There are many here who disagree with President Obama's decision not to prosecute those who carried out torture on prisoners during the Bush administration. I, for one, do not. What they did was at that time legal, and sanctioned by the Department of Justice, which provided independent legal opinions on the order issued by their commander in chief.
For them to have refused to carry out the order, or to publicly disclose what was going on would have been treason and could have resulted in their execution given that we have been at war.
The problem I have is not with them. It is with those who conspired to commit a systematic perversion of the entire concept of a nation governed by laws. And therein lies my problem with the most recent position put out by the president's chief of staff, Rahm Emmanuel.
I, unlike what seems to be a majority posting recently, do not believe that this is sign of Obama being "just like Bush" or his having sold us out with empty promises. No, I simply think he is wrong here. I think he is wrong for potentially understandable reasons, but he is still wrong. I'd like to make the case for providing him incentives in a constructive manner to show him the error of his ways.
A Nation of Laws
More than anything else, the biggest crime against the people of the United States that George Bush committed during his time as putative head of state was the promotion of the idea that he made the law so that no matter what he did, it was legal. He, the decider, got to play King, much like his namesake who by doing so gave rise to the creation of a nation. This nation, born of the revolutionary idea that the people are sovereign, not the king, requires us to follow rules for governance which transcend any particular chief executive. We created a Constitution that explicitly limits the reach of government to those powers which are enumerated for it. It provides a structure which was explicitly designed to provide checks on the individual elements of the government and separated the creation, execution and evaluation of laws into three equal branches.
George Bush ignored the principle idea upon which our government is built - that "because I say so", which may work for a parent prior to the teen years, does not work for a people comprised of free citizens. It is because of this fact that we, as a free people whose basic freedoms are at risk, should and in fact must rise up in opposition to our (at least in my case) beloved President and show him by massive protest that we can not abide this decision unless and until he explains why he, rather than we, is correct.
Policy versus Execution
So exactly who should be held accountable. For my part, I am willing to use as the bar the one that was initially set forth by the president - those who were in good faith carrying out legitimate and legal orders and were in roles where to do otherwise would have been punishable by court martial or similar treatment for non-soldiers in my view should not be prosecutable. This does not mean to say that the excuse of "simply following orders" is at all times (in general or even here) valid. It is for precisely the reason that soldiers and others have in their training the expectation built into them that they must question orders which seem to depart from governing law that Bush obtained the "Torture Memos". For those who carried out those orders subsequent to issuance of the memos, or those who were assured that appropriate legal review had been completed I believe there is no grounds for prosecution.
This leaves a large swath of individuals, indeed large organizations, culpable and prosecutable. In fact, I believe it is the sheer magnitude of the number of guilty parties which is causing President Obama to back away from doing so.
I think it is a false choice that is being made between prosecuting all and prosecuting none which is the flaw that is threatening to destroy what could be the historic nature of his presidency. I believe he is applying his pragmatism - the greater good is to address his many problems and lead the country into economic health by fixing health care, climate change, international relations, etc., etc. - incorrectly to an issue which is so fundamental as to potentially be able to lead to the unraveling of the entire experiment in democracy that was begun some 220 years ago this July.
I believe that this is one of those times when we must provide for our president the motivation to reevaluate his position by letting him know that we are in fact not simply a legion of mindless supporters who will agree with every decision or remain silent when we disagree. This is not something that can be assuaged by promises of policy decisions in other areas that we hold dear. This is fundamental. Criminal activity which subverts the Constitution of the United States of America is treason. The only real question in all of this is whether or not it will reach the Oval Office and the president's predecessor and his handler the vice president.
the question of prosecution and investigation is entirely distinct from the question of how far the prosecutions should reach. The keys elements here are twofold:
First, the investigation must start at the most readily available entry point, the memos and whatever other documentation there is and progress upwards until the very top is reached and downward until all the participants in developing this policy and involved in the conspiracy are identified and where appropriate (read that as culpable versus defensibly having strong reason to believe their actions were legal under the Constitution) prosecuted.
Second, prosecution does not necessarily mean that a general pardon could not be made for large numbers of individuals or that Congress couldn't grant limited immunity for those who had not additionally acted to cover up the actions of the President and his direct reports. The president could even conceivably pardon Bush and Cheney if it came to that once their actions were illuminated in the full light of day.
Finally, it is critically important that we not allow this to distract us from the many other areas that need the president's attention as well as ours. The president is able to multitask and his job requires it. I will support him on issues as I have going forward. However, I believe we need to make him feel the pressure on this issue like no other and for that I solicit your input and ideas.