By Dave Anderson
"Just following orders" is not a legitimate defense for war crimes. Individuals are responsible for their own actions and their own moral judgements if they are following orders that are clearly illegal. They have an active obligation to not follow illegal orders. Torture orders are illegal orders no matter what thin legalistic patina John Yoo could paint on those orders by ommission and euphamism. However, "Just Giving Orders" should not be a viable or legitimate defense either. However it looks like it will become one.
Spencer Ackerman reports that AG Holder is mainly willing to investigate the front line alleged torturers for going past the Yoo guidelines for torture in polite company.
And now it appears Attorney General Holder is getting closer to appointing a special prosecutor for the CIA's torture apparatus. That prosecutor will focus, according to Greg Miller and Josh Meyer, just on the CIA, and not even on the top agency officials who helped create the apparatus, but on the frontline interrogators who went beyond the "legal" guidance about how much torture was permissible. I don't want to suggest that an operative who walks into an interrogation chamber with a gun is an innocent. But it's plainly an affront to common sense to suggest that the circumstances that led him into that room shouldn't be the subject of investigation.
Ian Welsh identifies the political calculation and the weakness behind that calculation:
The Obama administration thought they could avoid the rise of the refusnik right by refusing to act on most social issues, which is why they abandoned their promises to gays and have generally been unwilling to move on other social issues. They took the lesson of the Clinton administration to be �don�t inflame the fanatics on the right�avoid social issues, and don�t slash the military�. They were, of course, wrong: the radical right (and there is hardly a non-radical right left) will oppose Obama no matter what he does and if Obama is unwilling to use to the full might of the administrative apparatus against them, they will simply take advantage of his weakness to escalate. Tactics which are seen to work, will not be abandoned, to the contrary, they will be used more and more.
Torture investigations of any sort will create a political shit-storm. Not investigating torture and sweeping it behind us without taking long term and credible corrective action will harm the United States foreign policy even more. So just do it right, accept that the right-wing will throw a hissy fit and accuse Democrats of trying to kill Down Syndrom babies because torture protects Real America, and get it done.
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