Sunday, April 19, 2009
Jonathan Turley is a Stand-Up Guy, but He May Want to Sit Down Regarding Obama’s Response to Torture.
For many months, George Washington University Law Professor Jonathan Turley has been a leading voice for the rule of law and the importance of prosecuting war crimes related to torture. He’s very compelling, clearly a man of principle, and probably someone I would be proud to see some day sitting on the U.S. Supreme Court.
But when talking about President Obama’s response to Bush era torture, Turley seems quite prone to slipping into spin, rather than fact. Here’s Turley talking to David Schuster about Obama’s decision to release the memos used to justify torture and simultaneously announce that CIA agents who followed the memos in good faith would not be prosecuted. Turley’s conclusion, that Obama is “blocking” an investigation, seems to be a pretty clear example of stretching to find the worst possible interpretation of a mixed set of facts.
While Turley has the luxury of focusing on only one, admittedly noble, goal – holding the perpetrators accountable for war crimes - President Obama has a couple of other goals as well. He needs to avoid the appearance of an overtly partisan investigation that might further incite the racist, gun toting, loonies associated with the recent teabagging phenomena from moving even closer to irrational violence. Second, he needs to maximize his ability to “shake the trees” and get good witnesses who can provide iron-clad evidence that results in irrefutable convictions that have widespread public acceptance (in order to achieve the desired “cleansing effect” on the soul of the nation).
So look at what Obama has actually done:
1) He released a set of memos that he knew would stir public outrage and increase the demand for accountability.
2) He announced that any agents who conducted torture while following orders in good faith would be immune from prosecution.
That’s it! Since we are already starting to see reports of evidence showing that some torture activities exceeded what was authorized by the newly released memos, even Turley would have to admit the likelihood that Obama knew he wasn’t offering immunity to everyone involved in torture.
Now, rather than calling for an investigation of whether or not what occurred was torture, the investigation can be centered on whether activities were conducted “in good faith” according to the rules promulgated in the memos. Even conservatives who insist that the methods currently identified as torture were necessary and justified, would have to condemn those who acted outside of the rules authorized by Bush’s legal “yes men.”
In addition, with those following the “rules” already being given immunity, for those who acted outside of those rules, the natural defense will be to try to argue that whatever they are charged with doing was sanctioned by superiors and thus was “in good faith!” In other words, Obama’s statement of immunity increases the incentive for anyone charged with acting outside of the rules authorized by the torture memos to give up the leaders who authorized them to stretch the rules or act outside of them!
My guess is that Obama knows there are such leaders, and may well be setting up the chess board so that they can eventually be prosecuted in a non-partisan fashion with the widespread public acceptance necessary to avoid derailing the rest of his policy goals.