It seems to have become a primary function of the Democratic faction of America's bipartisan ruling elite to bury the crimes of the ruling clique whenever the more exuberant Republican faction lets them get too close to the surface. Iran-Contra, Iraqgate, BCCI, the "October Surprise" deal between candidates Reagan and Bush and Iran's extremist mullahs, etc. -- all were sunk several fathoms deep by Clinton, who of course shared a top fundraiser with George H.W. Bush in 1992, and has since gone on to be warmly welcomed as a "son" by the Bush family.

Anyway, Obama is simply trying to uphold this New Democrat tradition of ass-covering for the other side. But too much of the torture cat has slipped out of the bag to shove it back in quietly. And so on Tuesday, he sought to appease the growing pressure by saying that he was open to the possibility of maybe potentially putting together some kind of commission or something somewhere down the line that could look into whether or not some of these charges might need to be, er, looked into a little further -- although he was quick to add that he was "not suggesting" that such a thing should be done. You musn't get that idea! But he was, magnanimously, willing to say that he would not immediately put the imperial kibosh on the process if and when it ever cranked up.

He also signaled the beginning of a possible "compromise" that could tamp down the heat and get torture off the table, out of the news,  and back into the shadowlands where it belongs -- and where it has been a much-used tool for our bipartisan leadership for many decades, as Bernard Chazelle usefully reminds us. And here's the beauty part: the compromise wouldn't involve anyone who actually carried out or ordered the torture! Thus the security organs and the top dogs in the Bush cabinet would remain untouched.


How to do it? Easy-peasy: grab two or three of the middlemen, the facilitators, and offer them up on the altar as sacrificial lambs. Obama said that he would not interfere if his attorney general decided to look into the possibility of perhaps taking some kind of action against the Bush Administration lawyers who wrote memos providing spurious legal "cover" for the CIA agents carrying out White House orders to torture. Memo-writers Jay Bybee, Steven Bradbury and John Yoo are being put in the frame to take the fall for the big boys and the covert operators.

Yes, that's right: Obama and his team are saying that they will not punish the torturers, and they will not punish the men who ordered the torture -- but they just might, possibly, consider punishing (in some way) those who transmitted the orders from the chief culprits to their frontline minions. The New York Times makes this clear in a passage deep in the story, where the White House tries to fudge over the apparent contradiction between Obama's new stance and his old stance which was enunciated over the weekend by his top aide, Rahm Emanuel:

    On Sunday, Rahm Emanuel, the White House chief of staff, said on the ABC News program “This Week” that “those who devised policy” also “should not be prosecuted.” But administration officials said Monday that Mr. Emanuel had meant the officials who ordered the policies carried out, not the lawyers who provided the legal rationale.

Once again, Team Obama is underscoring the fact that they will not prosecute the torturers themselves, and they will not prosecute "the officials who ordered the policies carried out." They will only consider taking some unspecified action (which could be no more than disbarment) against the lawyers who wrote down the weasel-words to "justify" the tortures which Bush and Cheney specifically wanted and ordered.

Yes, of course such lawyers should face criminal prosecution, and serve hard time upon conviction. That's not the point here. The point is the astounding position that Obama is now taking. For how can it possibly be a punishable offense to write a memo condoning torture -- but NOT a punishable offense to order the memo to be written, to order the torture to be carried out, and to actually carry it out? Yet that is precisely what the constitutional lawyer in the Oval Office is suggesting: "We will not prosecute Al Capone for ordering a hit; we will not prosecute the hitman himself. But by golly, we just might think about looking into maybe prosecuting the guy who told the hitman what Al Capone wanted done!"

We've noted often here before that the ruling elite is certainly not averse to offering up a sacrifice now and then to get sticky issues off the front burner, and give the cynical appearance of the rule of law to their reckless and lawless depredations. And if the heat gets high enough, then a deal just might be struck: We'll give you ByBee, Yoo and Bradbury, but you let the worst perps -- the higher perps -- walk. (They might even go as far as throwing the hapless Alberto Gonzales into the stewpot, if the first few nuggets don't do the trick.)

The Bush gang has done this kind of thing before, when they made Scooter Libby walk the plank to save the hide of Karl Rove and Dick Cheney for their treasonous outing of a CIA operative. (Of course, they made sure that Scooter's landing was a comfy as possible.) Just as they didn't care how many people died and suffered as a result of their Terror War policies abroad and their corporate rapine at home, they certainly don't care if a few of their ex-servants bite the dust.

We may never get to that point, of course. No doubt Obama is hoping that his suggestion of possible future action on the side issue of the lawyers will be enough to quell the furor. Or, if not, then perhaps the usual blue-ribbon, "bipartisan" commission of trusted "elders" will obfuscate and bury the issue at last. But what is most remarkable about the situation is Obama's dogged insistence that he will not prosecute the actual authors and perpetrators of these base, foul crimes, no matter what. He is certainly showing an iron-clad consistency in protecting the elite lawlessness at the core of the imperial system.
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Let's do something we rarely do around these parts. Let's do a "process story," looking at an issue from the standpoint of how it plays out in the political game. As a rule, we prefer to focus much less on political kibitzing in the imperial courts, and more on the actual products of imperial policy: i.e., corpses, chaos and corruption. But just for a moment, let's "processize" Barack Obama's bold, progressive, morality-restoring decision not to prosecute anyone at all for the filthy, KGB-derived torture system installed by the very highest officials of the Bush Administration, even as he releases memos showing clearly that practices which are high crimes under U.S. law were explicitly authorized by the White House.

(And make no mistake; Obama has not only decided to let the actual, ground-level waterboarders, wall-slammers and child torturers get off scot-free; he is also going to let the gilded creators and framers of the system live on untroubled in peace, prosperity and privilege. Obama's chief gatekeeper and hatchet man, Rahm Emanuel, made this clear over the weekend, telling Beltway waterboy George Stephanopoulos: "But those who devised the [torture] policies – [Obama] believes that they were — should not be prosecuted either.")

Leaving aside the moral perversion of this action, consider what a boneheaded move it is politically. By releasing the memos, Obama has guaranteed the enmity of many powerful factions in the security organs -- the secretive, lawless, military-covert complex that holds such vast and deadly sway over imperial affairs. Yet by promising not to prosecute any of them for their glaring misdeeds, he has merely angered and embarrassed them to no good purpose. He has allowed them to roam free around the political landscape, denouncing and deriding him at every turn in the corporate media that is only too happy to treat torturers and mass-murdering war criminals as respectable, "serious" figures in affairs of state.

They won't thank him for absolving them of their capital crimes -- any more than they will thank him and laud him for his "continuity" of their imperial aggression in the never-ending Terror War. As we have often noted here, all of the major factions in America's imperial system share the same basic values and goals: the domination of national and world affairs by a wise elite -- who are of course entitled to a lion's share of power and privilege in return for bearing the terrible burden of leadership for the ignorant herd. (For a quintessential expression of the elite's underlying philosophy, see Dostoevsky's chapter on "The Grand Inquisitor" in The Brothers Karamazov.) However, the broad agreement on general themes means that much smaller differences over details will be fought all that much more fiercely, as factions jockey for position. Hairsplitting factional differences within a general movement often produce savage energies far out of proportion to the difference itself (much like the splitting of the atom): a dynamic that Lenin, for example, utilized to such great and vicious effect throughout his career. But you can see it anywhere and everywhere -- in the office, in a family, in a church. In the case of American politics, the imperial factions viciously exploit their minute differences in order to retain -- or regain -- the top rungs of power. The fact that they all share a general belief in the system doesn't matter in the primitive, gang-style mentality that rules our politics.

And so in this regard, Obama has made an egregiously stupid mistake. He has given his imperial rivals a big stick to beat him with, while failing to strike any kind of genuine, substantial blow at them. If he had instigated investigations and prosecutions across the board, bringing the full power of the state to bear, they would have spent the next few years reeling and squealing and scrambling to save their skins. Instead, he has shown that he is unwilling -- or too weak -- to do them any real harm in the factional warfare at court. And of course he continues to advance their own policies of militarism, authoritarianism and oligarchy at home and abroad, so he is obviously no threat to them at all on that score. (He would never have reached the White House if he was.) They will merely bide their time, disgorge their bile, and use their freedom and tranquility to undermine or stifle any minor mitigations of the system's excesses that the current imperial management might attempt from time to time.

Thus even in the amoral context of political gamesmanship, Obama's policy of transparency without accountability is a maladroit botch. Much like torture itself, it is hugely self-damaging -- and doesn't even work.

II.
Of course, the political imbroglio ignores the fact that Obama is absolutely obligated under the law to investigate and prosecute credible allegations of torture by government officials. Despite the deep, wise analysis of Rahm Emanuel, prosecuting torture is not a "decision" that Obama can make or not as he sees fit. It is a legal requirement under the UN Convention Against Torture, which the United States signed, thereby making it part of binding U.S. law. Not only does Obama's failure to prosecute constitute an illegal act in itself, the very excuses he offers for his action -- that CIA operatives tortured in "good faith" because the White House told them it was OK -- are specifically rejected under the torture law, as ThinkProgress reports:

    Indeed, Article 2 of the convention on torture explains that “no exceptional circumstances whatsoever” can be used to legally justify torture. Further, the convention states that an “order from a superior officer or a public authority may not be invoked as a justification of torture.”

    [In an interview with the Austrian newspaper Der Standard, UN Special Rapporteur on Torture Professor Manfred] Nowak explained that by invoking the OLC’s memos as justification for the actions of CIA agents against terrorist suspects in U.S. custody, Obama is acting contrary to U.S. obligations under the treaty:

    STANDARD: In other words, by making this announcement, Obama has violated international law?

    NOWAK: Correct. It is a violation of binding international treaty law in this case, because this is an international law convention — and it provides unequivocally that states are not merely obligated to make torture a crime, but also to prosecute any incidents of which credible evidence can be found.

None of this comes as any surprise, of course. It was clear during the presidential campaign that candidate Obama was not going to prosecute anyone for torture. As we noted exactly one year ago, drawing on an interview that the then-candidate gave to the Philadelphia Daily News:

    Obama says that any decision to pursue "investigation" of "possibilities" of "genuine crimes" would be "an area where I would exercise judgment." He stressed the need to draw a distinction between "really dumb policies and policies that rise to the level of criminal activity." He said he would not want "my first term to be consumed by what would be perceived by Republicans as a partisan witch hunt."

    He then tied his thinking on torture, illegal wiretapping, aggressive war and all the other depredations of the Bush Regime to his stance on impeachment:

    "I often get questions about impeachment at town hall meetings. And I've often said, I do not think that would be something that would be fruitful to pursue. I think impeachment should be reserved for exceptional circumstances."

    In other words, very strong, credible, evidence-based charges of launching a criminal war of aggression based on deception is not an "exceptional circumstance" worthy of the investigative and prosecutorial process of impeachment. It might just be a "very dumb policy." Very strong, credible, evidence-based charges of knowingly, deliberately creating a regimen of systematic torture is not an "exceptional circumstance" worthy of impeachment; it might not even be worth further investigation by the Justice Department. It too could just be a "dumb policy" that we should forget about – especially if Republicans are going to make a fuss about it.

Now all of that has come to pass. The Iraq War, far from being a war crime worthy of investigation -- or even a dumb policy -- is now "an extraordinary achievement," Obama says. As for obeying the law of the land and prosecuting officials for ordering and carrying out heinous tortures, we are told to forget it and just move on. Trust me, says Obama -- even as he outstrips George Bush in making aggressive claims for authoritarian power; even as he seeks to strip helpless, nameless, renditioned captives in Afghanistan of any shred, any crumb of legal redress; even as he (and his liberal champions) promote the use of a Pentagon interrogation manual that still allows a range of practices that any decent person would consider torture; and even as he promotes some of the key CIA officials overseeing the torture program to even greater heights of power.

I don't pretend to know all the ins and outs of the political considerations behind Obama's decision to release the torture memos but protect the perpetrators. And this of course is one of the major drawbacks of any "process" piece: a lack of information on the process itself -- coupled with the unfathomability of that ever-shifting mixed bag of conscious and unconscious impulses that we call "motivation" or "intention."

But actions and end results speak far more loudly than words or intentions. Obama's illegal absolution of Bush's torturers -- and his continuation of the gulag, the Terror War and the tortures of the Pentagon manual -- are not suppositions. They are facts -- deadly, disgraceful, degrading facts. And we have seen, time and again, just what such facts produce: more suffering, more extremism, more upheaval, more corruption.

We are not done with torture in America; not by a long shot. And note that the current non-prosecution scandal -- as heinous as it is -- only deals with the tip of the iceberg: a very small CIA program for "high profile" detainees. Literally tens of thousands of other people have passed through the guts of the American gulag -- and are passing through there still, in Bagram, Baghdad, Diego Garcia, and other points known and known (including the torture chambers of client states and proxies). Nor does the controversy encompass the tortures that go on every day in America's overflowing state and federal penitentiaries, corporate prisons and country jails. As we noted in that piece last April:

    You cannot compartmentalize the evil of torture. You cannot tame it, domesticate it, separate it into neat categories. [Nor can you sanitize it and "forget" it, as Obama is now trying to do.] It is a sinister acid that eats through all walls, and spreads throughout any system or organization that practices it. You begin with "light slapping" and loud music, and you end up with waterboarding, beating, and murder. There is no exception in human history to this process.

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by Chris Floyd  

I have little to say at the moment on the details of the Bush torture memos released by the Obama Administration, beyond what I have been writing for many years now about these sickening practices, and what they say about America's bipartisan, imperial elite, which countenanced them, and often openly championed them. (I think my first piece on America's torture system was written in early spring 2002 -- a column printed in the Moscow Times, drawn from readily available stories in the mainstream press. America's willing practice of torture as an official policy has been open knowledge for almost the entire decade. But I will admit the bit about using putting insects into the torture box of a wounded, deranged captive was new.)

Barack Obama is being given great credit for releasing the memos, although as the president himself points out in his statement, their release was actually required by law. I suppose it's true that the United States government has become so degraded that we must be surprised and glad when a president actually obeys the law when it suits him, but I must say that I can't find any great cause for rejoicing -- especially as Obama's statement immediately and definitely ruled out prosecuting any of the direct perpetrators of these criminal actions.

I know that some are holding on to the hope that Obama's carefully worded statement leaves open the door to prosecuting the actual instigators of the crimes -- the top officials of the Bush Administration, including George W. Bush, Dick Cheney, Don Rumsfeld, and a host of other very senior officials and advisers; but I believe this is wishful thinking in the extreme. Look again at what Obama actually said:

    But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.


If Obama truly believes that prosecuting unknown CIA operatives would constitute some kind of disturbing disunity that the country could not bear in the present situation, then how likely is he to pursue the even more "disturbing" prospect of investigating and indicting a former president and his top officials?

And now focus closely on this astonishing phrase:

    ...we must resist the forces that divide us, and instead come together on behalf of our common future.


It is clear in the context of his statement that "the forces that would divide us" refers to those who are calling for the instigators and perpetrators to be prosecuted. They are the ones insisting on the disturbing, disunifying course of "laying blame for the past." But what, in the name of God, are America's "core values," if they do not include prosecuting people who order and commit the high crime of torture?

And cannot every criminal on the face of the earth now claim the Obama defense: "Surely, your honor, nothing will be gained by spending our time and energy laying blame for the past. So let's forget the fact that I (raped/murdered/robbed/tortured), and move forward, shall we?" For the Obama defense is nothing other than the Nuremberg defense: "I was only following orders. I was given assurance by the highest authority that my actions were legal in all respects." Is this what we have come to? Is that what now constitutes bold, progressive action? Is this, really, part of our "core values," an essential embedded component of our "national greatness?"

The more one considers Obama's remarks, the more offensive they become, and the more flagrantly they insult the intelligence. For the very memos that he has released give the lie to his own statement. Obama says it would be wrong to prosecute CIA underlings for carrying out actions that they were told were legal. Leaving aside the fact that apparently none of these great, courageous, self-sacrificing, vigilant defenders of our "core values" (as Obama lauds them) considered these tortures to be inherently immoral, but simply wanted to cover their ass legally before they wall-slammed the hell out of somebody or poured water down their throats until they began to choke and drown -- the fact is, they were told quite specifically by Bush's White House shysters that there was no guarantee that their actions would be considered legal by a court.

Glenn Greenwald points out the "smoking gun" memo that destroys Obama's entire defense -- for it is a defense -- of the CIA tortures: A signed statement by Steven Bradbury, one of the key paper-pushers in the torture regimen. Bradbury told the front-line torturers:

    Given the paucity of relevant precedent and the subjective nature of the inquiry, however, we cannot predict with confidence that a court would agree with this conclusion [i.e., the green light for heinous tortures].


To be sure, Bradbury was politically astute enough to recognize that the essential unity of America's power-structure elite means that it is almost impossible for anyone who would genuinely and actively pursue imperial crimes to ever reach the top, for he added:

    ...the question [of prosecution for the torture techniques] is unlikely to be subject to judicial inquiry.


And just as Bradbury foresaw, Obama has slammed the door shut on such judicial inquiries.

In the overblown, self-regarding prose that has become his trademark, Obama lauds himself and his administration for their fealty to the "rule of law" in releasing the memos. But of course, the "rule of law" also dictates that those who have planned, ordered and committed torture be prosecuted. The law has no special dispensation for crimes that might be "too disturbing" to prosecute. And so his ringing conclusion -- "we have taken steps to ensure that the actions described within them never take place again" -- rings completely hollow. How will failing to prosecute the perpetrators of these crimes deter any future perpetrator in high office? The latter will know that their crimes will be "too disturbing" to prosecute -- in much that same way that the biggest fraudsters on Wall Street today are "too big to fail," and must be allowed to escape the consequences of their actions.

In the end, of course, it doesn't matter. This story will be buried in a day, or less, just as all the other many, many stories about the American torture program have been buried, year after year after year. And even this story -- as morally repulsive as it is -- deals only with the tip of the iceberg of America's global gulag. It refers only the CIA's treatment of a very limited number of high-profile prisoners. Yet tens of thousands of people have passed through the belly of the gulag beast, where many have been tortured, held captive for years, even murdered. And not only is this still going on, but the Obama Administration is moving strenuously in court to drive these captives even deeper into limbo, asserting that no one who is plunged into the netherworld of America's little Gitmos in Afghanistan has the slightest right to any tincture of legal redress -- even if they had been kidnapped from the streets of some foreign city and "renditioned" to Afghanistan.

The old crimes are being written off; the new crimes keep going on.