by Joel Skousen, World Affairs Brief

Everyone knows that only a vigorous prosecution of those responsible will reestablish America as an honest broker for honesty and truth—but that isn’t going to happen. The Obama administration is trying to engineer first, a delay by inquiry (all government-run investigations are cover-ups of something), and second, is to find some criteria for prosecution that no government official will meet, thus justifying, once again, moving forward without even the appearance of a show trial. Even the Post WWII Nuremberg trial standard (obeying orders is no justification for crimes against humanity) is being totally disregarded by the Obama determination “not to prosecute those who relied on these memos and guidelines.” If following direct orders under penalty of punishment is not sufficient justification to excuse a violation of the Geneva Convention, how could following a far less coercive guideline provide justification? I can’t.

There are only a few highly placed persons with sufficient hubris to continue justifying the Bush policies on torture in spite of its near uniform condemnation. Former VP Dick Cheney, for one, is completely unrepentant. Another prominent example is David B. Rivkin, globalist and self-styled “constitutional” lawyer (is that a non-sequitur or what?) —member of the notorious Council on Foreign Relations. Rivkin told the press of the Bush administration memos on April 17, “This data is analyzed in great detail to establish that the use of these techniques does not inflict either physical or psychological damage.” —No, just horror and near-death experiences. But, apparently that’s OK.

As Thomas R. Eddlem noted, Rivkin is parsing words over the Bush memos: “One such memo, authored by John Yoo and issued under the signature of his Justice Department superior Jay S. Bybee, attempted to define torture virtually out of existence by claiming that torture only consisted of pain equivalent to ‘major organ failure or death.’ The dictionary defines ‘torture’ as ‘excruciating’ or ‘severe’ pain. Under the Bush administration’s manufactured definition of torture, bamboo shoots under the fingernails, electrical shocks on sensitive body parts, amputation of fingers or toes, and other torments considered torture under the definition of the word since the dawn of time wouldn’t qualify as ‘torture.’ They don’t consist of ‘major organ failure.’ They’re just ‘harsh treatment,’ in the language of the former Bush administration and other apologists for torture.

Whatever you call it, it was torture, and it included: Waterboarding (which is drowning until just short of asphyxiation–nothing simulated about it! Khalid Sheik Mohammed was waterboarded during 183 sessions, 15 seconds a session, spread over one month, and yet 90% of what he revealed or admitted was absolute garbage); sleep deprivation, putting a prisoner in a coffin-like box with an aggressive insect(s); banging heads against a wall, chaining to the ceiling, naked; and subjection to long-term periods of cold, damp conditions also without clothing. If that isn’t torture, I don’t know what is. Just because the US had unprincipled medical personnel attending did not mean it was humane. Their only purpose was NOT to see that no harm was done, but that the prisoner stayed alive. They failed in at least one instance (at least one prisoner died) and they failed the Hippocratic oath not to do harm in every instance.

The NY Times (who long helped cover up for these crimes, but now claims to be horrified) editorialized thus: “To read the four newly released memos on prisoner interrogation written by George W. Bush’s Justice Department is to take a journey into depravity. Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect —— all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.

“In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face.

He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary. These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.”

Jay Bybee is now being subjected to a well justified campaign by civil libertarians demanding his impeachment from the bench. Knee jerk defenders of Bush administration policies like Senator Orrin Hatch (R-Ut) decry the impeachment call and defend Bybee as a true patriot. Perhaps he was at one time, but Bybee has fallen a long way from his BYU beginnings where he wrote a conservative treatise on the 9th and 10th amendments to where he came to rest as an abject government yesman lawyer at the Department of Justice. This kind of pathetic compromise of principle for advancement is, sadly, typical of eager graduates from Brigham Young University Law School who are encouraged to seek clerkships with the most prestigious judges in order to “make it” in the establishment world. This highly rated law school, named in honor of hard line constitutionalist J. Reuben Clark, ought to spend more time imbuing graduates with an allegiance to America’s founding legal document (revered by the school’s mentor and the LDS Church) than trying to seek so much acceptance in the world.

Europeans seem much more willing to prosecute heads of state for human rights violations—though only if they can be labeled as Right-Wing dictators like Pinochet or Milosevich. While Bush and Cheney are viewed as Right-wing, my readers know that they are actually Globalists, so they will be spared. The Associated Press noted that one international lawyer said there was a duty to prosecute but admitted that he didn’t think the US would suffer any sanctions if it failed to act. “Manfred Nowak, an Austrian law professor who serves as a special rapporteur for the Geneva-based U.N. Human Rights Council, said the United States had committed itself under the U.N. Convention against Torture to make torture a crime and to prosecute those suspected of engaging in it…. President Barack Obama’s decision not to prosecute CIA operatives who used questionable interrogation practices violates international law according to the U.N.’s top torture investigator. But he said Washington is unlikely to face any legal sanctions.” The US has a lot of clout, both in public and in secret, with Europe as evidenced by the CIA’s ability to get Europe’s most powerful countries to go along with his policy of secret “rendition” and torture of anyone labeled a terror suspect—all while denying any knowledge of or collusion with the US.

Last Thursday, Obama essentially absolved CIA officers from prosecution for harsh, painful interrogation of terror suspects under the former Bush administration. The AP noted that “The announcement was met with disappointment from human rights groups and former detainees who condemned such methods as torture.” As the world’s condemnation grew about Obama’s decision not to prosecute, his handlers suggested a slick way to defuse the crisis. Obama would change his policy to a “might prosecute” and then claim it wasn’t up to him—inferring that his own appointee, AG Eric Holder was independent of the Executive. Technically, that is supposed to be true, but never has been.

Taking his cue from Obama and giving the appearance of independence, AG Eric Holder acknowledged this week that despite previous comments made by the President, it remained a possibility that Bush administration officials could be prosecuted for devising interrogation policies. “Look what it’s done to the image of the nation… We’re going to follow the evidence wherever that takes us… No one is above the law.” We’ve heard that before from Obama. Holder ended with, “So we will just see what happens [after the inquiry, which will take months].” I’ll lay odds nothing will happen.

Margaret Talev of McClatchy Newspapers reported that “A newly declassified narrative of the Bush administration’s advice to the CIA on harsh interrogations shows that the small group of Justice Department lawyers who wrote memos authorizing harsh interrogation techniques were operating not on their own but with direction from top administration officials, including then-Vice President Dick Cheney and National Security Adviser Condoleezza Rice. Cheney is probably untouchable for now, but Rice seems to be in someone’s sights as a possible scapegoat.

Richard Armitage, former undersecretary of State under Rice is saying he “should have resigned over the torture issue,” implying both that he knew about it and disagreed. However, Armitage is so much a part of the dark side of government that I can’t trust anything he says. He is, in my opinion, totally without principles. He was manager of the CIA’s drug pipeline coming out of the Iron Triangle (Cambodia/Thailand jungles) during the Vietnam War. Whether he is positioning himself for exoneration to keep his career alive, or actively participating in outing Rice, I can’t really say.

Another shifty insider, Philip Zelikow, is also claiming that his memo opposing torture was destroyed by the government—in an attempt to claim to destroy any evidence of dissent. Philip Zelikow, a former State Department lawyer and adviser to then-Secretary of State Condoleezza Rice, was also the executive director of the 9/11 commission, which systematically covered up for government involvement in the 9/11 attacks. He may well have opposed torture, but it certainly wasn’t because he had any moral scruples. The only one who can be hurt by all these “It wasn’t me confessions” is Condi Rice —whom I have no sympathy for. The larger question is what did she do to irritate the PTB to get outed like this?

Finally, I have to agree with Michael Ratner, writing for Counterpunch. “The coming Torture Commission is a trap. Today I awoke to read that a number of human rights type groups have called on President Obama to create a commission of accountability to investigate and report publicly on torture and the cruel and inhumane treatment of detainees. There is not a word in the petition about criminal prosecutions of the torture team. Yet, I know that some of these groups would say they still want prosecutions. Sadly, this call and a commission if set up, would almost guarantee that prosecutions won’t happen. Briefly, here is why.

“We have reached a critical political moment on this issue. Obama has been forced or pushed to open the door to prosecutions, an opening I thought would take much longer to achieve. If there was ever a time to push that door open wider and demand a special prosecutor it is now. We have documented and open admissions of criminality. We have Cheney and Hayden admitting what they approved these techniques; and Cheney saying he would approve waterboarding again. We have the Senate Armed Services Report detailing how the torture program was authored and approved by our highest officials in the Whitehouse and employed in Guantanamo, Iraq and Afghanistan. And we have thousands of pages of proof. There is public outrage about the torture program and the media in the US and the world are covered with the US misdeeds. So at this moment, instead of human rights groups getting together and calling for a special prosecutor what do they do? Call for a commission. What this call does and it must be said strongly is take the pressure off what is the growing public push for prosecutions and deflects it into a commission. Outrage that could actually lead to prosecutions is now focused away and into a commission.”

The story keeps changing by the day. Jason Leopold reports that “President Barack Obama has backtracked on statements he made earlier this week in which he indicated he was open to a 9/11-type commission to investigate the Bush administration’s use of torture, telling lawmakers at a meeting at the White House Thursday he now doesn’t support the idea.” If there is an inquiry it will be internal to the Justice Department, where it can be more tightly controlled.

There’s no enthusiasm on the part of Republicans for an inquiry since it all began under Bush and Cheney, and the Democrats on the House Intelligence committee were also apparently informed. The Washington Times adds that “As scrutiny over who knew what about the controversial tactics has turned back to Congress, Mrs. Pelosi sought to distance herself from revelations that she and other key Democrats were kept in the loop by the CIA between 2002 and 2006.” More people knew about torture than either party wants to let on.

Joel Skousen is a political scientist, by training, specializing in the philosophy of law and Constitutional theory.