Obama's Decision Point

The Spanish Attorney General has recommended that the court drop its case against six Bush-era officials for their role in authorizing and directing torture at Guantanamo Bay, for one main reason:

If alleged torture at Guantanamo is going to be investigated at all, that should be done first in the United States, so that the former American officials would have a chance to defend themselves there, Conde-Pumpido added, according to his press chief, Fernando Noya.

It's entirely possible that the case will go forward (prosecutors objected to this court's investigation of Augusto Pinochet, but it went ahead anyway), but the Attorney General makes a salient point. American prosecutors should investigate American crimes, and violations of treaties to which America is a signatory. And today, President Obama can show what side he lines up on with respect to that question.

Today is the most significant test yet determining the sincerity of Barack Obama's commitment to restore the Constitution, transparency and the rule of law. After seeking and obtaining multiple extensions of the deadline, today is the final deadline for the Obama DOJ to respond to the ACLU's FOIA demand for the release of four key Bush DOJ memos which authorized specific torture techniques that have long been punished (including by the U.S.) as war crimes. Today, Obama will either (a) disclose these documents to the public or (b) continue to suppress them -- either by claiming the right to keep them concealed entirely or, more likely, redacting the most significant parts before releasing them.

The most recent information on this suggests that Obama was siding with the CIA to redact information from the memos revealing the most graphic tactics used in interrogation. In particular, there is one technique whose release concerns the Administration.

Among the details in the still-classified memos is approval for a technique in which a prisoner's head could be struck against a wall as long as the head was being held and the force of the blow was controlled by the interrogator, according to people familiar with the memos. Another approved tactic was waterboarding, or simulated drowning.

A decision to keep secret key parts of the three 2005 memos outlining legal guidance on CIA interrogations would anger some Obama supporters who have pushed him to unveil now-abandoned Bush-era tactics. It would also go against the views of Attorney General Eric Holder and White House Counsel Greg Craig, people familiar with the matter said.

Top CIA officials have spoken out strongly against a full release, saying it would undermine the agency's credibility with foreign intelligence services and hurt the agency's work force, people involved in the discussions said. However, Director of National Intelligence Dennis Blair favors releasing the information, current and former senior administration officials said [...]

Intelligence officials also believe that making the techniques public would give al Qaeda a propaganda tool just as the administration is stepping up its fight against the terrorist group in Afghanistan and Pakistan. Some former administration officials have also argued that releasing all the memos could help terrorists train to endure the most extreme interrogation techniques.

Marcy Wheeler explained that this is nonsensical, because it's already been disclosed by the ICRC report, meaning that whatever propaganda value Al Qaeda could glean from such disclosure already exists.

And Greenwald notes that these are legal documents, from the Office of Legal Counsel, and not intelligence documents that would compromise sources and methods. These were the secret laws under which the United States was governed in the Bush era with respect to their view of the laws on interrogation techniques, and failure to disclose them would essentially means that Obama agrees with the opinion that the United States executive branch should govern itself secretly and outside the purview of the people who hired him.

This renders blatantly frivolous the Bush-mimicking excuse that will almost certainly be offered in the event of substantial redactions today (and which anonymous Obama officials previewed yesterday in the WSJ): namely, that non-disclosure is compelled by the Safety of the American People. Aside from the fact that the "enhanced interrogation techniques" which these memos authorized are supposedly barred from use by President Obama's own Executive Order -- thus rendering any national security claims for concealment of "operational details" absurd on their face -- how can it be the case that legal opinions about what is and is not legal in the view of the Government should be kept secret? To justify the non-disclosure of these memos is to affirm the right of the U.S. Government to operate under secret laws -- about the most anti-democratic state of affairs imaginable.

Andrew Sullivan summarizes the decision today.

If Obama, for some reason, decides to prevent us from seeing exactly what was done then he will achieve only one thing: he will tell the world that the US has indeed authorized and practised war crimes while simultaneously telling the world that America will not be accountable for it.

He will betray all of us who supported him to restore the rule of law. He will, in fact, merely confirm the worst fears of what was actually done while making himself an accomplice to protecting the war criminals who did it.

And indeed, we will have to assume, in the absence of this disclosure, that at least some of these techniques are still going on. The fact that a Guantanamo detainee recently called Al Jazeera with his telephone privilege to complain of abuse at the hands of his captors offers a glimpse into the current situation at Guantanamo. Without full disclosure, we have to surmise the reasons for the protection of Bush doctrine, and one possible option is that it's still in place.

On a day where we here of more civil liberties abuses at the heart of our government, the President can choose to defend those past abuses, or by opposing, end them. His choice.