Forced to Prosecute

In a very interesting article in today's New York Times, reporter Scott Shane reports that the Obama Administration, simply by acknowledging the obvious truth that waterboarding is torture, could be forced to prosecute those responsible for torture as war criminals, despite Barack Obama and Eric Holder's protestations that they are disinclined to do so.

In the view of many historians and legal authorities, Mr. Holder was merely admitting the obvious. He was agreeing with the clear position of his boss-to-be, President-elect Barack Obama, and he was giving an answer that almost certainly was necessary to win confirmation.

Yet his statement, amounting to an admission that the United States may have committed war crimes, opens the door to an unpredictable train of legal and political consequences. It could potentially require a full-scale legal investigation, complicate prosecutions of individuals suspected of committing terrorism and mire the new administration in just the kind of backward look that Mr. Obama has said he would like to avoid.

The article goes on to point out the difficulties in prosecuting the low level people who carried out the orders.

Two obvious obstacles stand in the way of a prosecution: legal opinions from the Justice Department that declared even the harshest interrogation methods to be legal, and a provision in the Military Commissions Act of 2006 that grants strong legal protections to government employees who relied on such legal advice in counterterrorism programs.

Although the article does not say so, it seems to me that this defense should not and would not work for Bush, Cheney, Rumsfeld, Rice and Powell although it should absolve everyone below them in the chain of command. Picture Bush and Cheney being prosecuted for war crimes, claiming that as a result of legal rulings they directed the Justice Department lawyers to draw up, their orders to torture people were legal. Would such a defense have worked for the Nazis and Japanese Generals in the war crime trials following World War II?