Like many people around the world, I have paid close attention as President Obama’s administration wrestles with how it will deal with our nation’s recent experience concerning torture. I rejoiced as Obama renounced practices such as water-boarding within his first week in office. More recently, I was pleased to see the Obama administration release previously classified documents and legal opinions issued during the Bush administration concerning torture.
President Obama has often declared that subjecting vulnerable people to inhumane treatment violates our sense of morality and humanity—as people, not merely as Americans. Our nation has already tried and punished enlisted military personnel for inhumane treatment of people held in their custody. The accepted justification for doing so is that our security forces in the uniformed services know—even at the lowest ranks—that this behavior is wrong, unjust, illegal, contrary to our values and therefore inexcusable.
So, if U.S. enlisted military personnel have been punished for failing to obey this fundamental rule of decency, why should political officials and intelligence operatives receive immunity from investigation and punishment for secretly ordering, advising and engaging in similar or worse conduct? Why shouldn’t the Justice Department investigate and determine whether these actors violated laws intended to protect vulnerable people from hellish treatment? How is it somehow commendable that President Obama has signaled to the intelligence apparatus of the United States that acts of inhumanity and torture allegedly counseled and practiced during the Bush administration will go uninvestigated and unpunished? When did it become just and morally defensible to excuse inhumane treatment and torture committed under orders from White House and Pentagon lawyers?
We should be concerned by President Obama’s statement that he is more interested in looking forward than backward when it comes to addressing allegations of inhumane treatment counseled and perpetrated by political officials and Central Intelligence Agency operatives. Moral leadership holds morally accountable actors responsible for intentional misconduct, including misconduct perpetrated under the pretext of following orders. This was one of the signal lessons of the Nuremberg War Crimes trials that followed World War II.
If the laws that prohibit inhumanity and torture are just, then they should be obeyed by national security personnel and enforced by the chief executive of the United States. If the chief executive believes that violators of those laws deserve leniency or pardons, then our justice system can accommodate those concerns. But it is neither just nor otherwise morally right for the chief executive to say that we deplore and reject inhumanity and torture in one breath, then claim in the next breath that we should not and will not investigate and punish people for counseling and committing acts of inhumanity and torture.
The Watergate and Iran-Contra investigations concerning scandals that occurred during the Nixon and Reagan presidencies also show that President Obama’s “looking forward, not backward” position is historically inaccurate. H.R. Haldeman, G. Gordon Liddy, Oliver North, John Poindexter and Casper Weinberger were investigated for their respective roles in those situations. The investigations did not hinder governmental operations. If anything, the investigations made official statements about no person being above the law—or beyond the law—credible. North and Poindexter eventually saw their criminal convictions overturned on appeal, and Weinberger received a presidential pardon from President George H.W. Bush after his indictment. However, their actions were treated as proper subjects for our justice system.
Dr. Martin Luther King Jr. often said that an unjust law is no law at all. Every member of the U.S. military and national security operative knows that one is duty-bound to disobey an illegal order. Thus, the claim that anyone who counseled or committed acts of inhumanity or torture in the challenging aftermath of the 2001 terrorist attacks somehow relied on orders from the White House, the Pentagon or any other authority is immoral. The issue for President Obama and the nation is whether Americans have the integrity to demand that inhumanity and torture counseled and perpetrated in our names be investigated, prosecuted and punished. A just society will investigate and punish inhumanity and torture.
“We grope like the blind along a wall, groping like those who have no eyes; we stumble at noon as in the twilight, among the vigorous as though we were dead. We all growl like bears; like doves we moan mournfully. We wait for justice, but there is none; for salvation, but it is far from us.” (Isaiah 59:10-11)
Wendell L. Griffen is a Baptist minister and law professor at the University of Arkansas at Little Rock Bowen School of Law. He is also owner/CEO of a consulting firm and parliamentarian of the National Baptist Convention, U.S.A. He lives with his wife in Little Rock, Ark.