Obama must widen gate to America’s ’dark period’ ERNA PARIS From Saturday’s Globe and Mail

May 1, 2009 at 11:16 PM EDT

Barack Obama is facing a Waterloo moment. The pressure on him to appoint a special prosecutor to investigate the criminal liability of high-ranking Bush administration officials is growing daily.

A full investigation is needed to determine the scope of what took place at the heart of the world’s most powerful democracy, but the prima facie evidence of criminal acts in breach of domestic law, the Geneva Conventions and the 1975 United Nations Convention Against Torture seems strong.

In addition to the recently released memos from the Office of Legal Counsel, which describe and defend techniques of torture to be used by the Central Intelligence Agency, three other incriminating documents have been declassified: a Senate armed services committee report, a Senate intelligence committee report, and another document from May, 2002, that exposes CIA-White House harmonization in approving torture practices known as the "Bush Program."

What is at stake for Mr. Obama is his ability to place a clear marker between his administration and that of his predecessor: in other words, his willingness to make a complete transition.

He has already repudiated the fear-laden language of former president George W. Bush’s "war on terror," announced the closing of the prison at Guantanamo Bay and rejected the use of torture as an intelligence tool. But the gate separating the present from the past - from what he has called "a dark period in our history" - must be wider.

Without clear accountability for state-instigated crimes committed in the name of the American people, Mr. Obama will be seen as lacking the moral fibre for which he is admired internationally. He will be seen as facilitating the impunity of the powerful, as having backed down on the substantive change he promised. The "Yes we can" shouted so loudly by so many Americans included the restoration of their country’s reputation as a place where law rules and human rights are respected.

A decade ago, it would have been unimaginable that torture - outlawed morally since the Spanish Inquisition and formally since the UN Convention Against Torture - might become a topic of serious debate at the start of the 21st century. It is widely known that human beings whose nails are being extracted, who are shut into dark airless boxes or who believe they are being drowned will say anything to make the excruciating pain stop. I have personally interviewed French survivors of Nazi torture who made this abundantly clear 40 years after the fact.

So it’s important to understand how this came to be. In my view, two ancient strains in human affairs became markedly and simultaneously visible at the end of the Cold War. The first is the philosophy of might makes right. When the United States emerged as the world’s sole remaining superpower, it presumed this entitlement, especially after 9/11. The invasion of Iraq was justified by the conviction that the powerful do not need the approval of others. (Conservative columnist Charles Krauthammer quipped: "It would be nice if we had more allies ... it would also be nice to be able to fly.") Twisting the law to accommodate torture also derived from entitlement. Nothing mattered but the alleged interests of the powerful.

However, the second strain happened to be law and justice, in particular, the re-emergence of international criminal tribunals for the first time since the Nuremberg trials. Having failed to stop genocide in both Bosnia and Rwanda, the United Nations established ad hoc criminal courts in the 1990s to try the perpetrators of crimes against humanity. These were followed by the birth of the International Criminal Court in 2002, the world’s first permanent, independent tribunal.

The architecture of the world order was already changing when Bush administration officials bent the law to justify torture. Unopposed power coupled with a sense of entitlement blinded them to this emerging shift.

The United States needs to launch its own criminal investigations, but if it does not, Judge Baltasar Garzon of Spain, who is known for his efforts to extradite Chilean dictator Augusto Pinochet, has announced that he will open an investigation into the systemic violations of international law in the Guantanamo camp. He is able to do this under the long-standing rubric of "universal jurisdiction," in which crimes against humanity and war crimes can be tried outside national borders. Indeed, a U.S. court exercised universal jurisdiction earlier this year in a torture case involving the son of Charles Taylor, the former Liberian dictator. At the very least, subpoenas and indictments would curtail the travel of U.S. officials. In the current environment, great power is no longer a sufficient protection.

The attack on the impunity of those who commit major international crimes is no longer a simple ideal, although just how far it will travel up the chain of command remains to be seen. What is newly evident is that the unlovely past cannot be ignored without social and political consequence.

As a constitutional lawyer, Mr. Obama knows better than most that state crimes were likely committed at the highest levels. What he chooses to do about it will shape international perceptions of his presidency.

Erna Paris is author of The Sun Climbs Slow: Justice in the Age of Imperial America.