Turley: Failure to Prosecute Bush on Torture Would Make Obama an ‘Accessory’ to War Crimes

Before they left office, both George Bush and Dick Cheney defended their administration’s practice of torturing of suspects in terror cases. Bush characteristically attempted to deflect responsibility for what his operatives euphemistically called “interrogation techniques” on the grounds that a lawyer in his employ said the practices were legal.

“I firmly reject the word ‘torture,’” Bush told Fox News. “Everything this administration does had a legal basis to it; otherwise, we would not have done it.”

Cheney freely admitted his role in approving torture. “I was aware of the program, certainly,” he said, “and involved in helping get the process cleared.”

Semantics aside, earlier this month, Susan Crawford, a Bush Pentagon appointee who served as the “convening authority” — apparently a role that has aspects of both judge and prosecutor — for the Guantanamo military commissions told a reporter that Mohammed al-Qahtani, the “20th hijacker, had, without a doubt, been tortured.

These admissions present Pres. Obama with a problem. Torture is not only illegal in the United States, it is also banned by international treaties that the United States has signed. Under these treaties, prosecuting torture is not an option. It is required.

On MSNBC’s “Countdown” last night, Jonathan Turley, a professor of constitutional law at George Washington University, told Keith Olbermann that these treaties compel the president to investigate all allegations of torture, and that failure to do so would be obstructing justice, which would make him complicit in the crimes.

A rough transcript, follows…

Narrative picks up at 0:49 in the video above:

OLBERMANN: Let’s rewind to the Obama [spokesperson’s] statment. [“As the president made clear … his administration is ensuring that all programs are conducted in accordance with our values and the rule of law. There will be no exceptions.”] How much daylight might there be between that and any of the analogs from the Bush White House?

TURLEY: Not much. First of all, it responds in the future tense. You weren’t asking whether he would do these things. Nobody thinks that Obama is George Bush. I think we believe that he’s better than these past programs. But people aren’t asking about the future. It’s about the past. It takes a lot to avoid a very simple truism — that, if true, these would be crimes. And we prosecute crimes. We call people who commit them “criminals.” It’s very easy to say — all you need to have is the principles and the courage to say it.

OLBERMANN: The claims from Russell Tice — Mr. Bush’s admission that he greenlit interrogations that included waterboarding. Are these not exactly the kinds of evidence that Mr. Obama said his prosecutors would pursue?

TURLEY: He did. And what’s troubling us is that he doesn’t simply say the easiest possible thing — that’s the conspicuous silence. The easiest thing is to say, “I must prosecute war crimes, because we have treaties that obligate us to do that, and any war crimes we discover will be prosecuted.” It’s a very easy thing to say. It happens to be the law. And what really scares many of us is that nobody is saying that in the Obama camp.

OLBERMANN: Let’s say some kind of prosecutiion ensues, how does it get decided whether it’s the grunts who did the actual torturing and waterboarding and what else not who get pursued in this, or the people who told them to do it?

TURLEY: Keith, I have very little sympathy for the people who committed this torture. I’ve heard Pres. Obama say, you know, we don’t want talented people at the CIA looking over their shoulders. Well, those talented people in this circumstance would be torturers. But in reality, nobody thinks that they’re going to be prosecuted. They have something called the Estoppel Defense, where they can say they were told by people like John Yoo and others that what they did was legal. That does not protect the president and vice president. And they’re the ones — and the people just below them — who deserve to be investigated. And they must be prosecuted, if they have committed war crimes, or we will shred four treaties and at least four statutes.

And the problem here is that, it wouldn’t make Obama an apologist, it would make him an accessory. He would be preventing the investigation of war crimes. How could he go from that and say he’s all about the rule of law.

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