As anyone paying attention knows by now, the Obama Administration released four memos relating to the legal justification for what it called "enhanced interrogation techniques", otherwise known as torture. Coming on the heels of the release of those memos was the President's announcement that those who acted under the aegis of these memos will not be prosecuted. There has been more than a little furor raised over the announcement, even as Obama has been praised (and vilified, by an anonymous Bush Administration official) for starting to open doors and windows, at least a little, on the dark world that was the Bush Administration.
I have been cautious in addressing this issue because I think I see a pattern of Administration behavior that might not be clear. I could be wrong, but I believe that what many, including myself, see as foot-dragging on overturning Bush-era policies is actually a deliberate attempt on the part of Pres. Obama to be the anti-Bush. While I know it might be difficult to remember pre-9/11 Bush Administration practices, one of the complaints against them was that, in essence, they went out of their way to undo Clinton-era policies. They reflexively overrode pretty much anything that Clinton did.
While there is much merit to the idea that part of what Obama needs to do is simply reverse course, I believe that Obama is being very deliberate in his cautious approach to policy review. Thus, for now, we have the spectacle of the Obama Justice Department hewing the Bush-era line on matters of secrecy in the courts. As far as the release of these memos is concerned, and the ensuing outcry over the President's announcement that those who acted under these memos will not be prosecuted, I believe this might just be a signal of this deliberateness in action.
At the same time, the President certainly didn't rule out investigating those who actually ordered and those who wrote these memos. Part of the issue, of course, is that, from a legal point of view, we don't have a crime yet. While this may be difficult for many on the left to grasp, we do not, as yet, even have a case that anything illegal was done. Nothing has been brought before the courts. No individual has been indicted under war crimes laws, or crimes against humanity. Before we get to the point where such prosecutions take place, we first have to determine, from a legal point of view, whether laws were broken.
From a common-sense perspective, of course, this might seem cut and dry. Yet, our legal system being what it is, it isn't, and we need to remember that part of this long process is restoring the rule of law. Part of restoring the rule of law is not rushing to judgment. It might be well and good for a constitutional lawyer like Glenn Greenwald to make arguments that amount to summary judgments on the guilt or innocence of individuals, it should be noted that he does so not as a lawyer, but as a political commentator. I might even agree with his opinions. That doesn't mean, however, that we can then, willy-nilly, go out and grab folks and put them behind bars because they set in place policies and practices with which we disagree. There is a difference between the common sense understanding that, indeed, the Bush Administration violated any number of American and international laws. This is not the same thing as a legal case.
If I had to guess, I would say that the Obama Justice Department is being as deliberate as possible in order to make sure that no one believes that any potential legal action is politically motivated. While I know that many on the right will believe this no matter what happens, most Americans, even conservatives, are fair-minded enough to accept that, if done with deliberateness and thoroughness, an indictment of senior Bush Administration officials for crimes related to reports of torture would be far more acceptable than a quick rush with a whole lot of press coverage.
It certainly doesn't satisfy many liberals and leftists - including me at times - but it does have merit. We should also remember that Obama has not yet completed the first 100 days of his first term; consider how profoundly different our political discourse is, our politics is, in less than 100 days, and perhaps we should give him the benefit of the doubt.
UPDATE: I may have spoken too soon. Apparently, White House Chief of Staff Rahm Emmanuel announced on This Week that there will be no prosecutions even of senior Bush officials who created the policy that led to torture.
We'll see, won't we?
