up for massive war crimes that can never be prosecuted — especially if no one ever wants to expose the system because they might be able to take advantage of it themselves.

The Obama administration is explicitly adopting some of the Bush administration's worst characteristics — and for no good reason. They aren't even using a bad reason that can seem superficially good. We need a president who upholds the law all the time, not just when it's politically convenient. We need a president who defends justice all the time, not merely when it's politically helpful. We cannot long survive without a president who puts the rule of law first, but we won't get one until we demand it from our elected leaders rather than trying to make excuses for why it's OK for this president at this time to adopt the sorts of attitudes and practices we condemned in the previous president. Obama must, if anything, be held to a higher standard than Bush, not a lower one.


  1. Cline, you hopeless mope, people WERE punished for torture. I mean those bad redneck apples like Lynndie England and Charles Graner who had the poor taste capture themselves on film. Freakin' amateurs... Well-trained CIA agents had the sense to erase films of THEIR evidence! Leave enhanced torturgation to the experts, hillbillies.

    Even if "I was just following orders" is not a good excuse, then who cares if those little orderly followers take the fall? As a loyal member of the Glorious Christian Conservative Revolution, I am chuffed that Commander-in-Chief Obama is refusing to lay a hand on the brave men who GAVE the orders! You don't bring that up in your latest traitorous mewlings, do ya, bright boy? Order givers vs. followers... Even with a tin heart and knees that have had triple bypasses, realPresident Cheney is kilometres ahead of ya.

  2. Whiskey Tango Foxtrot?

  3. General Sir!

    [Cannot come up with snark where this issue is concerned]

    If we do not have the courage to commit ourselves to the principles against torture that we have long espoused, then we have no right to assert we have a place in global leadership. These actions that have been done under the guise of ‘keeping America safe’ has long been identified as torture. Torture has long been an international crime.

    It’s clear that the memos were written for the sole purpose of providing some kind of cover for the torturers, and those who ordered the torture. But the mere existence of twisted rationale on official letterhead does not change international law.

    Everyone involved in this heinous activity, from the actual torturers to those who conspired to commit, ordered, and provided the means for the crimes need to be tried in an international court of law with charges of War Crimes and Crimes Against Humanity.

    Perhaps by declaring that the United States will not charge those who were ordered to torture, a signal has been sent to our international community to start officially putting the case together.

    While a group of prosecutors in Spain have indicated that they do not recommend filing charges, Spanish law does not give prosecutors the authority to file or defer charges. This is up to judges in Spain, not prosecutors. The Spanish judge involved in this case is the very same who filed charges against Pinochet, also against recommendations from prosecutors. The torture case against the US for torturing Spanish citizens is not dead. Yet.

    It stands to reason that an American court would not be impartial, nor would American politicians refrain from conflating the charges with partisan politics. A globally respected court would be able to fairly examine evidence and allow the Defense to make their case, however thin it may be, without bending over backwards to prove its judicial and apolitical role.

    If any case were completely appropriate for The Hague, this one is it. Regardless of what Obama says about it right now, this is not over. Not by a longshot.

  4. Awesome post, dude!

  5. Anonymous5:29 PM


    I sure hope The President is trying to establish a sense of the public. I am reporting this to my TV addict right wing friends. Those who have been silent for the past 7 years are suddenly springing to paranoid life. "You mean Bush was doing all that?" "Hell yeah! Where ya been?"We may have back-handed allies in the righties on this. I continue to hope as The General continues to soldier us on.

    (Notice I am not trying to be funny this time.)

  6. Anonymous11:42 PM

    I suspect that Obama's life has been threatened if he pursues prosecuting torturers. He feels he is more valuable to us alive than dead. Maybe he'll do it later, after more has been done. Is that too Pollyanna for you?

  7. Way too Pollyanna (off the chart), but thanks anyway.

  8. Maybe he'll do it later, after more has been done.That sounds like a Zen koan, if you look at it right -- through a haze of sweet-smelling smoke, perhaps...

    But seriously, it fits in with the "Obama is a master of 11th-dimensional political chess." Perhaps he is! Perhaps Obama is setting into place motions that will not be apparent immediately. Perhaps not even while he is still in office, one term though that may be. Perhaps the true import of Obama's genius will not even be apparent for 100 years, long after almost every human now living has finally died!!! (The way the environment is headed, the time period for that last condition might be more like 20 years.) Yes, Obama might be a stone-cold slow-motion genius.

    Or he could be a kinder, gentler puppet of the master class.

    We won't know until the history books have been written. And as a grating man once said, the history books won't be written until all of us are dead. Which means we'll never know, since we won't be alive to read them. Bugger all!


We'll try dumping haloscan and see how it works.