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09/12/2014 | Begging Cheney’s Pardon: Argentina's ''mini-Nuremberg''

Martin Edwin Andersen

There is nothing more dangerous than revolutions that do not carry out the postulates they themselves generate, and nothing more unfaithful than the public man who, when at the height of power, shows himself to be in disagreement with the doctrines that he sustained when he was in the political wilderness, and that had determined his ascent. – Argentine President Hipolito Yrigoyen

 

To the outgoing Senate Intelligence Committee Chair, Democrat Dianne Feinstein, post-9/11 harsh interrogation techniques used on foreign terrorist suspects by the Central Intelligence Agency undermined U.S. “societal and constitutional values that we are very proud of.” Anyone who reads her committee’s report supposed to be released this week on the brutal and inhumane technique used, she said in a Los Angeles Times interview, “is going to never let this happen again.”

Meanwhile former CIA Director Michael Hayden, who reduced but did not end torture techniques while he was the spy chief under President George W. Bush, weighed in on CBS what he saw as the likely result of publication of the controversial committee report summary: "First of all, the CIA workforce will feel as if it has been tried and convicted in absentia since the Senate Democrats and their staff didn't talk to anyone actively involved in the program. Second, this will be used by our enemies to motivate people to attack Americans and American facilities overseas."  

"Finally ... there are countries out there who have cooperated with us on the war on terror at some political risk that are relying on American discretion. I can't imagine anyone out there going forward in the future who would be willing to do anything that even smacks of political danger."

Hanging in the balance: Whether Feinstein’s committee will this week finally release the report; the clock is ticking, as at week’s end the Senate goes out of session and Feinstein will be replaced as chair by North Carolina Republican Richard M. Burr, on record as vigorously favoring the controversial interrogation techniques.

The stand-off in Washington is about one of the darkest chapters in the CIA’s history and comes as critics point out that—except for a few low-ranking American soldiers brought to justice for their atrocious behavior at the infamous Abu Graib facility—no one has been held accountable for the widespread use of tactics President Obama quickly outlawed as “torture” after campaigning against them while running the first time for president.

The absence of real accountability, these critics point out, means that Washington may be on its way, post-Obama, to engage in practices that are themselves against American values going back to George Washington at Valley Forge, as well as contrary to long-term U.S. interests today.

While the Obama Administration appeared stymied about how to proceed, former Commander-in-Chief George W. Bush seemed intent on redirecting the debate to an “us-or-them” position in which any criticism of his former subordinates’ use of torture practices is an attack on the women and men of the CIA who serve—by obeying orders—their country, often at great personal risk.

“We’re fortunate to have men and women who work hard at the CIA serving on our behalf,” Bush said of those working in agency once run by his father. “These are patriots. Whatever the report says, if it diminishes their contributions to our country, it is way off base.”

Meanwhile Shane Harris and Tim Mak report in a critical Daily Beast analysis, “CIA Won’t Defend Its One-Time Torturers,” that clandestine agency personnel—including “people who participated in the program and have since gone on to more senior jobs and (who) are still taking part in counterterrorism operations today”—wonder what is in store for them personally, as well as for the Agency.

A “certain dramatis personae will be conspicuously absent, most notably the former vice president, Dick Cheney, and his right-hand man David Addington, who are among the senior Bush administration officials who bear the most responsibility for setting up the program,” Harris and Mak pointed out. “Their free pass isn’t sitting well with CIA employees, who insist they themselves were following the White House’s orders and had been given assurances their extreme actions were legal.

It goes back to the one basic thing: Whether they did right or they did wrong, they were told to do something, they did it, and they feel like they had the rug pulled out from underneath them.

“If they don’t see some measure of support for them, they’re going to find it very disappointing,” said another former senior intelligence official who is familiar with the contents of the Senate report and thinks it unfairly portrays the agency as going rogue and trying to mislead Congress about how it illegally tortured detainees.

The standoff is as critical to national security operations as it is bathed in controversy, as both sides have valid concerns crying to be addressed, although those justifying the controversial interrogation programs seem confused about the fact that the very act of torture, causing as it does much foreign dismay, is what puts at risk U.S. women and men in and out of uniform, not just press coverage of it.

A possible solution to this ethical and national security conundrum facing the world’s oldest and arguably most over-extended democracy comes from the recent example of Argentina, where Nunca Más (“”Never again!” as Feinstein said) was the famous path-breaking official report on state terrorism—the disappearance, torture and clandestine murder of as many as 24,000 people—in a so-called dirty “war” that wracked that country in the 1970s and early 1980s.

After the Argentine military was humiliated by the British in a real shooting war in the Falkland/Malvinas islands and had retreated to their barracks, an authentic human rights hero—Raul Alfonsin—assumed the presidency.  The year after Nunca Más was published, Argentina’s civilian courts tried the former neo-Nazi military junta members for mass criminality in the most important public trial since the Argentine generals’ military heroes were tried at Nuremberg.

It was Alfonsin’s dictum issued during the mini-Nuremberg experience—that those at the top should be the ones held accountable rather than those that strictly followed orders—that seems most relevant here. Despite often bitter criticism from fellow human rights professionals, Alfonsin's "due obedience" doctrine distinguished three levels of responsibility for human rights violations: those who gave the orders, those who followed them, and those who exceeded the orders, committing aberrant and atrocious acts or benefiting for personal gain.

While the Argentine president’s use of due obedience was roundly criticized by more militant human rights groups at the time, their attempts to do an end run around it by flooding the courts with criminal cases against lower ranking military and police who had just followed orders ended up provoking the first of three military putsch attempts. It was Emilio Mignone, the saintly dean of the rights community, who later admitted to me that the path fellow anti-dictatorship hero Alfonsin tried to enforce was both tactically and strategically the best.  Alfonsin’s mini-Nuremberg example—focusing on those who gave the orders and those who aberrantly carried them out—became a model for truth and reconciliation around the world.

The parallels to today’s situation, where a pro-torture Republican is about to head the Senate Intelligence Committee, and ISIS and other terrorist organizations are a clear threat to U.S. security, are obvious.

Rather than argue over the jots and tittles of the classified information contained in report on the clandestine service and how disclosure may affect future national security, President Obama could likely bring this controversy to successful closure if he would only issue an official "pardon" of Cheney, et al. Using the leader of the free world’s bully pulpit to enshrine current official policy against torture by pointing to who were really the guilty parties would go a long way to end the Senate-CIA impasse in the most safest and most professional way possible.

Going after Cheney while seeking to restore confidence inside the CIA by keeping the report summary classified is the right thing to do for a commander-in-chief who came to power blasting the Bush Administration’s rampant human rights violations. Publicly and officially blaming Cheney, even while pardoning him, does what the Senate committee summary does not—it clearly spells out that it was the former Vice President and his unethical aides who created the so-called rendition, detention, and interrogation programs.

There is a critical precedent that both underscores the importance of “due obedience”—legal and moral responsibility—during a time of crisis and scandal, while most importantly ensuring that in the future those seeking to captain such schemes face real penalty. 

On September 8, 1974, President Gerald Ford, who took office after President Richard M. Nixon’s resignation and who had as an aide a young Dick Cheney, pardoned his unindicted predecessor for his involvement in the Watergate scandal.

Then there were no historical or legal precedents to guide Ford on what to do about Nixon's pending criminal indictment. By giving Nixon a full pardon for all offenses, Ford was able to squash the tragic and disruptive scandal facing the nation, avoiding a long, drawn-out trial that would only have further polarized the public.

A presidential pardon for Cheney would make any attempt by the incoming Republican Senate majority to restrict publication of the committee report’s summary beside the point.  In addition, it may very well win bi-partisan approval, or at least pregnant silence from leaders of the GOP.

GOP senators such as Arizona’s John McCain and South Carolina’s Lindsey Graham have been anti-torture stalwarts. In 2009, Kentucky’s Ron Paul said in interviews that his party should publicly reject Cheney for defending “torture.” (While disassociating himself from calls that the former Vice President be prosecuted, Paul did compare the question of Cheney being called into court to the case of Ford pardoning Nixon.) And former aide to Bush Secretary of State Colin Powell Col. (ret.) Larry Wilkerson slammed Cheney, saying he feared being “tried as a war criminal.”

The United States prides itself on democratic roots extending all the way to ancient Greece. It was there that a scapegoating right was practiced in which a criminal was cast out of the community, often in response to a natural disaster. In the Bible, a goat was chosen and sent to die in the desert as part of the Day of Atonement. And example of Argentina, once known as the United States of the south, offers through Alfonsin’s “due obedience” doctrine the chance to formally distance the U.S. from the systematic violations of the rights of other countries’ citizens by focusing responsibility on those who gave the orders, while letting the CIA operators get back to protecting the country.

President Obama put a scar across the map that shows that torture is both criminal and contrary to American values. If Dick Cheney, who purposefully falsified the threat posed by Saddam to get this country into war and who supports torture, is the symbolic scapegoat, in a real sense justice is being served. Moral illiteracy in Washington, it should be remembered, does a lot of heavy lifting for ISIS and its fanatical allies.

And while the late Raul Alfonsin deserves great credit for his “due obedience” paradigm that got his country on the road to democracy and the rule of law, it was the words of his predecessor upon which President Obama should reflect.

For as Hipolito Yrigoyen said nearly a century ago, there “nothing more unfaithful than the public man who, when at the height of power, shows himself to be in disagreement with the doctrines that he sustained when he was in the political wilderness, and that had determined his ascent.”

 

_____________________________________________________

 

Martin Edwin Andersen, a former professional staff member of the U.S. Senate Foreign Relations Committee, is the author of Dossier Secreto: Argentina’s Desaparecidos and the Myth of the “Dirty War.”

 

Offnews.info (Argentina)

 


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