By Eugene Robinson
Tuesday, August 25, 2009
History's demands can seem inconvenient, unfair or unreasonable. But they can't be ignored. The Obama administration has a legal and moral duty to determine whether crimes were committed in the Bush-era detention and interrogation of "war on terror" prisoners -- and, if so, to prosecute those responsible.
President Obama has made clear that "he thinks that we should be looking forward, not backward," as spokesman Bill Burton said Monday. Obama has taken admirable steps toward assuring the nation and the world that the worst abuses -- waterboarding, indefinite detention, Abu Ghraib -- will not happen again.
Obama's latest move, lodging responsibility for interrogating "high-value" suspects in a new unit that will report to the White House, seeks to offer further guarantees against torture and abuse. I'm not quite sure what it accomplishes -- it takes control of these interrogations away from the CIA and ensures that they will be conducted under the strict rules of the Army Field Manual, but it seems to me that the president should be able to simply order the CIA to follow whatever rules he specifies. Maybe the new High-Value Detainee Interrogation Group will ensure additional safeguards and greater accountability, but at first glance its likely impact seems more bureaucratic than operational.
More to the point is a report that Attorney General Eric Holder has decided to reopen nearly a dozen cases of alleged prisoner abuse by CIA employees and contractors with an eye toward possible prosecutions. Such action would reverse the decision by the Justice Department under the Bush administration to drop these cases. According to The Post, Holder has decided on career federal prosecutor John Durham to lead the inquiry.
This would put the attorney general in a tough position. That's okay; Holder is a tough guy, and when he took the job he knew it wouldn't be a walk in the park. But Obama has decided not only to take a hands-off position on the matter, which is a proper acknowledgement of prosecutorial independence, but to reinforce his "looking forward" message at every opportunity. Without taking a position on whether there should be prosecutions, the president certainly seems to be telegraphing one.
Obama has consistently opposed even a comprehensive investigation into human rights abuses and possible crimes committed by the Bush administration. His reluctance is understandable -- but it's wrong.
Given Obama's ambitious domestic agenda, he could hardly be eager to have to spend time and political capital in pursuing transgressions that took place years ago on another administration's watch. Inconveniently, however, torture and cruel treatment are clearly against the law. Holder is said to have been appalled upon reading the classified version of a voluminous report on CIA abuses. If there is credible evidence that crimes were indeed committed, I don't see how the nation's chief law enforcement officer -- or its commander in chief -- could just look the other way.
There are those who argue that such prosecutions would destroy the CIA's morale. But giving interrogators and jailers a "just following orders" free pass is unfair to those in the chain of command who knew these alleged practices were wrong and tried to prevent or halt them. Waterboarding, to cite perhaps the most flagrant abuse, has been prosecuted by the U.S. government as a war crime. This history cannot have been unknown to all CIA employees and contractors.
If Holder's reported decision to reopen the CIA cases does lead to prosecutions, there is one possible outcome that everyone should find unacceptable: that only the hands-on abusers are charged and tried. Proper investigations must work their way up the chain. In some instances, it may be a mid-level employee who overstepped clear boundaries and ordered subordinates to perform acts that might have taken place in a medieval dungeon. In other cases, illegal acts apparently were approved at the highest levels. Investigators need to be allowed to follow the evidence all the way to the top -- into the White House, if that is where the trail leads.
I'm under no illusion that George W. Bush or Dick Cheney is actually going to be prosecuted by the Justice Department. But I want to know -- and I believe the nation needs to know -- the full, unvarnished truth of what they and others did in our name. It's probable that painful scrutiny and lasting disgrace will be the only sanctions that Bush and Cheney ever face. But history demands at least that much.