What should a president do about the crimes of his predecessor? Barack Obama had been "thinking about this for four weeks, really," says his advisor David Axelrod.
The issue seems straightforward enough. What the CIA did to prisoners on behalf of the administration of former US President George W. Bush and its appalling legal advisers during the so-called "war on terror" was torture. And torture is a serious crime, not just in the United States, but almost everywhere else in the world. The next steps seem obvious enough: indict the guilty and send them to prison, end of story. Why, as one European legal expert put it, would anyone need to think about it for four weeks?
Good old Europe. The answer that the president of the most powerful and oldest democracy on earth must provide could not only devastate him, but could tear apart that very same democracy. His courageous and yet half-hearted decision to release the previous administration's torture files, and to call the practice by its real name and to ban it -- while at the same time forbidding, or at least postponing, the punishment of the perpetrators -- puts the nation to the kind of test it has not seen since Vietnam or Watergate.
It will be a more difficult test this time. Past infractions at the highest levels of government were treated as the lapses of individuals. After the Watergate scandal, then-President Richard Nixon was promptly pardoned by his successor, Gerald Ford. Former President Bill Clinton, after perjuring himself in the Monica Lewinsky case, was dealt with in impeachment proceedings. The Vietnam War spawned a large number of half-hearted military trials of those involved in massacres committed in the name of freedom.
But Obama is faced with problems on a completely different scale. The entire Bush administration -- the attorney general, the national security adviser who went on to become secretary of state, the secretary of defense and top officials at the White House, even the former president himself, without a doubt -- all were involved. The broadest level of involvement was among second-tier officials: government lawyers who broke the law by issuing opinions on the permissibility of "alternative" interrogation methods. Finally, there was the host of torturers, whose activities on behalf of the government have been described in countless studies by American journalists and civil rights experts, as well as in reports by human rights activists.
Tacitly Participated in Torture
The crimes are not limited to the government. Lawsuits that victims of torture are now filing against the government's facilitators in private industry suggest the broad extent to which the nation is burdened with the stench of torture. Even the aircraft manufacturer Boeing has been sued for damages, because a Boeing subsidiary allegedly arranged flights to the CIA's so-called "black sites."
The grim practices were no secret. In fact, the perpetrators openly ridiculed the public's indignation. After signing a memorandum authorizing extreme interrogation techniques at Guantanamo, including forcing detainees to stand for hours on end, then-Defense Secretary Donald Rumsfeld scribbled at the bottom of the document: "I stand for 8-10 hours a day. Why is standing limited to 4 hours?"
It was not a conspiracy committed by a handful of people. Many Americans tacitly participated in the torture. After all, it was the president himself who gave the go-ahead for treating the victims in such a way, when he said: "The only thing I know for certain is that these are bad people."
The torture virus eventually infected the rest of the world, including Europe and even Germany. The double standard employed by German counterterrorism personnel when confronted with the torture practices of their US allies becomes clear in a remark Ernst Uhrlau, the head of the BND, Germany's foreign intelligence agency, made in a 2007 interview with SPIEGEL: "US officials have ( ) explained to us that the information they gained from various interrogations worldwide has been instrumental in preventing further attacks and uncovering terrorist structures. So we have benefited from all this in the sense of preventing attacks and understanding the structures of the network."
German Interior Minister Wolfgang Schäuble also found it difficult to distance himself from the use of dirty information, saying that it was perfectly legitimate for German officials to use information foreign intelligence agencies had obtained through torture -- after all, that helped prevent terror attacks. At the same time, Schäuble was apparently unwilling to consider the possibility that this might also apply to American intelligence agencies: "The president has made it clear that there is no torture. I have no reason to question that."
They are all involved. Respected human rights organizations like Human Rights Watch and Amnesty International had already released reports on the issue at the time when Schäuble feigned ignorance. Hardly anyone felt the need to point out the grave injustices that were apparently being committed in the shadows of the American war against terrorism. When Wolfgang Kaleck, a German attorney, sought criminal prosecution charges against Rumsfeld and other US officials on behalf of several plaintiffs, Germany's federal prosecutor's office rejected the suit on ludicrous grounds. One of the arguments against Kaleck's suit was that the prosecution of torture had to be treated as an internal matter for the US.
The entire world looked the other way when the United States committed a crime that the world had previously committed itself to outlaw and punish. Under the 1984 United Nations Convention against Torture, ratified by most countries in the world, each state pledges to impose drastic penalties for the cruel treatment of prisoners -- and to ensure that not only those issuing the orders, but also the torturers themselves, are brought to justice. The cruel and degrading treatment of prisoners is also banned under the Geneva Conventions. Today even US legal experts no longer question that the Geneva Conventions also apply in the war against al-Qaida and other terrorist groups. The Geneva Conventions obligate all nations to try torturers and those who issue their orders, if apprehended, or to extradite them to a country willing to do so.
The Bushies knew perfectly well why they withdrew the US signature from the International Criminal Court (ICC) statute. If the United States had subjected itself to the ICC statute, the court's unflinching prosecutor, Luis Moreno-Ocampo, would undoubtedly have petitioned for the issuance of arrest warrants against Bush and his cohorts long ago.
Obama Doesn't Know How to Deal with the Past
Germany's Code of Crimes against International Law is equally strict in its treatment of torture. Under the statute, as under similar statutes in other European countries, torture is considered an international crime which can be prosecuted even if it is committed in another country. Citing this so-called principle of "universal jurisdiction," Spanish prosecutor Baltasar Garzón has now sought the prosecution on criminal charges of six former US officials who are allegedly behind the torture scandal. And the longer Obama delays taking the -- legally unavoidable -- step of bringing charges against senior officials from the Bush administration and those who carried out the torture, the less credible becomes the reasoning of German Federal Prosecutor Monika Harms, who has argued that German courts have no business intervening as long as the American judicial system is functioning properly.
"We need to look forward," Obama said. These are the words of someone who doesn't know how to deal with the past. What happens if he does the unavoidable? An indictment against those issuing the commands and those receiving the commands, against those who participated in and those who justified the darkest chapter in the war against terror, would be an indictment of the American system. That system includes the steadfast belief that the country's elected leaders have the best interests of the nation at heart -- and that there is nothing wrong with taking action to champion those interests. In other words, if torture was committed, it was committed for America.
The notion that international treaties, and European positions on human rights, could impose limits on national sovereignty, or that a foreign power or non-American values exist that could question what happens in the United States does not fit into this system. "We don't have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that what we're after is to, you know, do something that will be just like Europe, they would have been appalled." These are the words of Supreme Court Justice Antonin Scalia, who was involved in the decision on whether to close the torture facility at Guantanamo.
A Holder of Unlimited Power
Scalia is a conservative -- as conservative as the American way of thinking. That way of thinking is still today based on the Constitution, which, in its original form, did not even include a reference to human rights and tolerated slavery. And although the US Constitution guarantees comprehensive civil rights and liberties today, such as freedom of the press, it contains a relatively weak delineation of the government's obligation to abide by the law. A legal concept like "human dignity," which makes it illegal in Germany to even threaten to use torture, is unknown in the United States. Whether a person who commits torture can in fact be tried in a court of law is left to the discretion of the federal attorneys, who are appointed by the president. They are in the hands of the president. And he has the power to pardon anyone -- including himself.
The holder of such unlimited power is incapable of distancing himself from a system of which he himself is a part. This is both a benefit and a drawback of any democratic country: Elected officials change, but the state remains the same. Unlike a change of power in a dictatorship, when the injustices committed by a previous dictator can be dealt with at one go, in a democracy a newly elected leader has to tread carefully when it comes to the legal opinions of his predecessor.
This is why Obama, a Democrat, is promising the people at the CIA that they will not be prosecuted, because when they tortured people, they did so strictly within the framework of the then-administration's interpretation of the law. This is a concept that is not entirely foreign to European legal thought. Under German criminal law, for instance, the actions committed by a person who could have assumed his behavior was permissible, are considered excusable, albeit not justified.
Nevertheless, the idea that "what was lawful then cannot be unlawful today" -- as the late Baden-Württemberg Governor Hans Filbinger, who had been a judge during the Third Reich, famously told SPIEGEL in a 1978 interview -- does not always apply. A serious injustice can still be deemed an injustice, even if the powers-that-be had declared it legal. Ironically, this famous principle, the fundamental concept of international criminal law, was first proclaimed by an American.
Parallels with Nuremberg
Robert Jackson, a man no less charismatic than Barack Obama, said it to the Germans against the backdrop of the smoldering ruins of World War II. Jackson was the chief US prosecutor at the Nuremberg trials of Nazi war criminals, and the speech he gave was so powerful that it reduced his audience to tears. Never before had an American spoken as beautifully as Jackson. "The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated," Jackson said in his opening remarks. The hearts of the disenfranchised, the demoralized, the starved and the persecuted of the Nazi regime were behind the man who brought the surviving Nazi leaders to the gallows, just as the hearts of Europeans are behind Barack Obama today.
Of course, Jackson was charged with an undertaking far less complicated than Obama's. Jackson was speaking, not at the time of a new democratically elected administration, but at the zero hour of a new German legal system. Most of all, he was not talking about America, but faraway Germany. Moreover, the wrongs committed by the Nazi regime are clearly incomparable with the human rights violations of the Bush administration.
Nevertheless, the comparison with Nuremberg is not irrelevant for many in Obama's America. Christopher Dodd, the Democratic senator from Connecticut, boldly confronted the Bush administration when he said that "for 60 years, a single word has best captured America's moral authority and commitment to justice: Nuremberg." But now, he continued, "what we risk today is that future generations will look back at this time ( ) and be able to capture the loss of America's moral authority and commitment to injustice also with a single word: Guantanamo."
Dodd is the son of one of Jackson's close associates at Nuremberg. As such, he is also familiar with a speech his father delivered to Congress, in which he quoted Justice Jackson at Nuremberg: "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow."
Unlike Obama today, Jackson really was looking forward.