It had started on a positive note, with the news that prosecutors in Spain would likely issue indictments against Alberto Gonzales and five other high-ranking Bush administration officials for sanctioning the torture of terror suspects.
The hope for justice that came with that news quickly turned to disappointment, however, when Spain's attorney general rejected the move. AG Candido Conde-Pumpido said the case had "no merit" since no members of Bush's torture team were present when the alleged abuses took place.
Meanwhile, back here in the U.S., the Bush administration took a step forward towards transparency and open government by releasing four of the Bush administration's secret memos that had been used to justify torture.
At the same time, however, Obama managed to disappoint when he announced that his administration would not prosecute the CIA operatives who engaged in torture. The reason, according to U.S. Attorney General Eric Holder, is that it "would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." In other words, they were just following orders. They were playing by the rules, however misguided those rules might have been.
So here we have it:
Spain might not prosecute the "Bush Six" because they didn't participate in the torture.
And Obama will not prosecute those who did.
So which approach is correct? In my opinion, neither.
All of them -- all those who sanctioned the torture and all those who carried it out -- are responsible for the torture that has violated U.S. and international law and severely damaged our reputation in the world.
The Justice Department officials who stretched the law in order to justify the unjustifiable are to blame and should be held accountable. They knew that they had stretched it too far. In a 40-page memo dated May 30, 2005, Acting Assistant Attorney General Steven Bradbury actually admitted that they "cannot predict with confidence whether a Court would agree with our conclusions."
The CIA operatives and any others who participated in the torture are also to blame and should be held accountable. The excuse that they were "just following orders" doesn't cut it. If your boss ordered you to rob a bank, would you do it?
The CIA knew that the methods they were using were wrong. (Remember all those evidential tapes that they destroyed?)
Still, Obama wants to let them off the hook, saying "nothing will be gained by spending our time and energy laying blame for the past."
Then why do we bother to have laws at all, Mr. President, if you believe that "nothing will be gained by spending our time and energy laying blame" for certain crimes?
As ACLU Executive Director Anthony Romero noted, "We can't just say 'Tsk. Tsk. That should never have happened' and walk away. We must demonstrate our commitment to the rule of law and demand accountability if our country is going to move forward."
Torture isn't a little white lie or an unkept campaign promise. Torture is a serious crime under U.S. and international law. The use of torture violates the U.S. Constitution, Amendment 8; the Universal Declaration of Human Rights, Article 5; the Third Geneva Convention; the UN Torture Convention; and more.
Therefore, the U.S. is legally obligated to bring those suspected of torture to trial.
Instead, by granting immunity to the torturers, the Obama administration is essentially protecting war criminals.
This is no way to repair our reputation in the world.
And this is no way to lead.
America is not above the law.