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Editor’s Note: President Barack Obama is seeking a middle ground on torture – ordering the practice stopped and releasing the secret documents that sought to justify the abuse of prisoners, while signaling that no prosecutions should follow and that the country should look to the future, not the past.

Ironically, Obama’s forgiveness toward the Bush administration isn’t winning Obama any thanks from Republicans who continue to defend torture and denounce Obama for endangering the nation. In this guest essay, the Independent Institute’s Ivan Eland urges Obama to just do the right thing and demand accountability from the guilty:

Although Barack Obama should be applauded for stopping torture by the U.S. government and pledging to close the infamous Guantanamo and worldwide CIA secret prisons, he is nevertheless playing politics with the issue to get the best of both worlds.

To poke his predecessor, Obama released graphic memos from the Bush Justice Department that appallingly justified simulated drowning, sleep deprivation for extended periods (for example, an unbelievable 11 days), cramped confinement in a small dark box, stress positions for extended periods, forced nudity, and physical violence against detainees.

At the same time, so as not to excessively rile the Republicans, who he must still work with to pass legislation, Obama said that CIA personnel who followed the twisted Bush legal guidelines authorizing such torture would not be prosecuted. He also came out against further inquiry into the matter because “nothing will be gained by spending our time and energy laying blame for the past.”

What a relief that we do not follow the same philosophy when murders or other illegal acts occur. And many of these harsh interrogation techniques are illegal under international conventions signed by the United States, which prohibit “cruel, inhumane or degrading” treatment.

Furthermore, waterboarding is clearly illegal under U.S. law, and Japanese interrogators were prosecuted during post-World War II war crimes trials for doing it and other techniques mentioned in the memos.

Leon Panetta, Obama’s CIA chief, argued that even releasing the memos would divulge intelligence methods. Yet Obama said that such harsh techniques would never be used again. So what’s the problem?

Obama’s intelligence chief, Admiral Dennis Blair, argued that CIA officials were desperately trying to prevent another attack in the dark days after 9/11 and should not be prosecuted now that the sun is shining. The road to hell is paved with good intentions.

Of course, Blair is implicitly assuming that torture is effective in getting good information out of prisoners, which most seasoned FBI and military interrogators say it isn’t. Khalid Sheikh Mohammed, the planner of the 9/11 attacks, apparently gave the CIA bad information when he was tortured, most likely just to stop the pain.

Even the Justice Department memos describing the harsh techniques admitted that it was difficult to distinguish a prisoner who was holding back information from one who had no information to give. Also, many in the U.S. military are not fond of torture, because other countries can use it as an excuse to torture U.S. prisoners.

Furthermore, if the United States has a reputation for torturing prisoners, enemy soldiers have an incentive to fight to the death rather than surrender, thus resulting in more deaths among U.S. military personnel.

Besides many experienced interrogators feel that mom’s advice is best: you get more with sugar than vinegar.

CIA officials who engaged in torture should be prosecuted. After World War II, the United States didn’t allow lower level Nazis and Japanese to avoid prosecution for war crimes by using the “just following orders” defense.

Why should CIA officers be any different? They knew these acts were illegal under U.S. law and international conventions when they perpetrated them.
But torture during the Bush administration was worse than that committed during the Spanish-American and Vietnam Wars for one reason: the authorization came from on high. So the nation needs to know how far up the line the order was given to perpetrate the war crimes.

Baltasar Garzon, the assertive investigating judge in Spain who ordered the arrest of former Chilean strongman Augusto Pinochet, is apparently deciding whether to bring charges against six high Bush administration officials for authorizing torture, including David Addington, former Vice President Dick Cheney’s chief of staff; Alberto Gonzalez, Bush’s Attorney General; John Yoo, a Justice Department lawyer who wrote the memos justifying torture, and Douglas Feith, Bush’s undersecretary of defense for policy.

Curiously, Spain could claim jurisdiction for the prosecution because it is a signatory to the United Nations Convention Against Torture, and some former Guantanamo prisoners claiming that they were tortured are Spanish citizens or residents.

But why stop there? Secretary of Defense Donald Rumsfeld clearly knew about the torture, and it recently came out that President George W. Bush himself was aware of it. So they condoned illegal acts.

It is true that as we go up the chain of command, it gets politically harder to prosecute former officials. Even though many Nixon administration officials went to jail for their illegal acts during Watergate, President Richard Nixon was unconstitutionally pardoned before even being charged with a crime.

President Gerald Ford, Nixon’s successor, claimed that he was doing so to spare the nation the continued trauma of a long presidential trial. Then as now, great crimes were perpetrated and covered up in the name of “protecting America.”

As the rock band AC/DC sings, “It ain’t easy livin’ free.” In a republic, the rule of law — the principle that the laws apply to everyone — may well be the most important thing.

If we don’t want illegal acts at any level of government to be repeated, they must be exposed, thoroughly investigated, and prosecuted — no matter who is implicated and how painful it is for the country.

Yet President Obama, for political reasons, is not only shielding high-level Bush administration officials from investigation and prosecution but even low-level CIA interrogators. Simply “moving on” will not deter future U.S. officials from going back to torture when the political winds permit it.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland has spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. His books include The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

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