Mr. President You Can’t Have It Both Ways On Torture!

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Dear President Obama;

I watched your press conference last night. I was happy with the tone that you set about the N1H1 ’09 virus and thought you gave quite good advice. However that is not why I am writing you today. Mr. President I continue to be dismayed with your efforts to straddle the line on the issue of the Bush administrations apparent State Sponsored Torture program.  

I give you full credit, Mr. President, for saying that waterboarding is torture. This really is settled law, all spurious memos from the Bush OLC to the contrary aside. However that is the problem, sir. Torture is against the law in the United States. The US Code, Title 18, Part I, Chapter 113C, 234A states:

(a) Offense.- Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.- There is jurisdiction over the activity prohibited in subsection (a) if-

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy.- A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

Mr. President, you are a lawyer and a politician, which means you are very skilled at seeing the logical conclusions and next steps in a chain of reasoning. However I will point out to you that if you believe that waterboarding is indeed torture (and I have no reason to doubt you on this) then you must also find there needs to be an investigation of it. It is a crime, and crimes which are clearly known publically must be investigated. In short Mr. President, you can not have it both ways. Either the actions of the Bush Administration were not torture, in which case there is no need for a criminal investigation or they were and we are required by our laws and treaty obligations to investigate them.

I understand there might be some need for the leader of the nation to walk a fine line about making a statement which could be viewed as a determination of guilt or innocence. There is something to be said for an abundance of caution in this area. However the line from your administration that you want to move forward does nothing to neither bolster the rule of law nor bring this matter to a close.

You do, however have a way out. Mr. President, you can support the call from Rep. Conyers for the appointment of a Special Counsel to investigate this entire matter. This has several benefits; first you will be able to say, truthfully, that you do not want to comment on the investigation so as not to influence it. This is the proper position for a President to take.

Second, you would be putting your statement labeling waterboarding torture into action. This would make it clear the United States is recommitting to its own principal of the rule of law. Crimes when known are investigated and the investigation goes where the evidence leads it. The fact this investigation might include the former President and Vice President is actually a benefit in proving the time tested cliché “No one is above the law”.

Finally by adding you voice to Rep. Conyers call you would let Attorney General Holder know, in no uncertain terms, that while you might have political problems from such an investigation, the final choice has been and must be his. General Holder is the final say in law enforcement in this nation, but because of the abuses of the last 8 years there is grave doubt about this in minds of most citizens. By putting this kind of decision back in the DOJ you will make it clear the days of a politicized Justice Department are over.

Mr. President, you know this is the right thing to do. I do not have to tell you the right thing is rarely the easy thing. I know you would rather pick up plutonium with your bare hands than set off the fire storm from the Republicans over this issue, but the fact is you don’t have a lot of time before that storm comes in any case. In Spain the same Judge who pursued Augusto Penuche for torture is at this very moment starting the process of investigating Senior Bush administration officials. If a NATO ally indicts these officials then the very divisive fight you are trying to avoid will be started.

Any good politician knows when the people are headed in one direction it is best to get in front of it and call it a parade. The recent Gallop poll showed that more than 2/3 of our citizens believe, as you do, that waterboarding is torture. Further more than 1/2 want investigations of the actions taken in their name that are torture. The people are moving in a clear direction. This is the time to get out in front of this issue, in ways that are in line with the rule of law. While you will surely lose some support from those on the right, the increase in support and loyalty from those who take the rule of law as the paramount issue facing our nation would more than off-set this.  

Mr. President, please stop trying to walk an imaginary thin line. Stand up for the ideals of the nation you lead and do the right thing in regards to torture. Once you do, it will be out of your hands and into the legal structure of our nation, where it belongs. Sir, I have faith in you, please redeem that faith and support the appointment of a Special Counsel to investigate the actions of the Bush administration.


Torture statute provided by the Cornell Law School Legal Information Institute.

Cross posted at Square State


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    • Arctor on April 30, 2009 at 8:12 pm

    was a bit more than disappointing, it was infuriating. For Obama to muddy the waters about the efficacy of torture, despite all the balanced aspects that I’m sure his advisers and he thought would neatly express the issue, was very disturbing. So according to Obama there are better but not necessarily quicker ways to get the same information? Pleez!

    Let’s be blunt here, the President takes an oath to see that the laws are faithfully executed. Right, he should not interfere, he need say no more, he has said too much already. He has publicly and clearly communicated to General Holder that he does not wish to see prosecutions; how can his AG not be influenced by that already?

    Obama does not believe that military or intelligence personnel should be held accountable for their actions as long as they were following orders? When does someone stop patronizing and diminishing the professional and moral standards of those same personnel by assuming they were all fine with engaging in torture as long as they had orders? I’m sure there were many innocent soldiers and intell officers who were sickened to be made tools of this illegal policy. Obama is not defending the troops, he’s insulting them!

    And finally, when does it dawn on Obama and Judge Bybee, who continues to assert that this is all legal, that by allowing this to pass with a wink and a tongue cluck only communicates to our enemies that our soldiers can be treated the same way: legal for us, Judge Bybee? Then legal for them, no doubt?

    In conclusion and for Judge Bybee’s (and hopefully not Obama’s) benefit let me quote Albert Camus’ lead paragraph from The Rebel:

    “There are crimes of passion and crimes of logic. The boundary between them is not clearly defined. But the Penal Code makes the convenient distinction of premeditation. We are living in the era of premeditation and the perfect crime. our criminals are no longer helpless children who could plead love as their excuse. On the contrary, they are adults and they have a perfect alibi: philosophy, which can be used for any purpose—even for transforming murderers into judges.”

  1. this?

  2. The Knucklehead noticed something the dog said, regarding getting in front & calling it a parade. He noticed, at a young age, that when a parade went by, many people stopped & craned their heads to see & hear what the hollaballu was all about.

    The Knucklehead also noticed that they would call their friends, who may not have noticed, or heard, to come quickly to watch this gathering, adding more participants on the sidelines. He`s noticed also that some joined in on the sides of the parade, a few younger ones would get behind the leader, unseen, & imitate, seemingly in aspiration to lead one day, the official leader of the parade.

    The knucklehead has always stated that like-minded people can attract more to join the parade, not as followers, but as participants, & has based that statement on noticing that there were always more people in the parade as it wound down, than there was at the beginning.

    The Knucklehead believes that since there are enough participants to have a parade, a great band of musicians who know the tune,( hell they wrote a lot of the music), & such a great theme for the parade, the leader should give the signal to strike up the band, & march off to justice, those who would have tried to keep the people out of step by breaking the instruments of the law.

  3. I have been thinking much on this.  We all know that any hesitation to enforce US and international law by the Obama administration WILL result in a diminished ability to prosecute any future abuses.  I know this is not the Orange so everyone here knows that there will be future conservative administrations.  What we aren’t thinking about is that it will also hinder the abilities of future progressive administrations to act decisively against gross abuses of power.  If the progressive movement surrenders on an issue so fundamental to our fundamentals now while the opposition party is in the nadir or their existence…….Well, what are we going to do when George Bush 2 or worse comes along?

    • RUKind on May 1, 2009 at 6:08 am

    Let’s face it, it can’t hurt their image any further and it does speak more to their core values. David Vitter will announce the new brand image while wearing patent leather jackboots and a custom studded black lizard-skin Depends cover with a rhinestone encrusted image of the South WTC falling mid-way between his legs.

    The new NAZI party will be offering a full line of nipple rings and body piercing accessories to support individual splinter factions. will participate ass will the Teabaggers Guild. Brazilian scrotum-waxing demonstrations will be ongoing through the day.

    In other words, nothing new here.

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