Candidate Obama ran, in part, on overturning the Bush Administration policies which were perceived as being in contravention of the US Bill of Rights and human rights as they are understood on the international legal plane. President Obama began delivering on that promise by addressing one of the most poignant issues of the US policy known as the War on Terror, US government-sanctioned torture. To this effect President Obama ensured the highly controversial release of documents collectively known as “torture memos” but stopped short of ordering investigations into the conceptualization and implementation of the torture policy which could have led to subsequent prosecutions. The Obama Administration explained this approach by issuing the following statement: “This is not a time for retribution. It is a time for reflection. It is not a time to use our energy and our time in looking back and in a sense of anger and retribution”. This approach was reportedly adopted from a Department of Justice (DoJ) memo which urged the Administration not to call for the prosecution of DoJ lawyers who had written legal briefs justifying the use of torture at the behest of the Bush Administration. The only punishment potentially faced by the three architects of the “torture memos” – John Yoo, Jay Bybee and Steven Bradbury – is an internal reprimand (by state bar associations (which was later discarded as a punishment option altogether) with the harshest sanction recommended being disbarment)) which might be a result of a report (it is important to note that the report in question was commissioned by the Bush Administration, not the Obama one) conducted by the DoJ’s Office of Professional Responsibility which has found the architects of the “torture memos” of “poor judgment and failure to provide reasonable legal advice”, not of “conspiracy to violate US and international laws against torture”. John Yoo and Steven Bradbury worked for Jay Bybee who then was head of the DoJ’s Office of Legal Counsel; Jay Bybee reported directly to US Attorney General Alberto Gonzales who served in his other capacity as Counsel to the President. Obama assured the above that no prosecutions based on the content of the “torture memos” would be conducted, but only after he first assured the functionaries of the agency which requested the production of the “torture memos” by the Office of Legal Counsel in the first place by making an appropriate request to the President and then implemented the “torture memos” once they were issued and passed on to this agency through the John Yoo + Steven Bradbury – to – Jay Bybee – to – Alberto Gonzales – to – the President – to – the agency chain of custody. This agency was the CIA and Obama was quick to assure it that none of its staff would be prosecuted (he then however retracted his statement, in part, stating that it was not the President’s job to prosecute crimes but that of the President’s Attorney General Eric Holder to whom he, Obama, would defer on all matters relevant to prosecution; this retraction notwithstanding, a clear message had already been sent by the Obama Administration to everyone – no prosecution would be held). Obama further stated that no prosecution of the rank-and-file CIA and otherwise functionaries would be initiated either as, in his opinion, these persons deserved immunity from prosecution for having been “misled” by the DoJ. As of today, the Obama Administration has not prosecuted – or reprimanded in any way – anyone implicated in the “torture memos” scandal (Spain and Germany were the only countries which initiated the prosecution of the group known as "Bush’s Six"). It is particularly instructive to see this inaction of the Obama Administration against the backdrop of response to the “torture memos” from the US legal academia: Dean of Yale Law School and former Assistant Secretary for Human Rights Harold Koh called it “perhaps the most clearly erroneous legal opinion I have ever read”; former Nixon Administration counsel John Dean refers to the memos as tantamount to evidence of a war crime.
After having disregarded these esteemed opinions Obama heads over to Oslo to accept a Nobel Peace Prize (which the Obama Administration has been hard at work trying to spin how an Illinois senator with no record of international work deserved since then) where he delivers an acceptance speech outlining his administration’s human rights policy and stating that “in some countries, the failure to uphold human rights is excused by the false suggestion that these are Western principles, foreign to local cultures or stages of a nation’s development […] I reject this choice”. One could not help but wonder what the Obama Administration’s excuse for not upholding international human rights in the case of Gonzales’ team might be other than political expediency.
In the same breath the Obama Administration ratchets up its financial contribution to the ECCC which was established to prosecute some of the exact same crimes which were committed by US government functionaries of the Bush Administration and which the Obama Administration now refuses to prosecute. Let’s unpack this comparison. A group of scantily (Pol Pot was a community college dropout) educated Maoists bring about a regime which deals with political opponents through intimidation, torture, and execution. If zeroed in on Democratic Kampuchea (Cambodia’s official name under the Khmer Rouge regime)’s methods of torture recently examined in Case 001 by the ECCC one will find that waterboarding was a torture technique widely used in Democratic Kampuchea. Democratic Kampuchea had no lawyers or an office of legal counsel within its structure the creation of which was precluded by the regime’s determination to “smash all vestiges of the oppressive capitalist regimes of the past”; international law, according to Democratic Kampuchea government, was part of those “capitalist regimes”. In the US, we are looking at a very different group of individuals advising on policy: they all come from the nation’s top law schools (Yoo – Harvard; Gonzales – Harvard; Bybee – Brigham Young University; Bradbury – University of Michigan) who produced policy advice (“the torture memos”) which sounded as if they had never heard of international law or as if they had believed that it was elastic to a point that it could be stretched to justify virtually any policy decision. Let us not make any mistake, the CIA – down to its lowest level agents – did not believe waterboarding was compliant with international law; the CIA, however, had a clear interrogation strategy which needed legal validation for which they went – through the President – to the DoJ. The yes-men of the DoJ – Gonzales, Yoo, Bybee, and Bradbury – did exactly what they were expected to do: they begged, borrowed, and stole, in a manner of speaking, to find ways of forcing international law onto the interrogation policy blueprint designed at the CIA. They knew exactly what they were doing but they also knew that the day of reckoning would never come for them as it never came for their numerous predecessors. The rank-and-file CIA and army interrogators, albeit not as well educated as Gonzales’ team, were also fully aware that waterboarding could not possibly be within the meaning of permissible interrogation methods under international or US laws. The Obama Administration curiously chose not to prosecute them but to up their contribution to prosecute persons for the same (as well as other) crime in a small developing country halfway around the world which is presently prosecuting members of a long defunct and intensely discredited regime. The Obama Administration therefore attempts to lead us to believe that on some level the US taxpayer’s money is better spent prosecuting retired agrarian communists than spent to prosecute Gonzales’ team at home. A simple analysis will demonstrate that the Obama Administration’s prosecution of Gonzales’ team would be a much more viable tool of US policy than supporting the prosecution of Pol Pot’s team: (1) it would show that by promoting the rule of law in other countries the US means what it says, i.e. everyone is equal before the law and everyone is equally accountable under the law; (2) it would combat impunity at home (the ECCC adds nothing to combating impunity in Cambodia as Cambodians understand that the Khmer Rouge is “a fallen elephant” that anyone can strike a blow at now that it is down and its biggest backer, China, won’t come to their rescue); (3) the trials would be cheaper (it might be surprising by it is correct, justice is cheaper in the US than it is at the international level: the ECCC promised us to deliver justice for $56 million four years ago; their current annual budget is creeping up to that amount and the promise was broken a very long time ago; after 4 years of operation the ECCC has managed to hold one trial for which there has yet to be a judicial decision); (4) American money would be spent in America to pay Americans and to deliver justice for Americans (justice delivered in Cambodia has little or nothing to do with the US). The US supporting the prosecution of criminal acts and human rights violations far from our borders while simply forgiving – or not going far past “hot talk” in any event -- them at home conjures up one word in the mind of a conscientious policy thinker – travesty.
Policy on the rule of law and human rights does not have to be perfect but it has to make sense beyond the political expediency of the day, Mr. President.