To Give Obama Some Small Credit Where Due

Crossposted from Antemedius

Yesterday was a very dark day. Most who know me know how hard and unmercifully I slammed Obama and Holder, but Obama especially since he is Holders superior, for their excusing and shielding of CIA torturers from prosecution based on nothing more than the universally repudiated Nuremburg defense of “just following orders”. Many may even think that I was and am being too inflexible in my criticisms and direct comparison of Obama to Bush over this matter with my opinion that he is also shielding Bush and Cheney with his actions.

Protecting and shielding war criminals.

That remains my opinion, and will remain my opinion unless and until a Special Prosecutor is appointed and George Bush and Dick Cheney are sitting in a prisoners dock charged with war crimes for which there is more than ample evidence, above and beyond their own public confessions and gloating, that they committed.

To be honest I really don’t care whether the CIA Interrogators are ever prosecuted. They will have to live with what they did, and they will probably be shunned for the rest of their lives by anyone with any remnants of humanity left in their souls.

It is one thing to shield the followers of orders. It is an entirely different thing to shield and protect the issuers of those orders. To do so is to be complicit in the crimes and no better and in fact worse than the perpetrators, in my opinion.

But to give Obama some small credit where due, he and Holder did leave themselves an opening, and in fact not only left an opening but created that opening with their actions yesterday. We can even speculate that perhaps did what they did yesterday they did in an attempt to create enough public anger and drum up enough public support to make it politically possible to prosecute Bush and Cheney.

If, and it’s a very big if that still appears very doubtful, If Obama and Holder did what they did yesterday as setup for future prosecutions of Bush and Cheney then they will earn a little of my respect back.

Bush and Cheney must be prosecuted.

Glenn Greenwald this morning:

In the United States, what Obama did yesterday is simply not done.  American Presidents do not disseminate to the world documents which narrate in vivid, elaborate detail the dirty, illegal deeds done by the CIA, especially not when the actions are very recent, were approved and ordered by the President of the United States, and the CIA is aggressively demanding that the documents remain concealed and claiming that their release will harm national security.  When is the last time a President did that?  

Other than mildly placating growing anger over his betrayals of his civil liberties commitments (which, by the way, is proof of the need to criticize Obama when he does the wrong thing), there wasn’t much political gain for Obama in releasing these documents.  And he certainly knew that, by doing so, he would be subjected to an onslaught of accusations that he was helping Al Qaeda and endangering American National Security.  And that’s exactly what happened, as in this cliché-filled tripe from Hayden and Michael Mukasey in today’s Wall St. Journal, and this from an anonymous, cowardly “top Bush official” smearing Obama while being allowed to hide behind the Jay Bybee of journalism, Politico’s Mike Allen.

But Obama knowingly infuriated the CIA, including many of his own top intelligence advisers; purposely subjected himself to widespread attacks from the Right that he was giving Al Qaeda our “playbook”;  and he released to the world documents that conclusively prove how that the U.S. Government, at the highest levels, purported to legalize torture and committed blatant war crimes.  There’s just no denying that those actions are praiseworthy.  I understand the argument that Obama only did what the law requires.  That is absolutely true.  We’re so trained to meekly accept that our Government has the right to do whatever it wants in secret — we accept that it’s best that most things be kept from us — that we forget that a core premise of our government is transparency; that the law permits secrecy only in the narrowest of cases; and that it’s certainly not legal to suppress evidence of government criminality on the grounds that it is classified.  

Still, as a matter of political reality, Obama had to incur significant wrath from powerful factions by releasing these memos, and he did that. That’s an extremely unusual act for a politician, especially a President, and it deserves praise.  None of this mitigates any of the bad acts Obama has engaged in recently — particularly his ongoing efforts to shield Bush crimes from judicial review by relying on extreme assertions of presidential secrecy powers — but, standing alone, his actions yesterday are quite significant.

As is obvious from everything I’ve written over the past three years, I think the need to criminally prosecute those who authorized and ordered torture (as well as illegal surveillance) is absolute and non-negotiable (and, as I wrote earlier today, in the case of torture, criminal investigations are legally compelled).  A collective refusal to prosecute the grotesque war crimes that we know our Government committed is to indict all of us in those crimes, to make us complict in their commission.

Criticisms directed at Obama and Holder for advocating immunity for CIA officials who relied in “good faith” on DOJ memos (a mere subset of the government criminals) is absolutely warranted.  But, it is not Obama’s sole responsibility — or even his decision — to prosecute.  As a strictly legal matter, that is a decision for the Attorney General, independently, to make; it is Eric Holder who has the obligation to enforce the law, independent of anything Obama wants or says and regardless of what public opinion demands.

But more crucially, it is also the responsibility of the citizenry to demand that this happen.  What Obama did yesterday — whether by design or not — provided the most potent tools yet to create the political pressure for prosecutions.

[snip]

The onus is on those who believe in the rule of law to find ways to force the government to criminally investigate whether they want to or not (this petition demanding that Holder appoint a Special Prosecutor is a very good place to begin, though it will require much more than just petitions).

The most criticism-worthy act that Obama engaged in yesterday was to affirm and perpetuate what is the single most-destructive premise in our political culture:  namely, that when high government officials get caught committing serious crimes, the responsible and constructive thing to do is demand immunity for them, while only those who are vindictive and divisive want political leaders to be held accountable for their crimes.