May 14th, 2009

President Barack Obama appears to be endorsing the Bush administration’s larger mission — to turn the American presidency into an elected monarchy. By refusing to enforce the laws against torture, he not only violated his oath of office; he joined George W. Bush in declaring that CIA operatives can commit crimes with impunity, provided that a government lawyer gives them a permission slip.

In so doing, Obama has embraced a new version the old Adolf Eichmann defense of following orders — "my lawyer said I could do it." Do not try this at home. According to our current president, only Justice Department lawyers can secretly authorize the commission of crimes.

Thus, in an August 2002 memo, Justice Department lawyers John Yoo and Jay Bybee clinically described a long string of cruelties that the CIA planned to inflict on Abu Zubaydah, an al Qaeda terrorist. Then they calmly explained why these cruelties would not, alone or in combination, constitute torture. No "reasonable man," the lawyers advised, would expect to experience "severe physical or mental pain or suffering" — of the sort that would "shock the contemporary conscience" — from anything the CIA planned to do, with the possible exception of waterboarding. But even that would not be illegal, so long as the CIA did not really intend to drown the fellow. As proof of the agency’s good intentions, Justice Department lawyer Steven G. Bradbury cited plans to have a doctor standing by to perform a tracheotomy, if necessary, to open a victim’s windpipe before he choked to death.

The officials who planned these war crimes and the agents and doctors who carried them out knew exactly what they were doing. With Eichmann-like efficiency, they specified every step, while Justice Department lawyers and White House officials conspired to pardon them in advance. All the conspirators knew these practices were war crimes, but President Obama has now instructed his Justice Department not to prosecute those who carried out the CIA’s interrogation protocols. That is not a case-by-case exercise of prosecutorial discretion by an independent Justice Department; this is a wholesale obstruction of justice by the White House.

During August 2002, CIA agents waterboarded Abu Zubaydah 83 times. In March 2003 they waterboarded Khalid Sheikh Mohammed 183 times, contradicting an earlier claim, now recanted, that once had been enough. But in 2005, a year after the Abu Ghraib scandal broke, Steven Bradbury secretly ruled that repeated waterboarding, even on this scale, does not constitute torture. It is not even cruel, he wrote, because being held down and nearly drowned does not cause "severe" pain. Nor is "prolonged" psychological harm likely to result from being nearly drowned 183 times.

After reviewing these depravities, Leon E. Panetta, Obama’s CIA director, tried mightily to keep them secret. When that failed, he persuaded the president that the agents were just doing their "duty." He did not explain how the CIA’s torturers differed from the young soldiers who went to jail for abusing prisoners at Abu Ghraib, or why CIA interrogators should escape punishment for doing what their Communist counterparts did to American captives during the Korean War.

By choosing not to prosecute the agents, the Obama administration has endorsed the Nixon-Bush-Cheney principle that law is optional whenever national security is alleged to be at stake. Yes, the president says, torture is bad policy, but it need not be criminal, so long as Attorney General Eric H. Holder, Jr., takes care not to enforce the laws against it. Holder’s lawyers even oppose allowing former prisoners to sue their torturers, because government torturers work for the "sovereign," and the sovereign cannot be sued without his consent.

We know why the Democrats are adopting Republican tactics. When push comes to shove, there is nothing that career politicians of either party won’t trade away for short-term political advantage. At the moment, Senate Republicans are blocking confirmation of Obama’s appointees until he promises not to prosecute Bush & Co. for their war crimes. Meanwhile, congressional Democrats have an expensive agenda to enact, so they are willing to trade away what’s left of our constitutional government to get their program passed.

One has to wonder if these compromising politicians ever pause long enough to ask themselves: "What will my children think of me when they read about this decision in their history books?"

Christopher H. Pyle teaches politics at Mount Holyoke College and is the author of Getting Away with Torture: Secret Government, War Crimes, and the Rule of Law (Potomac Books, Inc., June 2009)