Argentina's "due obedience" model

and the Senate-CIA torture imbroglio

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

By Martin Edwin Andersen

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 committees 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 spymaster 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 Feinsteins committee will this week
finally release the report; the clock is ticking, as at weeks end the
Senate goes out of session and Feinstein will be replaced as chair by
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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
CIAs history and comes as critics point out thatexcept for a few lowranking American soldiers brought to justice for their atrocious behavior
at the infamous Abu Graib facilityno 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 serveby obeying orderstheir
country, often at great personal risk.
Were 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 Wont Defend Its One-Time Torturers, that clandestine
agency personnelincluding people who participated in the program
and have since gone on to more senior jobs and (who) are still taking
part in counterterrorism operations todaywonder 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 isnt sitting well with CIA
employees, who insist they themselves were following the White
Houses orders and had been given assurances their extreme actions
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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 dont see some measure of support for them, theyre
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 worlds oldest and arguably most over-extended democracy
comes from the recent example of Argentina, where Nunca Ms (Never
again! as Feinstein said) was the famous path-breaking official report
on state terrorismthe disappearance, torture and clandestine murder
of some 24,000in a so-called dirty war that wracked that country in
the late 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 heroRaul Alfonsinassumed the
presidency. The year after Nunca Ms was published, Argentinas 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 Alfonsins dictum issued during the mini-Nuremberg experience
that those at the top should be the ones held accountable rather than
those that strictly followed ordersthat 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,
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those who followed them, and those who exceeded the orders,
committing aberrant and atrocious acts or benefiting for personal gain.
While the Argentine presidents 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. Alfonsins miniNuremberg examplefocusing on those who gave the orders and those
who aberrantly carried them outbecame a model for truth and
reconciliation around the world.
The parallels to todays 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 worlds 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
Administrations rampant human rights violations. Publicly and officially
blaming Cheney, even while pardoning him, does what the Senate
committee summary does notit clearly spells out that it was the
former Vice President and his unethical aides who created the so-called
rendition, detention, and interrogation program.
There is a critical precedent that both underscores the importance of
due obediencelegal and moral responsibilityduring a time of crisis
and scandal, while ensuring most importantly that in the future those
seeking to captain such schemes face real penalty.
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On September 8, 1974, President Gerald Ford, who took office after

President Richard M. Nixons 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 reports 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 Arizonas John McCain and South Carolinas
Lindsey Graham have been anti-torture stalwarts. In 2009, Kentuckys
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
Alfonsins 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.
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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:
Argentinas Desaparecidos and the Myth of the Dirty War.