The ACLU’s Baffling Position on Torture

For the last 13 years, the ACLU has been a steadfast proponent of justice for those who ordered and carried out torture, but now that the Senate Intelligence Committee report has been release, Executive Director Anthony Romero is suddenly calling for Obama to pardon Bush and other top officials responsible for it.

But with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

That officials at the highest levels of government authorized and ordered torture is not in dispute. Mr. Bush issued a secret order authorizing the C.I.A. to build secret prisons overseas. The C.I.A. requested authority to torture prisoners in those “black sites.” The National Security Council approved the request. And the Justice Department drafted memos providing the brutal program with a veneer of legality.

My organization and others have spent 13 years arguing for accountability for these crimes. We have called for the appointment of a special prosecutor or the establishment of a truth and reconciliation commission, or both. But those calls have gone unheeded. And now, many of those responsible for torture can’t be prosecuted because the statute of limitations has run out…

But let’s face it: Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.

Mr. Obama could pardon George J. Tenet for authorizing torture at the C.I.A.’s black sites overseas, Donald H. Rumsfeld for authorizing the use of torture at the Guantánamo Bay prison, David S. Addington, John C. Yoo and Jay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all…

The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware. Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.

If you’re scratching your head right now, you should be. The ACLU then immediately sent out an email talking about how unconscionable it would be not to hold those who ordered the torture responsible:

If your only option is pardoning the torturers, you know something is terribly wrong. As we all know, impunity for torture is indefensible. We still need the Attorney General to appoint a special prosecutor — it’s more important than ever that there is accountability for torture.

For over a decade, the American people have demanded to know about post-9/11 torture conducted in our names. Today, we finally have some answers.

The Senate just released its summary report detailing widespread and illegal CIA torture during the Bush years. Over a hundred people were abused and tortured by the CIA and its contractors, often in secret prisons, set up in countries such as Poland, Romania, and Thailand.

Now that we have additional evidence of the wrongs committed in our name, we must demand accountability. We’re calling on Attorney General Eric Holder to appoint a special prosecutor to conduct an independent investigation of the torture program…

In our system, no one should be above the law or beyond its reach, no matter how senior the official. Although some lower-level military personnel were prosecuted for their roles in the torture program, none of the officials who authorized the use of torture or oversaw its implementation have ever been charged with a crime.

Now that more secrets have finally seen the light of day, it’s time to pursue justice and accountability. As the United States has repeatedly told other nations that commit human rights violations, a nation cannot move forward without accounting for the abuses of the past. Accountability is necessary for our country to regain its damaged moral authority, and to prevent the same wrongs from being committed again.

The Senate torture report makes clear that the torture program violated the Constitution and our criminal laws. This is our opportunity to urge a full criminal investigation of all those responsible for the torture program.

Accountability for torture today is critical for stopping it tomorrow.

So they’re arguing that accountability must happen in order to stop more torture in the future while simultaneously calling for those responsible for torture to be pardoned, which means no accountability. And this argument about appointing a special prosecutor is nonsensical. A special prosecutor’s job is to prosecute, which can’t be done if the people being investigated have already been pardoned. I don’t know what the hell they’re smoking at ACLU headquarters these days, but it’s time to put down the bong.

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  • Dave Maier

    Well, they do spell out their reasoning: “If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.” You may disagree, but it’s not a head-scratcher.

    See here too: http://crookedtimber.org/2014/12/09/cheney-and-manning-a-modest-proposal-repost/

  • http://www.facebook.com/drew.vogel2 drewvogel

    Someone discussing this elsewhere pointed me to Anthony Romero’s appearance on Rachel Maddow last night. He was both clear and forceful that there should be prosecutions, but there won’t be. Pardons, which at least reaffirm that torture is illegal, are better than nothing.

  • dmcclean

    Strange that he looked up the middle initials of everyone under the sun to put on an air of formality, but Richard B. Cheney is still “Dick Cheney”.

  • gshelley

    It seems the argument is that you only pardon people who are guilty of crimes, so by pardoning, Obama would be saying “that was illegal”

    I’m not sure that is a convincing argument (or even a reasonable one), so I might be misunderstanding it.

  • DaveL

    I understand the ACLU’s argument that, if the statute of limitations prevents us from ever prosecuting them, a formal pardon would at least put it down in the official record that a crime was committed.

    However, I don’t think it’s clear that all possibility of a prosecution has actually been foreclosed upon. especially as it concerns bodies like the International Criminal Court, especially if Bush Administration officials travel outside the United States.

  • http://www.facebook.com/drew.vogel2 drewvogel

    There’s arguably even the possibility of a deterrent effect from pardons. By making the point that torture is illegal, Obama would be putting future torturers on notice that prosecution is at least an option. That’s really not much compared to the potential deterrent effect of full-blown prosecutions, but it’s better than just looking the other way.

    Still, if we’re talking about pardons, how about John Kiriakou, who is still in prison for blowing-the-whistle on torture?

  • Alverant

    I think they believe that there is ZERO chance of prosecutions for torture so this is the least awful of all the awful options.

  • D. C. Sessions

    How about a pardon for those who actually were convicted at Abu Ghraib? They didn’t do anything that lots of others did, but just had the misfortune to get caught.

    Might as well own up to our real American values, after all. Of course, hypocrisy is one of our most basic values so never mind.

  • D. C. Sessions

    However, I don’t think it’s clear that all possibility of a prosecution has actually been foreclosed upon. especially as it concerns bodies like the International Criminal Court, especially if Bush Administration officials travel outside the United States.

    That only applies to officials of countries that don’t have the international political clout to prevent it. All of the Administration’s blather about “not opening wounds” and not establishing a destructive political precedent is a nice cover, but the real policy is displayed by the fact that the Administration has spent a lot of international capital blocking other countries from pursuing their responsibilities under the Convention Against Torture that we drafted and pushed.

  • http://Reallyawakeguy.blogspot.com somnus

    I doubt even so much as the issuing of pardons, or any official Presidential acknowledgment of criminality, will occur. Ultimately, I doubt that the President even wants to suggest that future prosecution might be a possibility. Because he doesn’t want to cut *himself* off from the possibility of taking illegal action without personal consequences.

    Nixon may have shocked all of our sensibilities when he said “it’s not illegal if the President does it,” but I also think he was describing actual reality rather than what the law says.

  • DaveL

    That only applies to officials of countries that don’t have the international political clout to prevent it.

    But that only applies if the current US government uses that clout, which I admit they seem quite willing to do. The lack of political will in the US for a prosecution, however, is quite a different problem from the legal possibility of such a prosecution. Even if there were no statute of limitations, we would still have to contend with the lack of political will, just as we did from the torture program’s inception to the point the statute of limitations ran out.

  • Michael Heath

    Voice your position at this blog post at the ACLU’s website where they present this article: http://goo.gl/ICxONL. Last evening they weren’t showing any comments when I posted my position. Mine is that Mr. Romero needs to be fired. They are now posting comments.

    Ed’s blog post title:

    The ACLU’s Baffling Position on Torture

    Is this the ACLU’s position or just the Executive Director’s?

  • Michael Heath

    Ed writes:

    So they’re arguing that accountability must happen in order to stop more torture in the future while simultaneously calling for those responsible for torture to be pardoned, which means no accountability.

    I think your defectively conflating the Executive Director’s position with the ACLU, at least I hope so.

    In addition, Mr. Romero’s advocacy for a pardon wouldn’t remove the ability of some UN member nations to prosecute both the Bush Administration for torture and the Obama Administration for failing to prosecute the Bush Administration. That’s per the U.N. Treaty that Ed referenced a few days ago that President Reagan signed.

    Mr. Romero has a structurally sound argument and his motivations are worthy of respect. However I think this argument is so wrong-headed that he needs to go. Even if he was just having a bad week he needs to go. The ACLU leadership needs constant reminders that its members’ standards are not the same as those who claim fealty to the ACLU’s opponent organizations, such as conservative Christian churches and the special interest organizations that pander to that population.

  • doublereed

    It sounds more like Romero was having a moment of fatalistic pessimism.

    He’s usually pretty uplifting, but I can see how the revealing the torture report can be pretty depressing considering there probably won’t be consequences either way.

  • caseloweraz

    I can sympathize with Anthony Romero’s position. He and the ACLU have fought long and hard for accountability, only to be frustrated at every turn. I also understand that in some circumstances a blanket amnesty might be warranted. The prime example is probably the “Truth and Reconciliation” policy spearheaded by the late Nelson Mandela in South Africa.

    Yet here I would argue against pardons. There already is ample evidence that the legal justifications for torture concocted during the Bush administration were based on flawed reasoning. Therefore, despite the watered-down final version of the Obama Justice Department report, the fact that Bush administration officials broke the law seems indisputable.

    I would also ask whether previous pardons have so seared the awareness of criminal conduct into the minds of officials that future such conduct was prevented. Did the pardon of Richard Nixon prevent subsequent criminal conduct by high government officials? No; there was Iran-Contra. Did the pardon of Mark Rich by Bill Clinton prevent future financial corruption? No; there was the Jack Abramoff scandal.

    The United States is often proudly said to have a government of laws and not of men. Pardons, in my opinion, generally work to weaken that preeminence of laws over men which is the foundation of our nation.

  • caseloweraz

    Wow — almost 5,000 comments on the ACLU blog, and from what I saw (just the last six) a lot of blowback against Romero.

  • Peter the Mediocre

    Usually a pardon is a form of post conviction relief. Pardoning people before they are ever charged, much less convicted, seems wrong. If people are tried, convicted, sentenced, and then pardoned it would make the potential future jeopardy for similar acts much clearer. Standing on principle and allowing powerful people to be prosecuted, convicted, sentenced, and then serve their sentences would be better still, but I no longer expect miracles.

  • enki23

    It’s silly. President Obama has his faults, but being stupid enough to go down in history as “the only American to issue mass-pardons to admitted torturers”. So, by the “nothing is going to happen” logic, the ACLU should take a page from their own book and realize that, since neither prosecutions nor pardons have any real chance of happening, they would probably be best served by standing instead on principle and call for the one that actually *should* happen, but won’t. Rather than the second-best one that shouldn’t happen and also won’t.

  • theguy

    I suspect that if the guilty parties are pardoned, then future interrogators will be more willing to torture. They might suspect that they themselves will be able to get a pardon if they’re well-connected politically or if they know that a powerful political faction/party will fight against prosecution at every turn.

  • ZugTheMegasaurus

    It came across to me as Romero having a moment of total hopelessness. Not actually advocating for pardons, but more like, “We’ve been pushing at this for thirteen years. People said we were fabricating it, exaggerating it, and making something out of nothing. Now we have all the details right there in black and white. And it’s not going to change a damn thing.”

    And he’s right. Nobody who denied torture was happening (or that if it was, it wasn’t a bad thing) is going to change their tune. The people who claimed it was anti-American to even investigate torture claims is going to change their mind. Nobody held those views for any sound reason. They held them because they wanted to be a proud, flag-waving patriot and that meant hurting Middle Eastern people.

    You can only go on so long before you can’t deny the fact you’ve been smashing your face against a brick wall. I think that was Romero’s moment.

  • ZugTheMegasaurus

    Sigh. The “is” that doesn’t make sense in my previous comment should be “aren’t.”

  • abb3w

    One angle that seems to have been missed — accepting a pardon is usually taken as an admission of guilt; and as DaveL alluded, torture is a crime of universal jurisdiction, and a presidential pardon only protects from US Federal prosecution. (Did any US states have local statutes against torture? Could one of them try such a person under the theory of universal jurisdiction? I bet a law class could have fun arguing that one, if so….)

  • Pierce R. Butler

    Anthony Romero has been hanging around with DC Democrats for much too long.

  • Michael Heath

    caseloweraz writes:

    Wow — almost 5,000 comments on the ACLU blog, and from what I saw (just the last six) a lot of blowback against Romero.

    I don’t think there are thousands of comments in that blog post thread, but instead a total of six comments that are published.

    Last evening when I posted my comment it wasn’t published until this morning; last night there were zero comments posted when I wrote mine, in spite of the fact the article was published in the NYTs and blogged about by Andrew Sullivan. Perhaps there are nearly five thousand comments in all this site’s blog posts.

  • caseloweraz

    Yes, I’ve come ’round to that conclusion after trying several times to see the earlier comments. They might be numbering all the comments on their site sequentially, or they might for some reason start numbering each thread from some random value.

  • comfychair

    A pardon is not the same beast as blanket amnesty – don’t talk about one while arguing against the other.

  • comfychair

    Amnesty… immunity? I think I meant immunity. Anyway, as mentioned, a pardon at least involves some form of acknowledgement of guilt. It’s not the same as a decree that nobody should be punished because nobody did anything wrong.

  • lofgren

    It appears to me that Romero is simply laying out the options in order of his preference: prosecutions, formal pardons, tacit pardons. Having a second preference is not the same as advocacy. This is just a blog post, not a formal position paper.

  • caseloweraz

    Comfychair: A pardon is not the same beast as blanket amnesty — don’t talk about one while arguing against the other.

    AMNESTY (Webster’s):

    * “a decision that a group of people will not be punished or that a group of prisoners will be allowed to go free”

    * “the act of an authority (as a government) by which pardon is granted to a large group of individuals”

    They go on to quote the Concise Encyclopedia: “In criminal law, a sovereign act of oblivion or forgetfulness (from Greek amnestia, “forgetfulness”) granted by a government, especially to a group of persons who are guilty of (usually political) crimes in the past. It is often conditional upon the group’s return to obedience and duty within a prescribed period. See also pardon.”

    Other dictionaries give similar definitions. I didn’t find any that says it includes forgiveness or absolution. Practical usages (as in South Africa) may, but amnesty (with guilt attached) sounds very close to what Romero was proposing.