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An Inconvenient Obligation


President Obama's inauguration speech was full of forward looking bipartisanship . We should not let partisan sniping stand in the way of doing the work necessary to fix our economy, improve our nation's health care, and develop alternative energy sources.

Yet there is one thing which Obama still must do, even though he will be accused of partisanship by doing so: he must thoroughly investigate Bush administration, and, where evidence of criminal action is strong, prosecute those responsible.

The human rights abuses of the Bush administration must be thoroughly investigated, not merely because they were wrong, but because we have an obligation to do so under treaties our nation voluntarily signed, including the U.N. Convention Against Torture.

Article 12 of that treaty says that "Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction."

In the aftermath of Susan Crawford's admission that military personnel tortured Mohammed al-Qahtani, there is certainly "reasonable ground" to believe torture occurred. And, while the administration's choice of putting a detention center on Guantanamo intentionally left it outside the jursidiction of U.S. law, it's hard to argue that Guantanamo is not territory under American control.

This treaty allows no exceptions for "national security" or for dealing with "terrorists" or "enemy combatants" who are not deemed prisoners of war. From article 2:
"No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency , may be invoked as a justification of torture". (emphasis added)

If for some bizzare reason the Obama administration feels compelled to continue torturing, it may denounce the treaty, which the United States signed in 1988, under Ronald Reagan, and ratified in 1994, under Bill Clinton. Article 31 allows a nation to "denounce" the convention, and one year after if formally does so, that nation is no longer bound by the convention's restrictions. But article 31 paragraph 2 reads:
"Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective".

In plain English, even if we withdraw from the convention (itself a horrible public relations move), we're still obligated to investigate torture, and, where evidence of it exists, we must prosecute.

This isn't some political witch hunt of partisan Democrats exacting "vengeance" on hated Republicans. It is an obligation under a treaty freely signed by a Republican president, and later ratified by a Democratic Congress. And it's the moral thing to do, too.

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I believe DOJ will be looking into torture and other Bush Administration wrong doings, it just can't look like a witch hunt. If they find egregious wrong doings they will prosecute. Else, they will leave the evidence for history to decide.

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President Obama said that the rule of law will be a touchstone of his administration and that no one is above the law. He also said that it is his inclination to look forward rather than backward, giving the impression that he is less than enthusiastic about prosecuting those who have violated the law repeatedly in the past.

"For the good of the nation," Gerald R. Ford pardoned Richard Nixon for his Watergate crimes and engendered the Iran-Contra scandal. "For the good of the nation," George H. W. Bush pardoned the Iran-Contra perpetrators and cleared the way for the criminality of the past eight years by the George W. Bush administration.

It is time to end this pernicious poisoning of American governance and to hold accountable those who violate the laws of the United States.

In his stirring dissent in Olmstead v. U.S., 277 U.S. 438 (1928), Justice Louis Brandeis declared:

“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. . . .”

The oath the President took to preserve, protect and defend our Constitution imposes upon him the duty to restore the rule of law in America.

For the good of the nation, all of those in the Bush administration who committed crimes against the United States must be brought to justice without delay.

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