President Obama made a fair imitation of channeling George Washington and Abraham Lincoln at his inauguration, but when the moment arrived that he most needed their wisdom he banished the greatest presidents from his mind.
Washington formulated American policy against torture, and Lincoln at the depth of the Civil War for the union gave it the formal expression that became the foundation of international law and the Geneva Conventions. General Washington and the Continental Congress made universal respect for human dignity a premise of the revolution itself, and it was for that lofty principle that the United States for two centuries was the lighthouse for a world where human oppression in some form was always a resort.
Then came George W. Bush, who thought the basis for American authority was its military not its moral might. No leader ever did a tenth the harm to America's standing as Bush when it was revealed five years ago that upon his approval Muslims gathered up in the Iraq and Afghanistan war were being systematically tortured at military prisons and in secret chambers around the world operated by the government's intelligence services.
President Obama became the most admired man in the world because he would again stake America's claim to be the city on the hill where crimes against humanity would be both banished and punished. Last week he said it was time to put all that behind us and just move on. The men who tortured were following orders and the opinions of government lawyers, misguided as they were, and they were honestly trying to do right by a country in peril.
What would Washington and Lincoln say to that? When the very existence of the nation hung in the balance, they ordered that the dignity of prisoners be respected no matter their conduct or their intelligence value.
Peering across the Hudson River with binoculars on Nov. 16, 1776, when the Continental Army was on the verge of collapse, Washington watched the torture of American prisoners at the hands of the British and heard their screams. He turned aside and sobbed and then wrote orders that British and Hessian prisoners, the latter of whom had treated Americans with particular barbarity, were to be treated humanely. “Let them have no reason to Complain of our Copying the brutal example of the British army,” he wrote. John Adams wrote that respect for enemy combatants was fundamental and that the country should not and could not win upon any other ground.
When he became president Washington pushed Congress to pass the Alien Tort Claims Act, which human-rights victims could use to hold people accountable.
At the depth of the Civil War when matters were bleakest for the union, Lincoln formulated the nation's first code of war. He wanted to prosecute the war vigorously so that the civilian South was forced to bear some of the suffering from “the hard hand of war” — it was the underpinning for Sherman's march to the sea — but there would be no torturing of prisoners, no cruelty, no revenge, and the truce flag and quarter were to be sacred.
Now we are to believe that the danger to the country in those days is so far surpassed by bands of religious extremists in the hills of Afghanistan that the cruelty that we have prohibited in our own conduct and punished in others' is justified.
Obama does not believe that any more than did John McCain, who said two years ago that he and the other victims of torture in Vietnam bore up in the sure belief that America would never treat their captors that way if roles were reversed. The Vietnamese authority could justify their cruelty by citing McCain's pain-induced admissions of complicity in war crimes, which would mirror the claim last week of Bush administration officials. They said waterboarding and other forms of torture got them knowledge of al Qaeda's command structure.
The memos that the president released last week ahead of court orders that he do so ought to be required reading, not because they told the world much that was not already known about the torture regime, but because they show the flimsiness of the legal reasoning and the perfidy of the administration in crafting lawful authority for something that clearly violated both U. S. law and the international doctrines to which the country subscribed. The Nazis fixed the standard for that. The lawyers drew up a legal blueprint for every barbarous experiment. But that didn't fly with the United States. Nuremberg Principle IV said: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”
The president's problem is understandable. The greater culprits are the men who wrote the legal underpinnings. Should not they and not the CIA agents be investigated and prosecuted? And if you do, whom did they do it for? Our values and the conventions that the country ratified demand that the government at least undertake an independent investigation and formally acknowledge that what was done was indeed criminal. It will be tough medicine but the country will be better for it.