nobody is above the law and if there are clear instances of wrongdoing, people should be prosecuted just like ordinary citizens. But generally speaking, I'm more interested in looking forward than I am in looking backwards
-- President Obama
There are various "clear instances of wrongdoing" where "people" (members of the government) will not be prosecuted "just like ordinary citizens" (us little people). The net result, in reality, is that such people are above the law. I made this point here, but was pointed to prosecutorial discretion. When the state selectively favors certain classes of people -- call it what you like -- they are in fact above the law.
Likewise, "ordinary citizens" (what the hell is that? some sort of de facto title of nobility for the rest?) are not treated this way. "Ordinary citizens," for instance, are not let off when they break the law, even if their superiors give illegal orders. And, again, since there are many "clear" cases are wrongdoing not to be addressed here (one so blatantly done that a bipartisan group of Senate leaders responded with legislation against abuse of the states secrets doctrine), qualified immunity isn't even a question. Even truly "clear" violations will result in no charge or penalty. The word comes off as b.s.
There are reasons for this. For instance, as my opposite number at the link above noted: "What we are clearly seeing here is a political decision to avoid rekindling of partisan hostilities in the hope of making progress on other fronts." But, "partisan hostilities" is not the only issue. There are also foreign policy concerns, the desire for discretion (even illegitimate in scope) and so forth. Whatever. I don't find such a heavy-handed "it's off the table" pre-emptive strike necessary all the same. Some sort of independent "truth" commission, even of an investigatory type, might work. I might think it too wimpy, but I can respect it. But, if you stack the deck like this, it will look like a sham.
Dangers still exist. First, if you don't face up to your past, including punishing wrongdoing, repetition is quite possible. Some opposed a similar theory for pardoning Nixon for such reasons. Second, it might be counterproductive as foreign policy at the very least, in part because it might be illegal. Hmm. Well, does the U.N. Convention Against Torture, which we signed and ratified, mandate otherwise? Or, does it just require reporting alleged events to the executive authority? Let's see. Glenn Greenwald today cited four relevant articles in this context: 2, 4, 7 and 15.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
When it comes to wrongdoing here, there are various means used to "prevent" such as fines, criminal penalties, and not allowing the conduct to be used in a criminal case (the Exclusionary Rule). This is not only done in "clear" (hint hint) cases. The second clause deals with the "but was right after 9/11 and ..." justifications. The third clause deals with the "just following orders" defense. How did "looking forward" work during the Iran Contra days? Should we have not charged the Nixon co-conspirators for political peace?
Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
The statute of limitations, except in select cases, should in effect be the end of the term of office of the President when the acts were committed. Sorta implied.
Article 7 [in relevant part]
1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.
The first clause does not say "for the purpose of investigation." The spirit if not the text implies prosecution, and discretion that is so across the board to make it null is simply not legitimate under a reasonable reading. A heinous dictator could similarly make mincemeat of the provision in that fashion. Likewise, "ordinary" cases of serious crimes in this country does not work in the way Obama wants these crimes to be treated. In effect, certain types of heinous crimes will (for policy reasons) be treated differently, less harshly in fact.
Article 15
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
This is not as relevant in the particular discussion at hand but overuse of the states secrets doctrine, resisting a full-fledged investigation (for fear of partisan results or whatever) and not "looking backward" in various case will inhibit determining if the statements at hand were made as a result of torture. Or, again, putting in place the measures to deal with the matter.
I understand his reasons, but he is treading on thin ice here, and I fear it has broken.