The Unpunished Crime Might as Well be Legal

By Terry Canaan

January 14, 2009

I usually hate these “two headlines” things, where two sources report the same event and come up with entirely different takes. Usually, this means that, of the two, one of them is BS. But not always. Sometimes the event is difficult to assess and the headlines they write depend as much on what the writers had for breakfast that morning as anything else. If your inclined to see bad news, you’ll see bad news.

The event in question here is an appearance by Barack Obama on This Week with George Stephanopoulos Sunday. Raw Story reports “Obama not likely to prosecute torture.” Meanwhile, USA Today’s The Oval blog tells us “Obama: Time to look forward, but Bush aides aren’t above the law.”

Given the noncommittal nature of Obama’s statements to Stephanopoulos, it’s easy to see how this could happen. He really didn’t give any definitive answer. Maybe there will be prosecutions for torture, maybe not.

Asked by Stephanopoulos, “The most popular question on your own website is related to this. On change.gov it comes from Bob Fertik of New York City and he asks, ‘Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping?'” Obama answered:

We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to be looking at past practices and I don’t believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering.

If, like me, you think that the people responsible for torture must be prosecuted, this isn’t the best news you’ve gotten lately. In fact, throughout the interview, Obama keeps falling back on that line, “looking forward.” I know that’s supposed to sound optimistic and high-minded, but the phrase that keeps going through my head is “those who don’t learn history are doomed to repeat it.” Yes, I understand that the Obama administration won’t be about the Bush administration, but I also understand that the past actually does exist. Planning for the future is realistic, pretending the past never happened is not.

Stephanopoulos pressed the issue, asking, “So, no 9/11 commission with Independence subpoena power?”

“We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing,” Obama said. “That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward.”

I think that’s where the opinions split. It’s maddeningly noncommittal. He doesn’t rule it out, but he doesn’t make any promises either. Personally, I think the idea of a blue ribbon panel is the worst option. And I didn’t have to look far for someone to agree with me.

In an interview of former Nixon White House counsel John Dean — a serious Bush critic — MSNBC’s Keith Olberman brought up the idea, saying that these sort of commissions are “almost openly dedicated to not pointing fingers.”

“Don’t we have to point fingers?” he asked. “Is that not the way justice works?”

“[T]his is going to really reflect terribly on the entire country, not just on the Bush administration which has engaged in these activities, but it really will reflect on the Obama administration for its refusal to pursue them and prosecute them.” he answered. “I think there’s serious consequences if they refuse to point fingers.”

Those consequences could be in the form of another executive, somewhere in the future, deciding — once again — that torture is just fine. If no one is prosecuted this time around, we’ve essentially legalized it. Like the cowardly and useless Democratic leadership in congress who established the precedent that there’s no such thing as an impeachable offense, Obama would be setting the precedent that there’s nothing keeping an executive from ordering torture. If there’s no consequence — no punishment — for a crime, it’s virtually legal.

Pressed even further in the interview, Obama finally punted. “What I — I think my general view when it comes to my attorney general is he is the people’s lawyer,” he said. “Eric Holder’s been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he’s going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past.”

Passing the buck. Disappointing. It’s starting to look like Raw Story’s headline is the most accurate; Obama’s not likely to prosecute torture. If this is the case, when he said, “I don’t believe that anybody is above the law,” he wasn’t including the President of the United States. This would make the Bush administration will most definitely be above the law.

I guess once we stop fighting Bush, we start fighting Obama. That’s the nature of democracy — it never ends.

But, I’m still glad I’m not having this fight with McCain.

Terry Canaan

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