Evolving Thoughts

Obama’s decision not to prosecute CIA agents who employed torture and illegal rendition is a bad decision. It politicises legal responsibility and does nothing to reinforce the rule of law. Perhaps every single agent who followed orders will be exonerated by these cases, but they ought to face prosecution for breaking the law, even under orders. The Nuremburg defence didn’t play in 1946, and it shouldn’t now.

There’s a simple principle: if someone breaks the law, they should be tested in a court of law as to whether they had mitigating circumstances. If they didn’t, then they should be convicted and punished. This is not so much for what it achieves in these cases, as what effect it will have on future behaviour by CIA agents and their bosses. Not punishing illegal activities now means they will continue to break laws when it is politically acceptable, secure in the knowledge they will be pardoned.

Likewise, both Bush and Cheney and their staff should be prosecuted for breaching laws, the constitution, and international treaties. There’s no principled reason for not doing so, only politics. And I thought we were about changing the old ways in Washington… sure.

Contra Greg Laden.

Comments

  1. #1 Badger3k
    April 18, 2009

    HAving read both, I agree with you on this. They need to have their day in court, and if they get exonerated or punished, it will be a reminder that no one is above the law. And that includes, as you say, Executive Branch personnel who want to be royalty. But Obama is just taking ex-President Bush further. We’ve allowed the door for the return of royalty and presidents who are above the law, and expecting a politician to give up power is like expecting a dog not to lick himself. We can only keep the politician’s feet to the fire and try to restore the Constitution to our country.

  2. #2 Left_Wing_Fox
    April 18, 2009

    I agree with your assessment and would suggest there is no reason for a CIA agent to work with the government in prosecuting higher-ups unless his neck is on the line legally. Flip the whole sadistic batch of them like a mob family through the RICO act.

    Again, I remain pessimistic that anyone will be held to account for torture, war crimes, fraud, or economic malfeasance committed in the last 8 years.

  3. #3 anonymous
    April 20, 2009

    Suppose that I am convinced that if I were to apply illegal means, I could achieve a good end. Suppose further that I want to do this, despite the means being illegal. Should I be deterred from doing this by the knowledge that I will be prosecuted for doing it? Is it ethical for me to put my own well-being above what should be done?

    If I should be willing to torture an innocent person – let’s say a family member of the person with the information – should I not also be willing to subject myself to punishment in order to get the information?

    Should not the government be willing to punish the torturer – and his commanders, including the government itself – if that is necessary to get the information?

    What is the rationale for protecting torturers and their commanders – and only those people – from the consequences of torture?

  4. #4 Greg Laden
    April 20, 2009

    I might agree with you as well, for several reasons. First, never argue with a big white gorilla. Second, what you say here is absolutely correct and can’t really be argued against.

    However, there is also the reality side of things. It may be that this (what Obama has done) is the best way to ultimately clean up our acts and get key people prosecuted for war crimes.

    Your arguement that this is a Nuremberg defense is inappropriate does not come up to your usual great (ape) standards: This act is not a defense, but rather, a prosecution side strategy. Totally different.

    I invite you to consider the following things furhter: 1) The exact wording of Obama’s decision, and 2) The exact strategy at Nuremberg with respect to operatives. I’m pretty sure there were a couple of hundred thousand Nazis at least, but there were not a couple of hundred thousand Nazis sent to prison. I’m thinking the Nuremberg comparison is a Canard. And I know how gorillas feel about ducks.

    Regarding: There’s a simple principle: if someone breaks the law, they should be tested in a court of law as to whether they had mitigating circumstances. If they didn’t, then they should be convicted and punished.

    Except that in actual fact, this simple principle is almost never actually applied. Sounds good, doesn’t happen.

    I will be really pissed at Obama if this goes the wrong way. So far, though, the counter arguments I’m seeing are mainly underpowered and unrealistic.

    Also, I find it interesting that people are missing one of the key outcomes of Obama’s move: He has, clumsily, I admit, carried out a single sweeping act of “Truth and reconciliation” … not the way it is usually done, but it is indeed some form of this, with the virtual simultaneous release of the memos and the statement about shields.

    Bush and Cheney and their staff should be prosecuted for breaching laws, the constitution, and international treaties. There’s no principled reason for not doing so, only politics.

    This has not been obviated by anything Obama has done, as I under stand it. They should absolutely be prosecuted.

  5. #5 Soren
    April 23, 2009

    nice try with “the prosecution side”

    but it doesn’t hold water. The convention against torture states that all cases of torture must be tried by the ratifying nations.

    There is no doubt these criminals used torture, and thus they must be tried.

    What the result of the trials will be is up to the justice system, and not up to the president.

    If he should use his authority to pardon the criminals afterwards, this might or might not be legal in regards to the convention against torture, I don’t know. But a premptive pardon of criminals is not an option.

    On another note – the qauint fashion where alected officials get to pardon their buddies seems strange, and it runs counter to the three branches of power, that is usually applied. Is this something people is actively trying to change, or do everyone just accept that enough money or influence can make it so the law can’t touch you?

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