That weird sixteenth-century hangover, the torture debate, continues in America, with the latest news this morning the emergence of documentary evidence that then national security adviser Condoleeza Rice approved elements of the torture program as early as 2002. Just one more intractable ingredient in the morass confronting Barack Obama as he tries to sort out how far accountability for torture should run.

Coverage of the issue sometimes implies that the Nuremberg principle, that obedience to orders is no defence to war crimes or crimes against humanity (officially known as “Nuremberg Principle IV”:, is a new or radical idea. In fact, it’s long been recognised in the common law that the more serious the crime, the more difficult it is to establish a defence of coercion. The level of pressure that will excuse you if you were coerced into participating in armed robbery, for example, is not likely to be sufficient if the crime is mass murder.

The difference with something like torture is that investigation and prosecution cannot realistically be just left to the ordinary legal process. Much as the Obama administration would like to just “let the law take its course”, they cannot escape the fact that on this issue, decisions are inescapably political, and political reality puts severe constraints on who can be pursued.

In the case of low-level personnel, no-one really thinks they should be prosecuted for acting under orders, however unlawful those orders might have been. War crimes trials have always gone after the people who gave orders, who had real executive responsibility, rather than those at the bottom of the chain.

But in America, the people at the top of the chain are equally untouchable. George W Bush and Dick Cheney may one day face a tribunal at The Hague (if they are foolish enough to travel to Europe), but the chance of an American president allowing the domestic prosecution of his predecessors for war crimes is essentially zero. American politics just doesn’t work that way.

That’s why so much attention is being focused on mid-level figures, such as the Bush administration lawyers who drafted advice to justify the torture program. For them to face justice for their crimes (one, Jay Bybee, is now a federal judge and faces possible impeachment would be neither obviously unfair nor politically impossible. It might take some time, but that seems to be the position that Obama is feeling his way towards.

And spare a thought at this point for the “teabaggers”, the protesters who seem convinced that Obama is leading the US towards totalitarian socialism. Do they really have evidence of anything from Obama that is remotely as great a violation of western, enlightenment values as the embrace of torture? And if not, shouldn’t they maybe keep quiet?

Andrew Sullivan gets to the heart of the issue:

The Western anathema on torture began as a way to ensure the survival of truth.

And that is the root of the West’s entire legal and constitutional system. Remove a secure way to discover the truth – or create a system that can manufacture it or render it indistinguishable from lies — and the entire system unravels…

“This is not a policy difference. It is a foundational element of Western civilization.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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