WASHINGTON — In the dying days of George W. Bush’s wildly unpopular presidency, it seems almost fitting that the morbid issue of torture – and his support of the practice in the war against terror – has become a dominant one.
The ever-increasing chatter concerns what Bush used to call “the program,” a top-secret process of interrogation techniques that included waterboarding, extended periods of standing, hypothermia, prolonged sleep deprivation and the use of psychotropic drugs.
Obama and his freshly minted team of foreign policy and legal officials, facing pressure from congressional Democrats and human rights organizations, are grappling with calls to prosecute officials at the CIA and the Department of Justice who authorized torture.
“The only way to prevent this from happening again is to make sure that those who were responsible for the torture program pay the price for it,” Michael Ratner, a professor at Columbia Law School and president of the Center for Constitutional Rights, said recently.
“I don’t see how we regain our moral stature by allowing those who were intimately involved in the torture programs to simply walk off the stage and lead lives where they are not held accountable.”
Bush, in the meantime, is being pressured by those on the right to grant pre-emptive pardons to any senior staffers involved in the formation and implementation of “the program.”
“Bush should consider pardoning – and should at least be vociferously praising – everyone who served in good faith in the war on terror, but whose deeds may now be susceptible to demagogic or politically inspired prosecution by some seeking to score political points,” right-wing pundit Bill Kristol wrote recently in the New York Times.
“The CIA agents who waterboarded (9-11 mastermind) Khalid Sheikh Mohammed, and the NSA (National Security Agency) officials who listened in on phone calls from Pakistan, should not have to worry about legal bills or public defamation. In fact, Bush might want to give some of these public servants the Medal of Freedom … they deserve it.”
Eric Holder, Obama’s choice for attorney-general, has denounced torture.
In a speech to the American Constitution Society in June, Holder urged an end to the practice of transferring terrorism suspects to countries that practice torture. He said the United States should declare it will not subject prisoners to forced interrogations or degrading treatment.
He also called for an end to warrantless wiretapping, another hallmark of Bush’s post-911 policies.
Bush, said to be consumed with his legacy, could damage it even further by pardoning some of his staff members. Such pre-emptive pardons would also imply that his government’s post-911 activities were illegal when he has long insisted they were lawful.
Instead, the president appears to be gambling that Obama will give his team a pass. White House officials have said such pardons are unnecessary, pointing to Justice Department legal opinions that supported the administration’s methods of detaining and interrogating terror suspects.
“Before conducting interrogations, the CIA officials sought the advice of the Department of Justice, and I am aware of no evidence that these DOJ attorneys provided anything other than their best judgment of what the law required,” Michael Mukasey, Bush’s attorney-general, said in a speech on Nov. 20 in New York.
He promptly passed out a moment later in a fainting spell that became a YouTube sensation, not long after an audience member shouted: “Tyrant! You are a tyrant!”
Nonetheless the ball is now firmly in Obama’s court with the White House’s insistence that the Bush administration was assured by Justice Department officials that there was nothing illegal about “the program.”
The president-elect is apparently eager, however, to avoid the appearance of seeking to punish Bush and the partisan warfare that could erupt as a consequence. Those close to Obama say it’s unlikely he’ll launch criminal probes into the Bush administration’s post-911 practices.
Instead, he’s reportedly considering a commission to investigate counter-terrorism policies and publicize as many details as possible about the Bush government’s torture policies.
The idea appeared to win some support this week from Patrick Leahy, the Democratic chairman of the Senate’s judiciary committee.
“Personally, I would like to know exactly what happened . . . more as a ‘past is prologue’ kind of thing,” he said.
“I want to make sure it doesn’t happen again. Torture is going to be a major issue.”
The commission would have the power to order American intelligence agencies to open their files for review, and to question the senior officials who approved “waterboarding” and other torture tactics.