What Would It Cost Obama to Prosecute the Torturers?

The title of my recent article on Obama and the torture memos was an example of hyperbolic sarcasm.  The article made it clear that the title "Obama Should Pardon the War Crimes Committed Under Bush" - was not intended as a statement of my opinion, but rather as a statement of a proposition so absurd that it highlights how ridiculous the "forgive and forget" policy is.  I predict that the "Forgive and forget" policy will prove to have the historical ridiculousness and moral vacuousness of "Don't ask, don't tell," particularly as videos become available of the actual torture.

Nonetheless, I've softened somewhat since I wrote the above piece.  If Obama tries to prosecute the liars and torturers of the Bush Adminstration, his entire first term and certainly most of the resources of the US Justice Department might be dominated by the effort.  In the end, I suspect the Bush-appointee-dominated US Supreme Court might throw out any convictions Obama's Justice Department is able to win, and in the process enshrine in our Constitutional jurisprudence some propositions that are even worse caselaw than is now on the books, e.g., the proposition that, "Torture is OK if your boss tells you to do it."  Obama has announced that he believe that, and the US Supreme Court might welll agree with him.

Unfortunately, Obama himself has added support to this view by announcing his reasoning for not prosecuting the individuals who conducted the torture.  'They were just following orders, so they should not be prosecuted.'

If we are to accept that proposition, doesn't that equally absolve those who personally placed Jews in the gas chambers during the Holocaust, since they were merely following the (morally bankrupt but then lawful) orders of Adolf Hitler?  And isn't that the example we always use to prove the proposition that "just following orders" is not an excuse for behavior that is obviously immoral and illegal?

Maybe Obama is right that he should not prosecute the Bush Administration's people, but here's a much better reason than the reason he offered:  Prosecuting the Bush Administration would make the Obama Administration's efforts "all about white men" for the next four years. Every day's newspaper stories would be about which white men would be prosecuted and when and how, with the end result most likely being that those who were convicted would get light sentences and their own talk shows on Fox News Network, as Oliver North did after he was prosecuted for the Iran Arms for Hostages Scandal.  That's not much of a legacy for Obama to seek and it won't get him reelected.  It might well be the reason he was not reelected, since a lot of the Independents whom Obama will need in 2012 might support torture now, or might have supported it when it was being carried out.  And therefore a prosecution of the torturers might equally be a prosecution of the morals of the Independents whom Obama needs to win reelection.  That's a cynical political reason why Obama might be reluctant to prosecute torturers.

However, there's another reason that is better:  The majority of Americans - comprised by the nation's women (53%), Blacks (12.8%), Latinos (15%?), gays (10%?) and the disabled (?%)- would be much better served ultimately by focusing the resources of the US Justice Department on prosecuting hate crimes, discrimination, police brutality, profiling, and other ongoing acts.  Prosecuting the white men of the Bush Administration for their crimes against Iraqis and Afghans might do nothing at all to improve the lives of the oppressed majority of the United States of America (see above), while also not immediately changing the way the US treats people overseas, since that's something Obama can do in his role as Commander in Chief, without prosecuting Bush Administration's personnel.

Meanwhile, getting bogged down in the (probably unsuccessful and fruitless) prosecutions of the torturers and their elected bosses might distract the Administration and the nation from implementing national health care, saving the national and international economies from ruin, and reducing pollution, all of which affects many millions more Americans and people in other countries in a much more immediate way.

Instead of announcing that he would not prosecute CIA and other torturers, Obama should have left the threat of investigation, indictment and prosecution for war crimes hanging over all of their heads, including the leaders within the Bush Administration who ordered the acts of torture, and Obama should use that pressure to compel Republicans to support Obama's priorities in the present. 

To vindicate the principal that torture can never be tolerated, Obama should prosecute ONE individual like Rumsfeld for war crimes and conspiracy, to make a point, while encouraging the Hague to prosecute everyone whom the Hague sees fit to prosecute.  Obama can also support new laws that make torturers and their bosses civilly liable, and then let the public in the US and overseas go after the torturers.

Ultimately, Obama needs to find a way to reassert and vindicate the rule of law, without losing reelection and/or foregoing his own present-day domestic and international programs in the process.