Of memos and morals

The four Justice Department memos released last Thursday confirmed what we already knew: Senior officials in the Bush administration authorized the use of torture as a means of extracting information from captured al-Qaida operatives.

The techniques the memos describe are clearly inhumane. They include forced nudity, sleep deprivation lasting as long as 11 consecutive days and dousing detainees with 41-degree water.

 In particular, the practice known as waterboarding, which induces the sensation of drowning, is unambiguously torturous. In the Tokyo War Crimes Trials following World War II, the United States prosecuted Japanese interrogators for waterboarding captured Americans.

The CIA used waterboarding to torture detainee Khalid Sheikh Mohammed an astounding 183 times during March 2003 alone.

Accompanying the memos’ release, President Barack Obama said that CIA operatives who followed outlined methods will not be prosecuted.

To prevent future instances of torture, we must evaluate how we hold our leaders accountable.

The Constitution recognizes that democratically elected leaders are subject to the rule of law. At the time the Constitution was written, most heads of governments were monarchs effectively beyond reproach. Fortunately, the founders chartered a different path for our democratic republic.

Article 1, Section 6, of the Constitution allows for the arrest of senators and representatives, except when they are attending a legislative session of their house. In the United States, no one’s position entitles him or her to operate without regard for law.

 Of course, it is not always easy to assign responsibility for wrongdoing. Are CIA operatives following approved – but illegal – interrogation techniques as guilty as the authorities who wrote the memo endorsing the use of torture?

The Nuremburg Principles drafted after World War II to prosecute war crimes state, “the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law.”

As the principles indicate, everyone should morally object to illegal practices, and everyone involved in crimes such as torture and genocide must be held accountable for their acts.

While not unsurprising, Obama’s minimization of CIA agents’ crimes undermines individual responsibility to resist illegal orders from superiors. At the same time, the get-out-of-jail-free card Obama issued to CIA torturers indicates a willingness to focus on the crimes’ origins.

Too frequently, low-ranking individuals are used as scapegoats for crimes that begin at the highest levels of power. Several guards were sentenced to prison after the mistreatment of prisoners at Abu Ghraib. However, the commander at Abu Ghraib indicated that the U.S. commander for Iraq knew the abuse was taking place but did not face charges.

Serious crimes committed by high-level officials should not be prosecuted lightly. To make such proceedings routine is to sanction a partisan free-for-all. With every change of administration, we could quickly see past presidents tried on trumped-up political charges.

 It is even more problematic that leaders avoid scrutinizing their predecessors’ records out of fear that they, too, could face scrutiny after leaving office. We do the world a disservice when we confuse investigating human rights violations with political retribution.