Does President Obama Have The Right To Stop Torture Prosecutions?

By Big Tent Democrat, Section Obama Administration
Posted on Tue Apr 21, 2009 at 08:35:50 AM EST
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Many are outraged at the very thought that Rep. Jane Harman may have interceded with the Justice Department regarding the AIPAC prosecutions (Harman has denied the allegation and no one has stated that she did. To the contrary, the NYTimes reports that "David Szady, the Federal Bureau of Investigation’s former top counterintelligence official who ran the investigation of Mr. Rosen and Mr. Weissman, said in an interview Monday that he was confident Ms. Harman had never intervened."), but when it comes to the intercession of President Obama regarding torture prosecutions, many of these same people are quiet as church mice. Why is it okay for, as Glenn Greenwald states it, to interfere with "the very important (and overlooked) duty of the responsibilities of the Attorney General to make decisions about prosecutions free and independent of the political desires of the President" but no okay for a congressperson to ask for clemency?

More . . .

Let's face it - some people simply will not criticize Obama. Me, I am not upset with the President interceding in the POLICY decisions of the Justice Department, be it by ordering that they waive the state secret privilege in the illegal wiretapping cases or foregoing torture prosecutions. I may disagree or agree with the decisions, but I do not see the act as extralegal. I think Greenwald is wrong on this point and indeed, somewhat ~~hypocritical~~ inconsistent (Glenn and I had an extensive e-mail exchange on the subject, and I think the better word to describe my view on this is "inconsistent." Glenn takes the view that policy on prosecutions should be done independently by the Attorney General. I disagree.) Glenn is quite critical of Obama when it comes to the Justice Department's decisions on the state secret privilege. But then there is a lot of hypocrisy going around these days.

Speaking for me only

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Does President Obama Have The Right To Stop Torture Prosecutions? | 27 comments (27 topical)

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The last (5.00 / 2) (#5)
by Ga6thDem on Tue Apr 21, 2009 at 08:56:57 AM EST

few months, generally speaking, have been nothing but one excuse after another. All I hear is there isn't support for X. Well, there isn't support for Geither's plan and Obama is going full steam ahead with that one. This is all beginning to sound like a repeat of the Bush administration.

I hear what you are saying (none / 0) (#8)
by Militarytracy on Tue Apr 21, 2009 at 09:04:25 AM EST

but I can't agree and that has to do with my place in this life. We are drawing down in Iraq, you can literally feel it in real life terms within the military as even the resources of focus and mission planning shift completely away from "stay the fricken course". Bush was such a loser from hell. I do notice Bushesque things about the Obama presidency thusfar though, but I can't call Obama a loser from hell :).


we have some on the left calling him Bush (5.00 / 1) (#10)
by Capt Howdy on Tue Apr 21, 2009 at 09:08:12 AM EST

and some on the right calling him Carter. both are equally wrong. he may be many things but he is no Bush and certainly no Carter.


: Well (5.00 / 2) (#12)
by Ga6thDem on Tue Apr 21, 2009 at 09:21:07 AM EST

there's some similarities to both of them.

I'm (none / 0) (#11)
by Ga6thDem on Tue Apr 21, 2009 at 09:19:47 AM EST

talking more about the behavior than the policy. Obama does share some policy beliefs with Bush as evidenced by the Geither Plan but the behavior is eerily similar.

I can sympathize with what you're saying w/r/t the military. I had a family member who got out of service due to Iraq.


I guess I'm not sure I understand how (5.00 / 1) (#13)
by Anne on Tue Apr 21, 2009 at 09:22:38 AM EST

one can disagree with Glenn:

It's worth remembering that the decision of whether to prosecute is not Obama's to make. We are supposed to have an independent Justice Department which makes descisions about prosecutions free of the type of political influence Obama and Rahm Emanuel seem eager to exert on the decision-making process. That, one might recall, was the crux of the various Alberto Gonzales scandals -- that he was making prosecution decisions based on the dictates and interests of the White House rather than apolitical legal considerations. One could actually argue that Obama's opinion about who should and should not be prosecuted is entirely irrelevant. The Attorney General has the independent obligation to make those decisions without regard to the President's political wishes. Either way, at this point, given how aggressive Obama has become about demanding that there be no prosecutions, it seems clear that only a Special Prosecutor can discharge that duty.

I don't think the executive branch has any business telling the judicial branch whom to prosecute; we have laws, we are signatories to international treaties and I don't think there's an escape clause in our domestic law or in international law that says that if the president decrees it, a law becomes null and void.

The judicial branch (none / 0) (#15)
by Big Tent Democrat on Tue Apr 21, 2009 at 09:24:07 AM EST

does not prosecute, the Executive Branch prosecutes in courts of law, i.e, the judicial branch.

The Justice Department is in the Executive Branch. To wit, Obama is in charge of it.

Do you see now why I disagree with Glenn?


Okay, I'm officially stupid, I guess - (5.00 / 1) (#16)
by Anne on Tue Apr 21, 2009 at 09:36:50 AM EST

but it does make one wonder why people were so up in arms when it appeared that the DOJ under Bush was just a highly politicized arm of the Oval Office, selectively prosecuting and selectively enforcing laws at the behest of the president. Why weren't we all saying, "oh, sure - they can do that, no prob."

I guess I offically also just don't get it - and I also don't like it. I don't like seeing any president making decisions like this one.


: I think you explain it yourself (none / 0) (#17)
by Big Tent Democrat on Tue Apr 21, 2009 at 09:38:56 AM EST

A policy of prosecuting Democratic politicians froma politiczed GOP DOJ is quite worth protesting about.
Firing US Attorneys who do not go along is worth protesting.
Obama's policy on torture prosecutions is not comparable imo.

: The question was never (none / 0) (#20)
by gyrfalcon on Tue Apr 21, 2009 at 10:23:42 AM EST

whether they could do it but whether it was right or wrong for them to do it.
I'm totally with BTD on this. Have we ever in U.S. history had an attorney general who was actually functionally independent of the president? I can't think of one in my lifetime, except for perhaps at times Janet Reno or way back maybe Ramsey Clark, just by virtue of personality and the politics of the issue involved.

Then there is only impeachment (none / 0) (#26)
by herb the verb on Tue Apr 21, 2009 at 04:39:15 PM EST

Your view leads inexorably to an Executive branch which is de facto above the law. If a president directs his AG to not prosecute anyone in his administration for crimes as a policy matter, the only way to prosecute is for the congress to impeach the president (and then the vice-president) until an administration is in place willing to prosecute, "as a policy matter".

This is not a hypothetical, we just lived through it.


MO for what its worth (none / 0) (#1)
by Capt Howdy on Tue Apr 21, 2009 at 08:43:26 AM EST

is that he wants to set a very clear distinction between himself and the last president on "delegating" responsibility. it seems to me he want everyone to know, agree with him or not, he is the one making the decisions.

also, he can probably delay or even stop action from the Justice department but he cant stop the congress. they can do whatever they want.

truth and reconciliation commission now.

Investigations now. (5.00 / 3) (#2)
by Fabian on Tue Apr 21, 2009 at 08:48:06 AM EST

I don't want some oh-so-respectable and oh-so-predictable commission. I know that their report will say:

"We found thus and so and recommend more, better oversight in the future to prevent these abuses.".

Then there is a polite round of applause, a lot of self congratulation on a job well done and perhaps, maybe, some cosmetic changes.

I'd rather save the money for doing something that achieves real, measurable results.


I disagree (none / 0) (#4)
by Capt Howdy on Tue Apr 21, 2009 at 08:55:59 AM EST

not only for political reasons but I actually think that a slow, quite, methodical compiling of facts and evidence could, when released, grab the imagination of the public far more powerfully than an Independent Prosecutor style investigation.

in fact an effective TACC could spawn one of those. but I bleieve to start with one would be to take a giant step toward poisoning the well of public opinion and destroying the biggest ace in the hole Obama or any democrat has ever had, unwavering support of the MSM.


: um, I guess that would be TARC (none / 0) (#7)
by Capt Howdy on Tue Apr 21, 2009 at 09:03:06 AM EST

where would we be without anagrams?

Sitting here next to my year old (none / 0) (#3)
by Militarytracy on Tue Apr 21, 2009 at 08:54:05 AM EST

granddaughter and asking self if it is a good idea to have ANY president hold such sway over when the rule of law applies and when it doesn't apply just cuz he says so. I'm surprised by your neutrality, but the implications of also going forward don't elude me either. There would be numerous meltdowns of members of our population. Is that cost worth it? What would Alfonsin have done?

I am not neutral (5.00 / 1) (#6)
by Big Tent Democrat on Tue Apr 21, 2009 at 09:02:37 AM EST

I am affirmatively state to you that the President has the right to ditate policy to tyhe Justice Department.

Consider your reaction to the President deciding the following - from now on, the Justice Department will not waste more time and resources on prosecuting low level drug offenders.

This would not be interceding in a specific decision to prosecute, but a whole class of prosecutions.

I think the President is perfectly within his rights to act in this manner and your reaction to such action should be based on your views ofd the POLICY the President is pursuing, not his exercise of power.

In some ways, this was what folks missed with regard to Bush - the problem with Bush for the most part on policy was not that he was acting but what policy he was pursuing.

Of course, when he subeverted the Consitution and violated laws, that was when he passed over to criminality, impeachable offenses and war crimes.

But my objections to Bush came in two forms - his policies (Iraq, tax cuts, etc.) and his violations of the Constitution, the law and the laws of war.

Only one type of these actions constituted impeachable offenses.


Well geez....fine (none / 0) (#9)
by Militarytracy on Tue Apr 21, 2009 at 09:07:52 AM EST

call me on my chit then cuz I am sick and tired of the war on drugs and I'm fine if he calls it off :) I want the rule of law observed when I want it observed okay? Not when he wants it observed


Heh (5.00 / 1) (#14)
by Big Tent Democrat on Tue Apr 21, 2009 at 09:22:42 AM EST

But you miss my point. In both cases the President would be following the rule of law.

Some would argue that dictating prosecutorial priorities is equivalent to not "faithfully executing the laws." I think that is wrong. As the Chief Magistrate, the President is empowered to exercise magisterial discretion.

He can choose to both to direct his Justice Dep't to not pursue torture prosecutions as a policy matter and to not pursue prosecutions of low level drug offenders as a policy matter.

What he can not do is order his Administration to violate the laws and the Constitution. Bush did. Obama has not so far as we know.

Now, there is a debate about whether international law compels investigation and prosecution of torture offenses. I am not of one mind on that point but think that the more important point is there is not enforcement mechanism anyway, other than the political process. to wit, whether international law compels suich prosecutions is a point of political pressure on the President, not one of law per se.


: Sigh....sometimes the only cure (none / 0) (#24)
by Militarytracy on Tue Apr 21, 2009 at 02:06:12 PM EST

for terrible laws is a change of leadership that brings its policy of what will be prosecuted. What I don't like about this though is when Conservatives are running the show and what they focus on prosecuting or turning a blind eye to.

I think (none / 0) (#18)
by Steve M on Tue Apr 21, 2009 at 09:39:47 AM EST

that the torture issue is so politically charged that both the President and the Attorney General need to be on board. The President to determine that it's in the country's best interests to pursue this category of offenders, the Attorney General to conclude that specific individuals appear to have committed a crime based upon his investigation.

I can't imagine the President telling the Attorney General, "I order you to indict this person, I don't care what the facts show," but I also can't fathom a scenario where the President tries to duck responsibility for a decision as consequential as prosecuting senior officials from the prior administration.

I certainly think it would be singularly inappropriate for the President to try and outsource his duty to a special prosecutor. Appointing someone "independent," I don't care if it's Patrick Fitzgerald, is not going to make the political element simply disappear. The President should make the call, and if some people want to believe that it's purely political, let them believe it. It's not like those people would be saying "oh well, I guess it's not political since Obama isn't involved" if a special prosecutor made the decisions.

Well, but by emphasizing (none / 0) (#19)
by dk on Tue Apr 21, 2009 at 09:52:12 AM EST

that how politicially charged the torture issue is, you seem to be conceding that the President's decision, by definition, is at least significantly political. I guess my question, then, would be, does the President's decision need to be "purely political" to be problematic? Or is there some precise point on the scale between significantly political and purely political where you would draw the line?

I tend to agree with your point about an independent prosecutor, but I guess I personally would feel more ok with all of this if 1) Congress stepped up and held its own hearings to get more information out into the public and 2) I had more confidence that Holder had made an independent assessment based on the law (I'm not saying he didn't, but I would still want to see more transparency as to Holder's thought process).


Realistically (none / 0) (#21)
by gyrfalcon on Tue Apr 21, 2009 at 10:32:10 AM EST

you're never going to get "transparency" on the thought processes of an attorney general that lead him/her to take a different position from the president on an issue of any importance, unless it's right after he/she leaves office, or right before.

Whether to pursue these prosecutions is absolutely a political/policy decision in the broad sense (ie, not narrow partisan sense a la Bush/Gonzales), and I'm not sure Holder's thought processes on that have any significance anyway. His role is to tell the president whether they could be prosecuted, on what basis they could be prosecuted and whether prosecution would be likely to be successful.

It's the president's job to decide whether to prosecute based on his assessment of the wide policy/political effects of such prosecutions. Holder's opinion on that would be mildly interesting, but not significant.


Well, I don't really disagree (none / 0) (#22)
by dk on Tue Apr 21, 2009 at 10:47:57 AM EST

with many of your points, but I'm not on board with your conclusion that knowing Holder's opinions would be insignificant.

Precisely for a Presidential decision as politically charged as this one, I think transparency is important. If they can release the torture memos, they can also release information on the decisionmaking process regarding whether there would be prosecutions. For example, knowing what Holder recommended to Obama would help us know whether Obama's publicly stated reasons for deciding not to prosecute were wholly truthful and complete.


: Yes, it would (none / 0) (#23)
by gyrfalcon on Tue Apr 21, 2009 at 11:58:07 AM EST

but my point is it's never going to happen in the way you want, never has done, never will be. Knowing Holder's opinion of the politics of it would, I insist, be insignificant because he isn't even a major policy/politics adviser to the president. And in any case, he's not going to outline his disagreements with the president publicly on an important issue like this. Not gah happen.

The President's right is not the question . . . (none / 0) (#25)
by Doc Rock on Tue Apr 21, 2009 at 03:43:55 PM EST

. . . he has the authority, but should he, morally? The answer to that falls to the judgment of the American public. I think the authors should be prosecuted and the most senior managers like Hayden & Goss should be investigated, too.

It's Obama's call to end this (none / 0) (#27)
by diogenes on Tue Apr 21, 2009 at 08:21:51 PM EST

He can end this tomorrow by pardoning everyone a la Gerald Ford. Or he can let it fester for a year or two, only to end probably in a couple of perjury traps (a la Libby but no Rove or Cheney in the Plame case). What is the crime in writing an opinion, anyway? You'd have to prosecute those who did the torture or figure out who gave the order.
Is a CIA witchhunt going to inspire North Korea or Iran to respect Obama and slow down their nuke marches? Will Castro also appoint a truth commission in Cuba? Will the leader of the Sudan look at the prosecution of the CIA as an inspiration to stop genocide or will he sense a weakness in Obama and be further emboldened?