President Obama is being careful not to appear vindictive or partisan concerning the potential prosecution of Bush administration officials and CIA personnel for crimes related to torture and abuse of suspected terrorists. I understand the fine political line he is walking, but he is ignoring both principle and historic precedent. The argument that a soldier who is “just following orders,” and is therefore innocent of the crimes he commits, was debunked at the Nuremberg Trials after World War II. In that case, Nazi soldiers and SS guards from the concentration camps were held accountable for their crimes even though they were “following orders.”
The principle here is that human beings—if they are to participate in civil society—need to behave in ways that are consistent with basic human values of dignity, respect, and the sacredness of life; and that even in extreme situations individual conscience must play a role. Prison guards at Abu Ghraib were prosecuted because they showed a blatant and sadistic disregard for the dignity and safety of the prisoners. Yet, their behavior was not inconsistent with policies (or the intentional lack of them) handed down from the highest levels of the Bush Administration.
In the case of waterboarding and other forms of torture and abuse inflicted on “suspected terrorists” (some of whom died, and many of whom were later proven to be completely innocent), the perpetrators were following “policies” handed down directly from the White House. But those policies, crafted in secret, were wrong, and they were illegal. This is not a partisan issue. It is an issue of law and of the most fundamental principles of our democracy. “Equal justice for all” doesn’t only mean that everyone’s rights must be equally protected. It also means that everyone must be held legally accountable to the same standard of behavior. Anyone in the Bush administration, or any other administration, who authorized criminal behavior—as well as those who, following orders, committed the crimes of torture and abuse—should be prosecuted to the full extent of the law. Our principles, our humanity, and our national integrity demand it.