The Case for 'Looking Forward' to the Impeachment of Jay S. Bybee...
Guest Blogged by Ernest A. Canning
At the same time he took a step forward, releasing the four Justice Department torture memos he described as a "dark and painful chapter in our history," President Barack Obama assured CIA employees, who tortured under cover of these quasi-legal sophistries, they would not be prosecuted. The President said this was "a time for reflection, not retribution...nothing will be gained by spending our time and energy laying blame for the past." White House Press Secretary Robert Gibb explained that the President insisted on "looking forward." U.S. Attorney General Eric Holder not only seconded the President's promise not to prosecute, but vowed to provide legal counsel to defend these war criminals and to pay the damages awarded to their victims.
Great Britain's Times Online, quoting an unnamed former official, suggested there may be cases where the CIA exceeded the DOJ guidelines; perhaps even killed detainees. The President's hint at immunity does not extend to officials who exceeded the guidelines. Although the President, in his remarks, made no mention of those who ordered torture, White House Chief of Staff Rahm Emanuel told ABC's George Stephanopoulos last Sunday that the President did not believe "those who devised the policy" should "be prosecuted."
The President's promise not to prosecute generated a firestorm of protest from the legal community. Law Professor Jonathan Turley blasted the effort to equate law enforcement with "retribution."
He is trying to lay the ground work for principle when he is doing an unprincipled thing....President Obama himself has said that waterboarding is torture, and torture itself violates four treaties and is considered a war crime. So the refusal to allow it to be investigated is to obstruct a war crimes investigation.…There aren't any convenient or inconvenient times to investigate war crimes. You don't have a choice....You have an obligation to do it, and what I think the President is desperately trying to do is to sell this idea that somehow it's a principled thing not to investigate war crimes because its going to be painful…It will be politically unpopular because an investigation will go directly to the doorstep of President Bush…and there's not going to be a lot of defenses that can be raised for ordering a torture program.
Rep. Jan Schakowsky (D-IL) who serves on a House Intelligence Sub-Committee, added fuel to the firestorm by contrasting the President's advancement of the "I was only following orders" defense to the principles our nation applied at Nuremberg after WWII. Manfred Nowak, the UN special rapporteur on torture, said the President's refusal to prosecute violates the UN Convention Against Torture.
Before discussing the refreshing news that we have a President who, in the face of such a powerful critique, is not afraid to reverse course, let's consider what it means to "look forward" given that the principle author of these torture memos, Judge Jay S. Bybee, now sits on the 9th Circuit Court of Appeal, passing judgments on others. Absent incapacity or impeachment, there he will stay for the rest of his life...
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