Now that we face the prospect of having Gina Haspel, who is undeniably a war criminal for her use of torture at a CIA dark site in Thailand under the UN Convention Against Torture, running the CIA, it’s worth noting that President Obama shares the blame for that happening.
Why do I say that? Because he is the one who refused to prosecute those who ordered and carried out torture during the Bush years. The UN Convention Against Torture requires every country to prosecute anyone engaged in torture at any level, and it takes this so seriously that it allows for universal jurisdiction, which means any country has the jurisdiction to prosecute anyone for torture from any country at any time. Adam Serwer looks back on Obama’s total inaction on the matter:
Before Obama even took office, he announced his belief that “we need to look forward as opposed to looking backwards” on torture. That set the standard for Obama’s tenure, as all avenues of accountability for Bush-era torture were curtailed. A Justice Department inquiry into interrogators who broke even the “acceptable torture” guidelines ended with no charges. Civil lawsuits from former detainees were blocked when the Obama-era Justice Department invoked the state secrets doctrine. An internal Justice Department review of the torture memo’s authors concluded they had not committed professional misconduct when they worked backwards to justify the Bush administration’s use of torture in defiance of laws against it. Even a proposal for a South African-style “truth and reconciliation” commission was rejected. All avenues for any form of accountability for torture—criminal, civil, even professional—were blocked by Obama-era officials. Even an episode in which the CIA spied on Senate staff in an effort to stonewall an inquiry that ultimately found CIA torture ineffective, and then lied about having done so, ended with little more than an apology…Obama’s decision must have seemed like the obvious one at the time. Picking a fight with the intelligence community in the middle of a recession, in which he needed congressional support to rescue the American economy, install a new financial regulatory regime, and pass health-care reform, probably seemed like a bad idea. But it has had tremendous consequences. And President Trump has shown no such squeamishness for picking messy political fights with intelligence agencies or law enforcement should they threaten his prerogatives, an asymmetry that can only warp the political incentives of entities whose authority must never be wielded in a partisan fashion.
There is no reason for powerful people to follow the rules if they know they cannot and will not suffer any consequences for breaking them. A system in which only the weak are punished is not a two-tiered system of justice, but one in which justice cannot be said to meaningfully exist.
In a country where a CIA official like Haspel can destroy evidence in order to obstruct a federal investigation, and not only escape prosecution but rise to become the head of the agency, it is no wonder that the president and his allies behave as though the possibility of the law catching up to them is not merely remote, but a kind of absurdity.
I criticized each of those decisions not to act throughout the first few years of the Obama administration and the response was often to point out that Obama had made a pragmatic political decision that to prosecute those who had carried out torture would distract attention away from issues like health care reform and make it less likely that he could get his agenda through Congress. And that may well be true. But sometimes the ends simply do not justify the means, and when we’re talking about a fundamental moral issue like torture, upholding the rule of law “trumps” partisan or political considerations. Obama failed and we may well end up with Haspel running the CIA when she ought to be in prison.