According the the AP, a group of prominent retired generals and admirals met with President-elect Obama’s transition team yesterday to demand that he act immediately to put an end to Bush’s torture policies. In the legal community, calls continued to mount for Bush torture team to be the subject of a criminal investigation and prosecution. And Bush’s attorney general continued to mutter lame excuses for his inaction, protesting that the Bush Administration introduced its policies of torture and official cruelty in good faith and with the best interests of the nation at heart.
One member of the retired military group, former Navy Judge Advocate General Admiral John Hutson, spoke of the Bush program:
“Fundamentally, those kinds of techniques are ineffective. If the goal is to gain actionable intelligence, and it is, and if that’s important, and it is, then we have to use the techniques that are most effective. Torture is the technique of choice of the lazy, stupid and pseudo-tough.”
At the same time, more voices were heard demanding that the new administration commence a criminal investigation and prosecution of the authors of the torture policies. Writing in the Chicago Sun Times, two prominent law of war experts, Professors Jordan Paust of the University of Houston and Tony D’Amato of Northwestern University, argue that the Obama administration has a duty to go after the Bush torture team for war crimes:
Under the U.S. Constitution, the president is expressly and unavoidably bound to faithfully execute the laws, and the Supreme Court has recognized in many cases since the founding of our government that such laws include U.S. treaty law and customary international law. In fact, every relevant federal judicial opinion over the last 200 years has affirmed that all persons within the executive branch are bound by the laws of war, a point famously recognized by President Lincoln’s attorney general in 1865. Moreover, Obama has assured the American people that he will work to restore the rule of law and integrity in our government, which have been among clear casualties during the Bush administration’s “war” on terror.
The 1949 Geneva Civilian Convention, which is considered treaty law of the United States, expressly and unavoidably requires that all parties search for perpetrators of grave breaches of the treaty and bring them “before its own courts” for “effective penal sanctions” or “if it prefers . . . hand such persons over for trial to another High Contracting Party.” The obligation is absolute. The United States must either initiate prosecution or extradite to another state.
Writing in the Progressive and the McClatchy newspapers, Michael Ratner comes to the same point:
One of Barack Obama’s first acts as president should be to instruct his attorney general to appoint an independent prosecutor to initiate a criminal investigation of former Bush Administration officials who gave the green light to torture.
A few months ago, [Attorney General-designate Eric] Holder was… explicit. “Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution,” he said. “We owe the American people a reckoning.” The day of reckoning is fast upon us.
If Obama and Holder want to adhere to our Constitution and uphold our highest values, they must pursue those in the Bush Administration who violated that Constitution, broke our laws, and tarnished our values.
In Washington, D.C., Attorney General Michael B. Mukasey responded to these demands by insisting that he saw no need for President Bush to issue blanket pardons to members of the torture team. The New York Times reports:
Mr. Mukasey told reporters that there was “absolutely no evidence” that anyone involved in developing the policies “did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.”
Isn’t it odd when the nation’s chief law enforcement officer appears before the camera sounding like a criminal defense counsel, mouthing highly improbable reasons why we should agree that his clients are innocent? But his remarks betray an understanding of the law regarding torture which few outside of those implicated in the torture program (a group that now includes Mukasey himself) share. He supposes that it is a defense for a criminally accused person to say he tortured in the interests of national security. But in fact torturers who have been prosecuted by the United States in the past have made just this sort of claim, and the courts have held, correctly, that the claim is unavailable.
Mukasey also espouses the idea that the secret legal opinions issued by his unconfirmed, illegal, holdover assistant attorney general at the Office of Legal Counsel (OLC) will offer a “golden shield” against criminal prosecution by serious law enforcement officers. He has refused to provide the Obama transition team with copies of the secret opinions, telling them this week that the torture opinions will not be available to the new administration until it actually assumes office on January 20. That fact is extremely telling, and is bound to fuel the already widespread view that the OLC opinion writers are just another cog in the whole torture enterprise. Will the secret OLC opinions provide a “golden shield” as Mukasey suggests? Professors D’Amato and Paust have just the right retort: those relying on the Bush Justice Department’s “golden shields” will soon discover that they have been crafted of fool’s gold.
Update: House Judiciary Responds to Mukasey
House Judiciary Chair John Conyers and Subcommittee Chair Jerry Nadler are calling Mukasey on his statements. They note that the public record is full of evidence showing that the Justice Department opinion writers were warned that they were attempting to legitimize criminal acts and that their opinions would not withstand public scrutiny. Nadler and Conyers note the statement by Deputy Attorney General Comey that the Department would be “ashamed” when the surveillance opinions were finally disclosed, and the fact that the nation’s senior-most military lawyers also warned that the conclusions offered in the torture memoranda were incorrect and not supported by proper legal reasoning.
The House Judiciary leaders also question why Mukasey is making these bald categorical and unsubstantiated statements when investigations are now pending with respect to the matters on which he is speaking. Mukasey is prejudging those matters and appears to be attempting to head-off a professional and complete investigation by prosecutors who answer to him.
Read the Judiciary Committee letter to Mukasey here.