How Obama Legitimized Torture

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Jane Mayer compares Bush’s torture memos to Obama’s targeted killing memos, and makes a critical distinction that some have tried to elide:

Clearly there are plenty of troubling questions surrounding the Obama Administration’s targeted-killing program. But, that said, are Obama’s drones comparable in terms of human-rights violations, to Bush’s Torture program?

Those who argue so miss an important distinction, one that David Cole also has brought up: torture under all our systems of law—including the laws of war—is illegal. This is true without exception, regardless of the circumstances, including national-security emergencies. Torture is also condemned by every major religion. Waterboarding was, and is, a form of torture. This has been established as far back as the Spanish Inquisition, and as recently as the Vietnam War. To argue otherwise is to legalize criminality. That was what the Bush Administration’s torture memos did. …

Obama, in contrast, has tried to bring his counterterrorism program inside the law by reasserting the criminality of torture and by trying to define which drone strikes are legal. The Obama Administration’s lawyers’ attempt to define those boundaries in their white paper isn’t prima facie scandalous, because the Constitution authorizes lethal combat, unlike torture.

She goes on to make various valid critiques of Obama’s targeted killing program, but the above distinction is worth keeping in mind during these debates. It comes up again and again, on the hard left and, of course, on the hard right. Take this sentence from Jeffrey Rosen, unwilling to accept that some of his legal friends are war criminals:

Although the Obama administration’s brief is directed at the assassination of Americans abroad, the arguments it offers could apply with equal force to the assassination of Americans at home; lawyers for the Bush administration who tried to justify lesser outrages have been pilloried for supporting torture.

But they did support torture, didn’t they? And there is no conceivable way for that to be legal, right? Part of my frustration with this debate from the get-go has been the assumption that the rule of law is something just to get around, rather than to abide by. And so torture is immediately discussed by Greater Israel fanatics like Alan Dershowitz as if it were an actual, live option in a society governed by the rule of law. It is not and for a very long time has not been a legal option, as Dershowitz well knows. And as David Luban recently noted, the crime of torture carries a 20 year prison sentence and the death penalty if the victim is tortured to death, as happened well over a dozen times under the criminal regime of Bush and Cheney. Every single war criminal – except a few grunts at the very bottom of the chain taking signals from their superiors at Abu Ghraib prison – walked free. War criminals who actually destroyed the video evidence of their torture sessions now sit on AEI panels and brag of their criminality to Beltway applause. With perjury a civil suit for sexual harassment, illegality among high oficials led to one president’s impeachment. With the criminal felony of torture, the rule of law matters not at all. We are not even allowed to see the Senate’s report on the torture program.

By allowing all CIA officials who tortured prisoners off any legal hook, and by deciding that Cheney and Bush and the architects of the plainly illegal torture program were easily integrated back into respectable American society – with the chief war criminal, Dick Cheney, still treated as an elder statesman on network television – the Obama administration may have stopped torture but they also helped legitimize it. By refusing to deal with it as a serious crime, they allowed many other Americans to take the same position.

Can you see when public approval for torture begins to rise in the graph above? After Obama and Holder told us it was no big deal, and no one should be held in the slightest way accountable.