Options for a CIA/Justice/White House Torture Probe

First published on APRIL 23, 2009

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There are many options available to both President Obama and the Congress regarding investigating and prosecuting people who were in the CIA, the Justice Department, and the White House for the use of torture during the Bush Administration.

What I would like to do here is encourage a discussion in the comments to this post about the pros and cons of the various ways a probe of the activities during the Bush years might be undertaken.

Of course, there are many who think that there should not only be no probe but that the memos from the Justice Department approving requests from the CIA to use "enhanced interrogation techniques" should never have been released in the first place.

Roger Cohen, writing in today's New York Times, typifies the argument that there should be no probe at all, no investigation, no prosecution. "I don’t think this recovery would be served by prosecutions, either of C.I.A. operatives or those who gave them legal advice. Such legal action, if initiated, would split the intelligence services and the military in paralyzing ways at a time when two wars, in Iraq and Afghanistan, are still being fought. The country would be lacerated."

Of course, Mr. Cohen, who titles his Op Ed piece "No Time for Retribution" offers no actual analysis for why he feels that any prosecutions would split the intelligence and military and paralyze them, let alone why it would lacerate the country. His biggest mistake is what most who argue for looking the other way make. He sees any actions toward getting to the bottom of this mess as "retribution." I see such actions as necessary if we are to do justice.

There may well be some who are seeking retribution; but justice demands, regardless how people feel on either side of this issue, that some form of investigation and likely prosecution is required. To do less is to deny that the United States is any longer the moral leader of the world, but rather it is a large, imperialistic, jaded and immoral force.

I do not doubt that we can be such a force, because between 2002 and 2008 our nation's leaders turned us into such a nation in the eyes of the world. Regardless, our history was not besmirched by such leadership for almost all of the over 200 years of our existence. It is time, if we do nothing more, to clear our name, to call out to the world that we take seriously the need for justice within our own government, and to be the transparent nation that our President says we will be under his administration.

Ways to probe the injustices perpetrated under the Bush Administration.

With Executive Branch initiative.

1. Let the Justice Department initiate an investigation of both its own activities and those of the CIA. This turns the problem over to the Attorney General and somewhat puts a barrier between Justice and the current Administration.

2. Either the White House or the Justice Department appoints a Special Prosecutor to look into the matter. This runs the risk of removing the discussion from the public eye for several years, since a Grand Jury will immediately be created and all testimony will be secret, much as the situation was involving Scooter Libby.

3. The President creates a bipartisan Commission, similar to the 9/11 Commission to investigate and report. Assuming this commission were given subpoena power and the power to recommend prosecution to the Justice Department, and assuming that this Commission was required to report periodically on the status of its work this might provide better visibility to the public.

4. The President creates a Commission that includes the other nations who also participated as allies in the Iraq War. This idea is highly unlikely to happen but has been floated by enough people that I have added it here.

5. The President create a Truth Commission similar to the way that South Africa did at the end of apartheid. That Commission was designed to shed light on the actions of the past and allow those who participated in those actions to denounce their own part in those actions. But it was not set up to prosecute, just to bring to light the atrocities, to shame those who were culpable and to give them an opportunity to apologize to the nation.

With Congressional initiative

1. Various Committees in Congress could hold additional oversight hearings and investigate under current rules.

2.They could also create investigative Commissions similar to what the White House can create, only the Commission would report to Congress.

3. They could create a joint committee specifically established to look into these abuses.

All of the Congressional options would require complete cooperation of the White House to be effective. And while the President might go along with some investigations, he has made it clear that he wants no prosecutions whatsoever of the CIA.

He might bend on that and allow it, but without his approval of the investigations by Congress there would be little that the Congress could effectively do. And this presents the specter of pitting a Congress against the President that the President needs to be behind him on other urgent matters; and of causing attention to be drawn to the fight between the two branches of government rather than to the subject of the investigations.

Conclusion and appeal for discussion

Whatever method is chosen it seems to me that it is imperative that we insist on transparency as to the progress of the investigations. By definition investigations and transparency are at odds. So I am not saying that the results of sensitive investigations be released before they are analyzed, but that real, clear and open progress reports be made public so that the whole issue does not get buried by "investigating the problem" for several years.

How about you? What would be the way you would go about this, and why? Let's have a civil and educational discussion of this, similar to the ones we have had on my last two posts on this subject.

The Ethics of The President's Decision on Torture

First published on APRIL 19, 2009 1:54AM

I have been discussing the issue of the President's decision on how to handle torture which has taken place under the prior Administration with a good OS friend of mine. He has come to the conclusion that the President made the correct decision regarding his handling of the Justice Department and the CIA on the question of torture at secret out of country CIA prisons. He also thinks that the President's decision was morally defensible. I do not agree. And so we remain friends who agree to disagree. It would take a lot more than this to hurt our friendship.

We were discussing this on both political and religious levels. In the process of our discussion and my subsequent careful review of the excellent comments on my last post on this issue, I have clarified my own thinking.

I want to be clear that in spite of my passion about the conclusion I have come to, it is not obvious that it is the only "right" answer that men and women of good will can come to. In issues like this that involve situational ethics we have to recognize that some issues have more than one acceptable answer.

The argument against the Bush Administration is that they "said" what they were doing was not torture, but it was. Thus the people in Justice who approved the requests of the CIA to use certain extreme interrogation techniques which the CIA claimed were not torture, and any people above them in the White House who told the Justice Department the decision they wanted, would potentially face criminal prosecution should it be decided that what the CIA did was, in fact, torture. And those in CIA who proposed the use of torture and those who implemented it would likewise face criminal prosecution.

If it were torture, then members of both the Justice Department and the CIA, because they approved actions which were, in fact, torture, and were forbidden under international law to which the US is a party, and under domestic statutes which forbid torture, would be guilty of violating both US and international law. To the extent that the White House was involved in either advising the Justice Department, or ordering the Justice Department, on how they wished the Justice Department to rule, then those in the White House would also be in violation of the law.

However, without an investigation we will never know who, if anyone, in the White House was involved. There are a handful of people in the CIA and in Justice that we know were involved, but it is likely that there were people at higher levels in the CIA and possibly in the Bush Administration who were also involved. Only through investigation will we have any chance to know who was.

Clearly, those people in the CIA who outlined precisely what torture they wanted approval to use, but who claimed that these actions were not torture, would be in violation of the law. And, once they actually authorized the use of torture they would be equally in violation of the law, unless a claim of "just following orders" could be sustained. That seems unlikely to me since they were the ones who developed the extreme procedures in detail that they eventually used.

How far down into the CIA that illegal activity would extend would have to be investigated. At some point in the CIA hierarchy we might possibly come to a level in which the person literally could not say "no" without being fired and losing his career. Whether to prosecute those at the lowest level who actually used these techniques would present a difficult decision. They were literally "following orders."

There is no clear demarcation that would say, for example, where to draw the line as to whether members of the CIA who did the actual torturing should be held accountable or not. Perhaps another analogy can help clarify. In the case of the military there are times when you do hold even lower level soldiers accountable. To me it is clear that a soldier who lines up civilians and shoots them in cold blood and orders his men to do likewise, like Lt. Calley did in Viet Nam, needs to be prosecuted.

However, all of this is mute, or at least made much less effective, by the President's decision to say that members of the CIA would not be subject to prosecution. So none of this can even come up unless the President were to investigate, or to appoint a Commission or Special Prosecutor to investigate.

The decision the President has already made which says, "...those who carried out their duties relying in good faith upon legal advice from the Department of Justice ... will not be subject to prosecution" takes much of the power of such an investigation out of the hands of the investigators. It makes investigation of the CIA by the Executive Branch far more problematic because the investigators could not recommend prosecution.

The Congress, through its investigative oversight functions, could try to investigate but without the cooperation of the Executive Branch it would not get far. I believe that the President knew he was sending that message to Congress, loud and clear.

My friend and I, who are both Christians, also discussed this issue from a religious point of view as to the ethics of the President essentially "forgiving" the people in the CIA. If the President's action is seen as an act of forgiveness, then does that mean that a Christian would be required as a matter of ethics to offer that forgiveness?

My answer is that a Christian may offer forgiveness even as s/he seeks justice. Were this an issue within the Church, for example, the church has to be in the position of speaking truth to power when it is abused even if the Church absolves the person of specific sins upon the contrition of the person.

And if the CIA sought approval of the use of torture, and then used torture, the issue becomes not just an issue of forgiveness, but also an issue of justice. From my perspective, one has to decide whether the crimes are so heinous that they demand justice. In this case I believe that they do demand justice.

God requires justice as well as extending forgiveness. He expects us to do both with a proper regard to the nature of the abuse and its effects on the abused. Torture violates basic human rights and qualifies as heinous abuse.

A more stark example might be a serial child rapist and murderer that is finally caught. Would it be ethical for us to say, "We forgive him" and then just let him go on to do the next and the next? No. We could say that we forgive him if he admits his guilt and says he will change, but we should also say that he has to pay for the consequences of his actions. That is justice.

As long as there is evil in the world God will be a God of justice as well as a God of forgiveness. For God to not be a God of justice would mean that God turns his/her eyes away from the poor, the disenfranchised, those abused in prisons, those downtrodden and oppressed by evil governments, and has nothing to say against all the evil deeds that power allows leaders to do.

I would prefer that moral and ethical judgments would only come from God. But God has chosen to delegate to us the duty to make many such decisions. Political leaders must make ethical judgments every day and they have to be accountable for their actions stemming from those judgments.

We found out what happens when leaders do not make correct ethical judgments. The trials of the Nazis at Nuremberg are the starkest modern example of investigating, prosecuting and sentencing the failure to exercise even a modicum of morally correct ethical judgment by political leaders.

The President made a decision that I think is right in saying that the US will no longer torture. Yes, he has stopped that evil practice. But he said specifically only that "his" Administration would act in accordance to our laws. He deliberately limited the effect of his decision to his Administration only. By not investigating and prosecuting, however, he encourages the possibility that any Administration coming after his can decide to reverse his decisions.

He did not speak to or even hint at doing anything that might help preclude future administrations from reversing his decisions on this issue and reverting to the use of torture. And I believe that this failure sends a message to those who may want to do such acts in the future in the name of national security or other specious arguments that they can do it and likely will not be punished for their actions.

It is possible to make an argument for what the President has done. It is not cut and dried. But from my point of view, government leaders have to decide whether to take the high road and do the right thing and take the political heat for it, or do the politically expedient thing and "forgive." To me what the President did is less about forgiveness than it is making a pragmatic political judgment. But there are times when principle must trump pragmatism.

I feel that unless we expose the evils of the Bush Administration, not just on this subject, but also on domestic spying, lying about Iraq and starting an unjust war, and a dozen other abuses of power, then we leave the door wide open to a new interpretation of the Imperial Presidency.

No one need agree with my conclusions. There is more than one acceptable solution to the ethical and moral decisions a President has to make. Most of the time when they have to make moral and ethical decisions they are working with difficult decisions that pose issues of "situational" ethics, the facts of which are often unique. Presidents seldom have to deal with issues that present an easy answer of ethical certainty. If it were easy issues like this would not come up. They are never easy.

As a theologian I know that while Christians seldom talk about a God of justice, our God is in fact a God of justice. Were God anything else God would be in no position to urge Christians to confront evil in the world. That he delegates some of his power to those who lead is also clear. It is how leaders use that delegated power that is at issue here.