Even More Tortured Logic

Slate's Dahlia Lithwick takes a look at Obama's quiet road towards approving the Bush torture regime as American standard operating procedure.

There's been a good deal of speculation as to why the Obama administration has worked so hard to keep courts from scrutinizing Bush-era torture policies. In its pleadings, the Justice Department continues to take the position that courts shouldn't usurp executive authority over national defense. But the practical effect of this effort will be to ratify such policies and the legal architecture that supports them. As Scott Horton explains, "the path to a renewal of the criminal misconduct of the Bush years is being prepared right now. And Obama Justice Department lawyers are doing the work." Christopher Anders, ACLU senior legislative counsel, also noted in last week's conference call that because the statute of limitations for prosecuting torture is eight years, those pushing for accountability will begin to bump up against the stature for acts committed in 2002 as soon as this spring.

There's one other practical result of foreclosing every possible effort to litigate the legality of torture: The Khalid Sheikh Mohammed trial in New York will now become the only forum in which we consider it. That possibility is already being used by Dick Cheney, Rudy Giuliani, and other torture cheerleaders to discredit the New York trials. The Obama stance on torture litigation has only strengthened their argument.

(More after the jump...)

Just last week, Sean Hannity asked Cheney whether the goal of the KSM trial was, in part "to put our CIA on trial? To put you on trial? To put President Bush on trial?" Cheney responded, "It could be. It could be that Holder expects to be able to use this to go back and sort of review in depth the Bush-Cheney administration policies in terms of what we did to prevent attacks against the United States." 

Then again this morning, Hannity reprised that line of questioning in an interview with Giuliani: "Do you think as I do, and we brought this up earlier in the week with former Vice President Cheney, do you think this is about putting George Bush on trial? Putting Guantanamo Bay on trial? Putting the vice president on trial? Putting the United States on trial—enhanced interrogations?" Giuliani replied that "[t]he defense will be putting the government on trial for their unfair methods, for alleged torture. I mean, I don't think a lot of it is torture, but they will allege that it is torture. Of course, a lot of it will be exaggerated. A lot of it will be lies. A lot of it will be fictitious. And it will focus attention on what allegedly America did wrong as opposed to the horrible acts of terrorism that were perpetrated on innocent New Yorkers."

Hannity, Cheney, and Giuliani are probably right about this. The Obama administration continues to sit on the report out of the Office of Professional Responsibility on whether Bush DoJ lawyers violated their professional ethics by approving torture. It continues to block every torture suit even before it starts and to limit torture investigations and hamper the release of torture information. In doing all that it almost ensures that America will have its first opportunity to debate the legality of torture in the least attractive forum imaginable: the criminal trial of a man most of us would kind of like to torture ourselves.

The Obama administration wants to turn the page on torture. Move on. Forgive and forget. Got it. I saw Invictus too. But the torture and even murder of U.S. prisoners on our watch has already bled through onto the next page. And the page after that one. If it's true that prisoner torture claims just aren't going away, the administration should think very hard about where they ought to be litigated.

And they don't.  The Obama administration is covering their ass, plain and simple.  They're holding the option of the Jack Bauer Scenario open because they feel that at some point, this country will have to use it.  There's also the very real possibility that we only know a small percentage of the real truth behind what was done in our name, and that the truth getting out will turn into a national nightmare for Obama.

No President is ever going to go through their term without secrets that have to be kept.  That's just cold reality.  Obama is no different in that respect.  But the Obama administration feels the need to keep Bush's secrets as well, and that's a problem.