A lot of folks in the Twittersphere are pointing to a New York Times story this morning and saying that John Yoo — John Yoo! — has thrown Liz Cheney and Keep America Safe under the bus.
I don’t think that’s the case. Here’s the original quote, along with the NYT’s framing of it (emphasis mine):
John C. Yoo, the former Justice official whose memorandums on torture and presidential power were used to justify some of the most controversial policies of the Bush administration, said he had not seen the material from Ms. Cheney’s group. But Professor Yoo, who now teaches at the University of California, Berkeley, and is active in the Federalist Society, said the debate about lawyers who once represented detainees at the American prison in Guantánamo Bay serving in the Justice Department was overheated.
“What’s the big whoop?” he asked. “The Constitution makes the president the chief law enforcement officer. We had an election. President Obama has softer policies on terror than his predecessor.” He said, “He can and should put people into office who share his views.” Once the American people know who the policy makers are, he said, “they can decide whether they agree with him or not.”
Right now, everyone is focusing on the first half of Yoo’s comments. But it is, in fact, the last sentence that is most telling. Yoo is saying that DOJ should name names. And that’s the core message of Keep America First’s ad: why is DOJ refusing to name names?
One of the things that made McCarthyism so dangerous — and so corrosive — was the Senator’s constant brandishment of supposed lists and his demand that the government give him the names of the people already supposedly on the list. In essence, he was demanding that the government become complicit in the smear, either by naming names or by insisting that names were not on the list — either way giving McCarthy a win and destroying careers.
Yoo is suggesting that once DOJ names names, then “the American people know who the policy makers are, they can decide whether they agree with” the President.
But people shouldn’t be making up their minds over whether they agree with a policy based on who executes it. They should be making their decision based on the policy itself. The whole KAS argument — and Yoo’s implicit support for it — is predicated on the idea that “wrongheaded” people somehow can’t implement good policy. And since the Obama Administration can’t be hit for the actual policy, they’re going after the people responsible for making it work.
And that’s why the KAS ad is so outrageous What Cheney, Thiessen, Kristol — and yes, John Yoo — are arguing is that you should blame the messenger — and demand that she be fired because you didn’t like a message she delivered before she had her current job. It’s a straw man argument at its worst, because it is designed not only to damage the Administration by association, but to destroy the lives — and livelihoods — of good and decent public servants.
To its credit, the DOJ has refused to respond to the demands. From the same NYT piece:
Matthew Miller, a Justice Department spokesman, said accusations that the administration had been secretive or had dragged its feet in responding to the inquiry were untrue. But Mr. Miller said the department would not participate “in an attempt to drag people’s names through the mud for political purposes.”
In a letter sent to Senator Jeff Sessions, Republican of Alabama, the Justice Department said in February that the lawyers understood that they had to take different positions while working for the United States than they did as private lawyers, and that in any case they would recuse themselves from matters in which they had participated earlier.
That’s the real answer, and all we can do is hope that DOJ will not back down.
Via Adam Serwer, it turns out that the Cheneyites remain convinced of the justice of their holy cause. This time it’s Hans von Spakovsky, who was one of the Bush-era DOJ officials responsible for hiring attorneys for non-political positions based on their political affiliations:
I certainly don’t think those same lawyers should be in the Justice Department directing policy and making decisions on prosecutions of those same terrorists. That would be like hiring Mob lawyers in the Organized Crime and Narcotics Task Force or hiring someone who volunteered to defend the Klu Klux Klan in the Civil Rights Division. Those lawyers who all come from big firms have a wide choice of who to help on a pro bono basis and their choice of terrorists says a lot about them –- I would not hire them to represent my company either if I were still a corporate in-house counsel, because I would not want my company’s money subsidizing that kind of legal work.
Those lovely sentiments come via Dave Weigel over at the Washington Independent, who sought out von Spakovsky’s views. Von S. also has a lengthy piece in National Review arguing that the DOJ under Holder is radicalizing its civil rights division — and thus is racist. (I wish I was making this up, but I’m not It just goes to show that the current stewards of William F. Buckley’s legacy will not be satisfied until they eliminate all rational thought from this former bastion of thoughtful conservatism.)
I’ve already touched upon the mob lawyer canard in my comments on Marc Thiessen column in today’s WaPo. Now Steve over at Nomoremrniceblog dismantles the equally insipid (and offensive ) Klan lawyer argument:
I can’t find any Klan defenders in Holder’s Justice Department, but I can certainly find Klan defenders whose work I think Holder would approve of.
Or David P. Baugh, who defended a Klan cross-burner in 1998 and subsequently received the Virginia State Bar’s Lewis F. Powell Jr. Pro Bono Award?
All three of these lawyers are African-American, by the way.
This is a disgraceful argument. Attempting to secure due process for terrorism defendants, or free speech rights for racist haters, is not the same as waging jihad or fomenting a race war. It’s about maintaining a society with the rule of law.
Methinks the Cheneyites are starting to sound like the mob in Act IV of Shakespeare’s Henry VI, Part 2:
DICK THE BUTCHER: First thing we do, let’s smear all the lawyers. . . .in DOJ.
Okay, that’s not quite what he said, but it’s close enough. And lest we forget, here’s what happens a little later in the same scene — an event that few remember and no one likes to quote:
CADE: Let me alone. Dost thou use to write thy name? Or hast thou a mark to thyself, like an honest plain-dealing man?
CLERK: Sir, I thank God, I have been so well brought up that I can write my name.
ALL: He hath confessed; away with him! He’s a villain and a traitor.
CADE: Away with him, I say! Hang him with his pen and ink horn about his neck.
Because that’s what happens after you kill smear all the lawyers: a long slow slide into summary justice and mob rule.
Ladies and gentleman, I present you the latest WaPo column by Marc Thiessen, who apparently has decided that his goal in life is to make Liz Cheney look like Mother Theresa:
Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would — and rightly so.
Yet Attorney General Eric Holder hired former al-Qaeda lawyers to serve in the Justice Department and resisted providing Congress this basic information.
Get the insinuation? Mob lawyers, as everyone knows, are lawyers hired by the mob to defend their interests. Drug cartel lawyers, as everyone knows, are lawyers hired by drug cartels to defend their interests. So “al Qaeda lawyers” must be. . . .
I know! Paid by al Qaeda! Those bastards! Send them to Guantanamo!
Only one small problem here, Marc. The attorneys in question worked pro bono, frequently at the request of [Bush] Administration officials. And some of the people in question, as I’ve noted elsewhere, were brought in by the Bush Administration in the exact same way that you now object to under the Obama Administration.
One other thing: those lawyers you despise for allegedly selling out their country? They took their cases to the Supreme Court. And in a couple of instances, they won. If we were to use your twisted logic, we should now start calling members of the Supreme Court “al Qaeda justices.” And what about the JAG attorneys who defended terror suspects in front of the military tribunals? Are they now al Qaeda judge advocates?
Here’s another Thiessen counter-factual:
Where was the moral outrage when fine lawyers like John Yoo, Jay Bybee, David Addington, Jim Haynes, Steve Bradbury and others came under vicious personal attack? Their critics did not demand simple transparency; they demanded heads. . . .The standard today seems to be that you can say or do anything when it comes to the Bush lawyers who defended America against the terrorists. But if you publish an Internet ad or ask legitimate questions about Obama administration lawyers who defended America’s terrorist enemies, you are engaged in a McCarthyite witch hunt.
Sigh.
First of all, the critics of Yoo et. al. demanded both transparency and heads. Second, this isn’t a tit for tat situation. You are alleging that the lawyers in question did something you didn’t like — but was perfectly legal — when they were in private practice. Those criticizing (and yes, demanding the resignation/censure of) Yoo and friends were saying that they engaged in illegal behavior. Those are not the same thing — and you know better. This is the worst kind of straw man argument — one that uses a straw man to mount an ad hominem attack.
Would someone please again tell me why the Washington Post hired this guy?
I have a couple of new posts over at Care2, my other blog home, and I’ve been negligent in linking to them. The first looks at Jacques Rogge and the International Olympic Committee, and wonders whether they’ll ever actually let the Olympics celebrate the human spirit in a way that doesn’t involve the detention, death, or denegration of humans:
The reality is that Rogge and his colleagues have absolutely no incentive to change things. They are making ridiculous amounts of money. They get treated like kings and queens everywhere they go. And everytime an athlete does something spectacular, most people forget about the bad stuff. As Jenkins notes, the Olympics are virtually indestructible. That’s good news in terms of the amazing spectacle they offer viewers. But let’s stop pretending that they are some sort of celebration of the human spirit. . . . When it comes to the utter mendacity competition, you’ve got to give the gold medal to Rogge and his colleagues on the IOC.
The second looks at a bill introduced yesterday by Rep. Patrick McHenry (R-NC) proposing to replace Ulysses S. Grant on the fifty-dollar bill with Ronald Reagan. . .because he did better in a poll of Presidential historians.
Grant isn’t on the money because of his service as President. By all accounts he was a lousy President — although he’s no longer regarded as one of the worst. But he was kinda sorta maybe really responsible for leading the Union forces to victory in the Civil War. So using a poll of historians on who was the best President as the basis for excluding Grant pretty much misses the reason why he was honored in the first place.
You can read them both here, along with a more thorough takedown of Marc Thiessen, Dick Cheney’s favorite torture apologist.
In case you don’t know who Marc Thiessen is, let me tell you the names of his three most recent bosses prior to 2009:
George W. Bush (speehwriter)
Donald Rumsfeld (speechwriter)
Jesse Helms (spokesman and speechwriter)
Not to play guilt by association here, but it takes a special kind of person to work for these three.
I’ve first met Thiessen since the 1998 World Conference on the Establishment of an International Criminal Court, when Helms sent him to Rome to try to sabotage the negotiations that later led to the ICC. We had more than a few beers together, but we also butted heads repeatedly, given that I was the delegation spokesperson. And it was clear that he enjoyed provoking a media storm more than sticking to the facts.
These days, Thiessen has emerged as the right’s apologist-in-chief on torture, becoming so vocal on the issue that he’s made Dick Cheney look like a dove. In fact, Cheney even wrote a blurb for Thiessen’s new book, Courting Disaster:
Marc Thiessen knows, in ways that few others do, just how effective, heroic, and morally justified were the interrogators who kept this nation safe after 9/11. If you want to know what really happened at the CIA interrogation site or Guantanamo Bay, you simply must read this book.
Now I want to confess that I have not urshed out to read Thiessen’s book. The thing is, that Thiessen has become so omnipresent in the media that I don’t really need to read a book-length exposition of the theses he’s peddling in print and on TV. Most recently, he’s gone after Obama for the use of drones to attack and kill members of al Qaeda and the Taliban:
Today, the Obama administration is no longer attempting to capture men like these alive; it is simply killing them. This may be satisfying, but it comes at a price. With every drone strike that vaporizes a senior al Qaeda leader, actionable intelligence is vaporized along with him. Dead terrorists can’t tell you their plans to strike America.
That’s true, but I would note that dead terrorists also can’t attack America. They are, after all, dead. As Matt Yglesias put it, Thiessen apparently believes that it is better to let four terrorists go free if that means you can torture the fifth.
But that’s not surprising coming from someone who is unwilling to acknowledge that the Bush Administration used torture techniques once used by the Khmer Rouge.
According to Ben Smith over at Politico, Liz Cheney, best known as a former Principal Deputy Assistant Secretary of State for Near Eastern Affairs daughter of Mr. Potter Dick, will head a new 501(c)4 organization to be known as “Keep America Safe.”
Former Vice President Dick Cheney’s eldest daughter Liz will launch a new group aimed at rallying opposition to the “radical” foreign policy of the Obama administration which it says has succeeded only in undermining the nation’s security.
The new group, Keep America Safe, will make the case against President Barack Obama’s moves to wrench America away from Bush era foreign policy on issues from detaining alleged terrorists at Guantanamo Bay to building a missile shield in Eastern Europe.
“The policies being proposed by the Obama administration are so radical across the board,” Cheney said. “Whether you’re a Republican or a Democrat, you want the nation to be strong and so many steps this president is taking are making the nation weaker.”
The new group will add institutional heft to a scathing critique of Obama articulated first and loudest by Liz Cheney’s father, and fills a void left by a Republican Party made skittish by the Iraq War, and apparently more eager to engage the president on domestic issues like health care.
Keeping America Safe plans to release memos from the Bush era demonstrating that torture was a good thing and not, uh, torture:
The Keep America Safe website, she said, would feature memos by Bush Administration lawyers justifying waterboarding and other practices to make the case that they aren’t torture.
Supporters “can read the memos on enhanced interrogation instead of reading them through the lens of the media where they’re called ‘Torture memos’ when, actually, they’re lawyers talking about an anti-torture statute and how not to violate it,” she said.
Here’s the thing — those memos aren’t about how not to violate Section 2340 of the U.S. Criminal Code — they’re about framing language so as to ensure that the Bush Administration’s actions could be justified as not violating the statute.
Maybe Ms. Cheney should consider changing her new group’s name to reflect its real purpose.
Something along the lines of “Keeping Daddy Safe from Prosecution.”
The Nobel Committee’s unexpected announcement that President Obama would receive this year’s Peace Prize was an extraordinarily atypical choice. Not since the Committee awarded the 1971 prize to Willie Brandt, Chancellor of the Federal Republic of Germany (in recognition of his Ostpolitik strategy, which sought to engender a rapprochement between East and West Germany but which had not yet borne fruit) had the committee chosen hope over results. Obama can only hope that the Committee’s optimism proves as prophetic as it did in the case of Brandt.
I would have prefered that the Committee select a human rights activist this year, particularly given the large number of candidates who are more than worthy of the honor. In addition, Obama’s pragmatic approach to foreign policy has, at least to date, de-emphasized human rights in favor of other (albeit legitimate) goals. When Secretary of State Hillary Clinton said before her first trip to China that human rights would not be on the agenda, it set off alarm bells in the human rights community. Obama’s recent decision not to meet with the Dalai Lama during the latter’s recent trip to the United States didn’t help, nor did the Administration’s recent moves toward ending past Administrations’ policies of isolating Burma.
In each of these cases, pragmatists can make a plausible argument that human rights must take a back seat. The problem is that when human rights regularly finds itself not only in the back seat but the rear view mirror, those risking their freedom (and sometimes their lives) to bring about peaceful change in their countries might start wondering whether the United States intends to remain their advocate and friend.
So in the spirit of hope — and acknowledging that, in our opinion, Obama will prove himself worthy of the honor here are five individuals/groups who could have benefitted much more than the President:
Saad Ibrahim, a renowned human rights activist and professor of sociology at the American University in Cairo. Ibrahim is best-known leader of the Egyptian human rights movement and has helped inspire human rights movements throughout the Arab world. Over the past thirty years, Ibrahim has spent countless months and years in jail. He founded the Ibn Khaldun Center for Development Studies, which focuses on democratization and political and social development. Ibrahim and his colleagues were jailed once again in 2001 on trumped-up charges. Ibrahim left Egypt in 2007, after serving 10 months of a seven-year sentence, when he obtained a foreign grant to study abroad. In May 2009, an appeals court overturned his conviction and he returned to Egypt just two weeks before President Obama delivered his ground-breaking speech in Cairo.
Mir-Hussain Moussavi and the Iranian people. As a candidate for President of the Islamic Republic of Iran during June 2009 elections, Moussavi found himself in the middle of a sudden peaceful uprising dominated by young Iranian voters after official election bodies and Supreme Leader Ayatollah Ali Khamenei quickly declared incumbent Mahmoud Ahmadinejad the winner. What took place in the days and weeks that followed, captured the imagination of the entire world, if not the Iranian government. Iranians went into the streets by the thousands to protest what appeared to be a rigged election for Ahmadinejad. Persuaded that change was truly afoot, Moussavi grabbed the reins of leadership by urging daily protests, joining many of them, protected by others who feared he would be arrested. The protests continued, hundreds have been arrested and jailed. But when an Iranian police sniper murdered Neda, the protests escalated with crowds chanting her name. (Historically, the Prize has not gone to the deceased.)
Dr. Sima Samar, a physician and women’s human rights activist from Afghanistan, who is the Chairperson of the Afghanistan Independent Human Rights Commission, and since 2005, the UN Special Rapporteur on the situation of human rights in Sudan. Since the Soviet occupation in Afghanistan, Dr. Samar has been working on behalf of the women and children. After losing her husband when fleeing the Soviets in 1987, Samar established ten clinics and four hospitals for women and children, as well as schools, serving more than 17,000 students. She worked in refugee camps for diplaced Afghanis, distributing food aid, information on hygiene, and family planning. She has been quoted as saying: “I’ve always been in danger, but I don’t mind. I believe we will die one day so I said let’s take the risk and help somebody else.”
Morton Tsvangirai, the prime minister of Zimbabwe, entered a sharing power agreement in February 2009 with controversial President Robert Mugabe after fighting against him and his despotic rule for ten years as the leader of the Movement for Democratic Change. Mugabe’s despotic rule of Zimbabwe has produced a society increasingly in chaos, including a destroyed economy that had such high inflation that one of Tsvangirai’s first acts was replacing the Zimbabwean dollar with the U.S. one. Only seven days following his election to the prime minister-ship, Tsvangirai’s wife of 31 years and his closest political advisor, Susan Tsvangirai, was killed in a car crash that is believed to have been orchestrated by Mugabe. Tsvangirai has a tough path to cut for bedraggled Zimbabweans, especially with Mugabe loyalists controlling the attorney general’s office and all security mechanisms. Yet since he has taken over the reins of government, industrial production jumped to the highest levels in years, evidenced by an economy that grew by 3.7 percent in the past year, according to the World Bank.
I do hope Obama is true to his promise that he will accept the Nobel for all those around the world who walk, march and agitate for justice and will continue to honor these brave souls in words, but also by his deeds.
What about those who approved of [torture]? If accountability is the standard, then it should apply to the policymakers and not just to the underlings. Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock?
So the White House has decided to oppose release of additional photos that reportedly show additional evidence of shocking practices. President Obama:
“The publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals,” Obama said yesterday. “In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in danger.”
I am somewhat sympathetic to this argument — I don’t want the troops put in additional danger, and heaven knows we don’t need Iraq or the rest of the Middle East to blow up right now. But I also thought about another set of photos, which also did not put the United States in the best light.
For those not familiar with the context, this is a shot of peaceful civil rights demonstrators in Birmingham, Alabama in 1963. The Birmingham police used fire hoses and dogs against them, a response that provoked such great outrage that it led directly to the Civil Rights Act of 1964.
I want to acknowledge it’s not a perfect analogy. But photos like the one above seriously damaged America’s reputation and credibility in the world, so much so that President Johnson acknowledged that America’s tarnished image was one of many reasons that the United States government had to do everything it could to reverse its racist legacy.
Back then, a small group of political leaders didn’t see it that way. They continued to make the case, in any public forum available, that the President’s actions were contrary to American interests and put many Americans at risk. Some even went on the tee vee to question Johnson’s patriotism.
Johnson chose not to listen to them, and thanks to his (and Congress’s) courage and leadership, their racist apologias did not carry the day.
The torture photos are probably shocking, though Obama himself says that they’re not as shocking as what we saw five years ago (which, as Spencer Ackerman notes, is not exactly consistent with his suggestion that it could endanger our troops). They would, undoubtedly, inflame public opinion.
But isn’t that the point? Isn’t the idea here to shine the light on these heinous practices so that America will never again put itself in a position to repeat its mistakes?
Sadly, unlike Johnson, Obama has chosen not to use this moment to issue a clarion call for justice. He has decided to defer to torture apologists in the name of not inflaming world opinion.
It’s a mistake — and a tragedy. Any short-term impact on world public opinion is nothing compared to the long-term impact of not telling the full truth about what the United States did — and then taking action to ensure that it never happens again.
That’s what Johnson did. Sadly, Obama appears unwilling to do the same. That’s not pragmatism. It’s not change. It’s just weak.
Let’s be clear here. This isn’t actually about abortion. When Sam Brownback or Ben Nelson say they’re not going to support Johnsen because she was counsel at NARAL, I don’t really have a problem with that. They’re pro-life and they have the right to their (consistent) opinion.
But Specter has been pro-choice all through his career. His opposition to Johnson’s position on abortion is nothing more than a beard, a means by which he’s hiding his real discomfort: her outspoken opposition to torture.
Pathetic.
Apparently it’s asking Specter too much to be consistent with his stated principles.
Again I ask: why were we happy to have this guy join the Democratic Party? Run, Sestak, Run.
You gotta love House Republicans. Why appeal to reason when you can go straight to scare tactics?
Sheesh, all that’s missing is Jack Bauer.
What the GOP seems to be suggesting is FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR FEAR.
But that’s just a guess.
Set aside, if you can, the action movie soundtrack and the slick production values.
Set aside — as hard as it may be — that the night vision video of U.S. troops kicking down doors is in all likelihood from Iraq, which as even (most) Republicans now admit, had absolutely nothing to do with 9/11.
Set aside the questions you may want to ask in return, like “How does torturing people make us safer?” Or “How did Abu Ghraib make us safer?” Or, even better, “How did invading Iraq make us safer?”
Instead, ask the GOP just one question.
Where’s Osama?
Why is it that you can’t show him in the video?
Oh wait, that’s right. You got busy in Iraq and forgot to catch him.
Heckuva job there, GOP.
One other thing: the Democrats have an answer to this stupid, stupid fear-mongering: as many Republicans, including John McCain and Robert Gates, have acknowledged, closing Guantanamo makes us safer because it eliminates one of al Qaeda’s most effective recruiting tools.
This video and the recent Republican attacks on Guantanamo are more desperate attempts from a demoralized party to politicize national security and the safety of the American people. But what is more disturbing is their brazen use of imagery and the memory of 9/11 to score political points. Thousands of Americans tragically died that day, and for the GOP to think it can win elections by denigrating their memory is disgraceful.
The difference between these Republican videos and the very terrorist propaganda that seeks to damage our society is negligible. Each attempt to stoke the embers of fear in order to disrupt American life. Just as al Qaeda videos should be viewed as misguided rants from a small group of marginalized radicals, so too should these Republican videos be equally dismissed. As opposed to what the GOP thinks, the American people are not that naïve.
RICE: The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against torture. So that’s — and by the way, I didn’t authorize anything. I conveyed the authorization of the administration to the agency. That they had policy authorization subject to the Justice Department’s clearance. That’s what I did.
STUDENT: Okay. Is waterboarding torture?
RICE: I just said — the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so, by definition, if it was authorized by the president, it did not violate our obligations under the Conventions Against Torture.
Setting aside the Condi’s utter disconnect from reality here (and the utter condescension — “do your homework first”), who told us that nothing violates our obligations under the Convention against Torture? And you needed to be told it was okay to torture? Doesn’t that imply that you had doubts?
And if not, why not? Do you really believe the ends justify the means? And if so, when do the ends not justify the means? Where’s the spot on this slippery slope Condi would have us try to stop?
There are several other problems here. First, in my reading of the torture memos (which, I want to acknowledge was a few weeks ago), there was no attempt to discuss whether the proposed techniques violated the Convention against Torture — it was about Section 2340 of the U.S. Criminal Code, which is the specific law prohibiting torture.
Second, in attempting to deny her own complicity, The Condi notes that she transmitted the findings of the Justice Department to the CIA. That means there must be a cover memo somewhere. Which means she’s part of the food chain. Which means that she broke Section 2340 of the U.S. Criminal Code.
There’s been a movement for quite a while now to encourage the University of California-Berkeley to fire John Yoo, and more recently a call for the impeachment of Jay Bybee. Isn’t it time we encourage Stanford to fire Condi as well?
BTW, kudos to these kids, who had the guts to raise questions that no mainstream journalist has bothered to ask.
The following is a reposting of something I wrote back in July, when word first leaked that the Bush Administration had used techniques first developed by the Chinese. Given today’s news, I think it’s worth repeating today.
We’ve all heard the whispers. Every four years, the extreme right starts suggesting that the current Democratic candidate for President is a traitor. He’s not a patriot, they say — he’s actually a Communist/athiest/internationalist/Muslim.
Every four years, they find a new variation on this theme: Bill Clinton was recruited by the Soviets when he visited the USSR. Al Gore will cede American sovereignty to the United Nations. John Kerry was recruited by the Viet Cong during the war. Barack Obama was recruited by a Muslim terror cell while attending an Indonesian madrasa. It’s just like that movie — you know – The Manchurian Candidate.
Today, we found out who the real Manchurian Candidate really was: George W. Bush.
No, I’m not suggesting that our President was kidnapped or brainwashed by anyone. It’s actually much worse than that. He’s not Laurence Harvey — he’s Angela Freaking Lansbury.
The military trainers who came to Guantánamo Bay in December 2002 based an entire interrogation class on a chart showing the effects of “coercive management techniques” for possible use on prisoners, including “sleep deprivation,” “prolonged constraint,” and “exposure.”
What the trainers did not say, and may not have known, was that their chart had been copied verbatim from a 1957 Air Force study of Chinese Communist techniques used during the Korean War to obtain confessions, many of them false, from American prisoners.
The recycled chart is the latest and most vivid evidence of the way Communist interrogation methods that the United States long described as torture became the basis for interrogations both by the military at the base at Guantánamo Bay, Cuba, and by the Central Intelligence Agency.
You read that correctly: our government authorized the use of techniques developed by the Chinese to torture American servicemen in Korea. And as Andrew Sullivan points out today, the North Vietnamese adopted a similar approach in Vietnam — meaning that they were used on John McCain.
That’s awful enough. But here’s the kicker. As Matt Yglesias notes,
[T]he main purpose of these Chinese torture techniques was to elicit false confessions. That’s not very surprising as the main use of torture in interrogations has always been to elicit false confessions.
But still, to literally rip your techniques off from a study called “Communist Attempts to Elicit False Confessions from Air Force Prisoners of War” requires some level of obliviousness I wasn’t aware of. Or else maybe they were looking for false confessions?
There really are only two conclusions here. Either the Bush Administration is mind-bendingly stupid, or they are unconscionably evil. Then again, there is one more possibility: they’re both. But regardless of which of these equally distressing options is correct, one thing is crystal clear: they are a cancer on our values and our freedoms.
How can any conservative support a regime whose policies represent the absolute antithesis of the values of those who fought and often died to defeat communism?
How could anyone with a conscience support a government that steals the methods of our former enemies — whoused them againstour own soldiersto force false conventions — and then applies them to “extract” the truth?
For a long time, I resisted those who called Bush, Cheney, and their cronies evil. I criticized those who demanded their impeachment, arguing that it would only garner them sympathy.
Not anymore. Impeach them. Better yet, indict them. Prosecute them for war crimes and crimes against humanity. And then toss them into jail and throw away the key.
In a series of high-level meetings in 2002, without a single dissent from cabinet members or lawmakers, the United States for the first time officially embraced the brutal methods of interrogation it had always condemned.
This extraordinary consensus was possible, an examination by The New York Times shows, largely because no one involved — not the top two C.I.A. officials who were pushing the program, not the senior aides to President George W. Bush, not the leaders of the Senate and House Intelligence Committees — investigated the gruesome origins of the techniques they were approving with little debate.
According to several former top officials involved in the discussions seven years ago, they did not know that the military training program, called SERE, for Survival, Evasion, Resistance and Escape, had been created decades earlier to give American pilots and soldiers a sample of the torture methods used by Communists in the Korean War, methods that had wrung false confessions from Americans.
Even George J. Tenet, the C.I.A. director who insisted that the agency had thoroughly researched its proposal and pressed it on other officials, did not examine the history of the most shocking method, the near-drowning technique known as waterboarding.
The top officials he briefed did not learn that waterboarding had been prosecuted by the United States in war-crimes trials after World War II and was a well-documented favorite of despotic governments since the Spanish Inquisition; one waterboard used under Pol Pot was even on display at the genocide museum in Cambodia.
They did not know that some veteran trainers from the SERE program itself had warned in internal memorandums that, morality aside, the methods were ineffective. Nor were most of the officials aware that the former military psychologist who played a central role in persuading C.I.A. officials to use the harsh methods had never conducted a real interrogation, or that the Justice Department lawyer most responsible for declaring the methods legal had idiosyncratic ideas that even the Bush Justice Department would later renounce.
The process was “a perfect storm of ignorance and enthusiasm,” a former C.I.A. official said.
A lot of this isn’t new — again, Jane Mayer reported it in The Dark Side. But it’s appalling to think that American officials made the decision to torture without making any effort to learn what they were doing. As Mayer noted in her Google talk, this was as much about retribution as it was about information.
We all knew it was bad. We even had the gut feeling it was this bad. But no one expected it would be this stupid.
Trying to catch up on all the new info coming out on torture, including the Senate Armed Services Committee Report and the right’s response. It is, frankly, a bit overwhelming, especially given the fact I’m not a full-time blogger.
That said, I think we’re beginning to see a level of outrage worthy of the crimes. The Obama Administration is going to have a very difficult time preventing prosecutions and/or a Congressionally sanctioned truth commission.
In addition, I am struck by how much of what is coming out confirms Jane Mayer’s The Dark Side. It’s still worth reading. As Mayer herself notes, there is new info, but she reported not only the framework, but also many of the details.
If you have the time, watch Mayer’s talk at Google last year (warning — the interviewer is inane, but it’s still worth it):
Think Progress has started a petition campaign urging Members of Congress to consider impeaching Ninth Federal Circuit Judge Jay Bybee, who was the author of several of the Bush Administration memos released by the White House last week. Here’s the image they’re using:
The gavel over Bybee’s head is a bit much — after all, Think Progress, you want to impeach the guy because he favored whacking other people on the head — but it’s good that they’re trying. You can find the link to the petition here. The New York Timesalso has called for his impeachment:
[The] investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.
These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.
After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability.
To be clear, Bybee deserves a full and fair hearing. But it would be a travesty were Congress to take no action. The question, I think, isn’t whether someone will take the steps necessary for the House to begin hearings. The question is whether the right person will do so. To put it bluntly, if it’s Dennis Kucinich or John Conyers, we can forget about Congress taking the effort seriously.
For most of his career, John McCain has been an outspoken advocate against torture. So you would think that Senator McCain would have cheered the White House’s decision to release the torture memos.
McCain says he wishes that the Bush Administration had abided by the Detainee Treatment Act, of which he was the principal sponsor. He describes waterboarding as “unacceptable” and “torture, period.” He notes that those tortured will tell an interrogator “whatever they want to hear.” He says that it’s a great “recruiting tool” for al Qaeda and other terrorist groups. He says that it doesn’t matter whether the Administration got useful intelligence from torture because of the resulting damage to America’s reputation around the world.
But he also says that the release of the memos “Helps no one.” He says that it “doesn’t help America’s image.” He says that their release “does not help address the issue. He believes that “it was a serious mistake to release these memos.”
So on one hand, Senator McCain believes that torture has hurt America’s reputation in the world and that it has encouraged our enemies. On the other, he believes that offically acknowleging torture will hurt America’s reputation in the world and that it will encourage our enemies.
I wanted to give Senator McCain the opportunity to clarify his remarks. I contacted his office, which promptly returned my call. But despite my repeated efforts to get additional information, his office provided only the following statement, and only on background (meaning that no one was willing to be quoted):
Senator McCain’s position has been clear, he led the fight on the detainee treatment act, and this sort of conduct shouldn’t have happened in the first place.
That really doesn’t answer the question: Why has Senator McCain has chosen to criticize the Obama Administration’s decision to release the memos as potentially damaging to U.S. interests when he also argues that torture already has damaged American interests.
To put it another way, how can acknowledging the facts somehow be as bad as the facts themselves?
McCain’s decision to continue to defend the actions of the Bush Administration is especially mystifying given that Administration’s past disregard for his opinion. In October 2007, The New York Times obtained two Justice Department memos authorizing waterboarding and other techniques (both of which were among those released by the Obama Administration). In response, McCain told MSNBC that he was
personally assured by administration officials that at least one of the techniques allegedly used in the past, waterboarding, was prohibited under the new law.
Throughout these debates, I have said that it was not my intent to eliminate the CIA interrogation program, but rather to ensure that the techniques it employs are humane and do not include such extreme techniques as waterboarding. I said on the Senate floor during the debate over the Military Commissions Act, “Let me state this flatly: it was never our purpose to prevent the CIA from detaining and interrogating terrorists. On the contrary, it is important to the war on terror that the CIA have the ability to do so. At the same time, the CIA’s interrogation program has to abide by the rules, including the standards of the Detainee Treatment Act.” This remains my view today.
When, in 2005, the Congress voted to apply the Field Manual to the Department of Defense, it deliberately excluded the CIA. The Field Manual, a public document written for military use, is not always directly translatable to use by intelligence officers. In view of this, the legislation allowed the CIA to retain the capacity to employ alternative interrogation techniques. I’d emphasize that the DTA permits the CIA to use different techniques than the military employs, but that it is not intended to permit the CIA to use unduly coercive techniques – indeed, the same act prohibits the use of any cruel, inhumane, or degrading treatment. . . .
This necessarily brings us to the question of waterboarding. Administration officials have stated in recent days that this technique is no longer in use, but they have declined to say that it is illegal under current law. I believe that it is clearly illegal and that we should publicly recognize this fact. In assessing the legality of waterboarding, the Administration has chosen to apply a “shocks the conscience” analysis to its interpretation of the DTA. I stated during the passage of that law that a fair reading of the prohibition on cruel, inhumane, and degrading treatment outlaws waterboarding and other extreme techniques. It is, or should be, beyond dispute that waterboarding “shocks the conscience.”
It is also incontestable that waterboarding is outlawed by the Military Commissions Act, and it was the clear intent of Congress to prohibit the practice. The MCA enumerates grave breaches of Common Article 3 of the Geneva Conventions that constitute offenses under the War Crimes Act. Among these is an explicit prohibition on acts that inflict “serious and non-transitory mental harm,” which the MCA states “need not be prolonged.” Staging a mock execution by inducing the misperception of drowning is a clear violation of this standard. Indeed, during the negotiations, we were personally assured by Administration officials that this language, which applies to all agencies of the U.S. Government, prohibited waterboarding.
It is unfortunate that the reluctance of officials to stand by this straightforward conclusion has produced in the Congress such frustration that we are today debating whether to apply a military field manual to non-military intelligence activities. It would be far better, I believe, for the Administration to state forthrightly what is clear in current law – that anyone who engages in waterboarding, on behalf of any U.S. government agency, puts himself at risk of criminal prosecution and civil liability.
If we are to believe Senator McCain, Bush Administration officials looked him in the eye. The first time, in October 2007, they told him that such practices had stopped. The second time, in early 2008, they told him specifically that they no longer waterboarded — but continued to regard such practices as legal.
Let’s not beat around the bush here. On at least two occasions, the Bush Administration flat-out lied to Senator McCain. They told him they weren’t doing what they were doing. And he not only believed them, he publicly defended them.
Making this even odder is that in April 2008, McCain acknowledged to Time magazine’s Michael Scherer that that he did not know the details of the Bush Administration’s policies “any more than is available to non-members of the Intelligence Committee.” That means that when he was accepting the Bush Administration’s assurances, he had no idea what they were doing.
I don’t know whether Senator McCain is angry about this. I would hope so. But given his only public statement (and his office’s subsequent unwillingness to answer my questions), we have no way of knowing.
In the past, critics of the Senator have suggested that his willingness to accept the Bush Administration’s promises was a product of his ambitions — that he was willing to set aside his principled opposition to torture in order to become President.
But that theory doesn’t explain why Senator McCain continues to defend the Administration now that he no longer is a candidate.
Let me repeat my question. Why does Senator McCain now believe that acknowledging the facts is somehow more damaging than the facts themselves?
One possible answer is that this is not about the torture memos.
Senator McCain does not want to acknowledge that he was duped. He does not want to credit the Obama Administration for achieving what he could not — an end to the Bush Administration’s torture regime. He does not want to admit that he was could not prevent our (and his) worst fears from becoming a harsh reality.
I sincerely hope that there is another answer, one that will end the contradiction between John McCain the anti-torture champion and John McCain the Bush Administration apologist. But until we hear more than platitudes and apologies from the Senator himself, we will have to assume the worst.
The worst part: Karl Rove saying that “All these techniques have been ruined” — as if we invented techniques like waterboarding and “walling.” No, Turdblossom, the only thing that has been ruined is AMERICA’S REPUTATION.
In fairness to Stewart, he’s a humorist. In the past, however, he has managed to convey his outrage without trying to be funny — a good recent example is his confrontation with Jim Cramer. And when Stewart gets angry, he is less a comedian than he is a satirist in the best tradition of Swift, Twain, Orwell, and Carlin.
Torture is a subject worthy of that level of anger — and for once, Stewart failed to match his best work..
To be clear up front, this is not for your amusement. But you should watch it anyway:
Kudos to this guy for using his art to expose the banality of evil. Go to this page and give him the hits and props he deserves.
Here are the lyrics:
the detainee is lying on a gurney
that’s inclined at an angle: 10 to 15 degrees
a cloth is placed over the detainee’s face
cold water is poured on the cloth
the wet cloth creates
a barrier through which
it is difficult or in some cases not possible
for the detainee to breathe
if the detainee
makes an effort to defeat the technique
by twisting his head to the side and breathing
out the corner of his mouth
the interrogator may cup his hands around
the detainees nose and mouth
in which case it would not be posible for him to breathe!
As we explained
in the Section 2340A Memorandum,
“pain and suffering”
(as used in Section 2340)
is best understood as a single concept,
not distinct concepts
of “pain” as distinguished from “suffering”…
The waterboard, which inflicts no pain or actual harm whatsoever,does not, in our view inflict “severe pain or suffering”. Even if one were to parse the statute more finely to treat “suffering” as a distinct concept, the waterboard could not be said to inflict severe sufering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.
“The section 2340A memorandum to which he refers is this one. Its main justification is to find a way to explain how the Administration, in torturing, was not breaking a law explicitly banning torture.
When we reach the point that a bureaucrat can issue a memo justifying the breaking of a law explicitly banning a given act, we’re damn close to lawlessness.
Attorney General Candido Conde-Pumpido said Thursday the claim against officials in former President George W. Bush’s administration is fraudulent, CNN reported. The matter was presented by a human rights group and provisionally accepted by a Spanish court pending the prosecutor’s opinion.
If a claim were to be investigated, it should be pursued by the United States so the former officials would have the opportunity to defend themselves in the U.S. court system, Conde-Pumpido said through his press secretary.
That’s good news for the Obama Administration. But here’s hoping it will pay attention to the reason why the Spanish are not pursuing the case — because it’s our responsibility.
President Obama has made it clear that he is uninterested in prosecuting those responsible for torture.
In at least one case, there is another option.
Jay Bybee, under whose name several of the torture memos appear, is now a federal judge on the 9th Circuit. As Yglesias notes,
I think the case for impeaching him on the grounds of misconduct would be pretty clear. And though as Jonathan Zasloff says, he could almost certainly round up enough pro-torture votes in the Senate to avoid removal, it’s at least something folks can be put on the record about.
Lacking enough votes didn’t stop Republicans from impeaching Bill Clinton. It shouldn’t stop Democrats from impeaching Bybee.
And frankly, were it to come to that, I think more than a few Republicans would hesitate to vote against removing someone who authorized torture. It would take seven Republicans (or eight if Franken is not yet seated) to convict.
Lindsay Graham has spoken out strongly against torture. Orrin Hatch has as well. Mel Martinez and Sam Brownback are retiring. McCain alone could bring more were he to speak out as forcefully on this as he has on other torture issues.
In other words, unlike Yglesias and Zasloff, I think it’s a plausibility.
“You asked me once,” said O’Brien, “What was in Room 101. I told you that you knew the answer already. Everyone knows it. The thing that is in Room 101 is the worst thing in the world.”
“In your case,” said O’Brien, “the worst thing in the world happens to be rats.”
The door opened again. A guard came in, carrying something made of wire, a box or basket of some kind. He set it down on the further table. Because of the position in which O’Brien was standing. Winston could not see what the thing was.
“The worst thing in the world,” said O’Brien, “varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal.”
He had moved a little to one side, so that Winston had a better view of the thing on the table. It was an oblong wire cage with a handle on top for carrying it by. Fixed to the front of it was something that looked like a fencing mask, with the concave side outwards. Although it was three or four metres away from him, he could see that the cage was divided lengthways into two compartments, and that there was some kind of creature in each. They were rats.
There are no words for how appalling it is that our government — our government — approved the use of techniques that not only replicate those used by the world’s worst dictatorships, but also freinvented the worst nightmare that George Orwell, our poet-laureate of totalitarianism, could possibly imagine. As one commenter on Hilzoy’s post noted, “Some people read 1984 and think of it as a warning. For others, it is a training manual.”
[W]hen I speak of the banality of evil, I do so only on the strictly factual level, pointing to a phenomenon which stared one in the face at at [Eichmann's] trial. . . Except for an extraordinary diligence in looking out for his personal advancement, he had no motives at all. And this diligence in itself was in no way criminal; he certainly would never have murdered his superior in order to inherit his post. He merely. . .never realized what he was doing. . . . He was not stupid. It was sheer thoughtlessness. . . .
We had heard the protestations of the defense the Eichmann was after all only a “tiny cog” in the machinery of the FInal Solution, and of the prosecution, which believed it had discoverd in Eichmann the actual motor. . . . In its judgment, the court naturally conceded that such a crime could be committed only by a giant bureaucracy using the resources of a government. But insofar as it remains a crime — and that, of course, is the premise for a trial — all the cogs in the machinery, no matter how insignificant, are in court forthwith transformed back into perpetrators, that is to say, into human beings.
If the defendant excuses himself on the ground that he acted not as a man but as a mere functionary whose functions could just as easily have been carried out by anyone else, it is as if a criminal pointed to the statistics on crime — which set forth that so-and-so many crimes per day are committed in such-and-such a place. . . and declared that he not only did what was statistically expected, that it was mere accident that he did it and not somebody else, since after all somebody had to do it.
To be clear, I am not suggesting that those responsible for implementing the policies outlined in these memos are Nazis or Soviets or their contemporary equivalents. Despite the fevered imaginations of the far right (re Obama) and far left (re Bush), we remain a democracy in which citizens still enjoy considerable rights.
But to suggest that those who designed and implemented this policy should not be held responsible involves pretending that individuals — – human beings — played no role in the machinery of torture. That includes not only those who came up with the idea, but also those who developed the legal justification for it, those responsible for doing it, and — no matter how reprehensible these individuals’ crimes may be — those whose who were victims of it.
Taking — and demanding — responsibility is, after all, one of the fundamental tenets of every religious belief system. Those responsible for allowing this to happen must be held accountable. Yes, history will judge. But so should our legal system.
The question here is not what kind of society we are but rather what kind of society we aspire to be. Although we have often failed to live up to the vision of the founders, we always have believed that the better angels of our nature, to use Lincoln’s phrase, would overcome our darkest impulses.
In the end, however, our better angels cannot triumph if we do not acknowledge our mistakes. For that to happen, we must accept our own responsibility. Each and every one of us (by which I mean each and every American citizen) must recognize that we did not prevent the Bush Administration from implementing these practices. And even when we found out, we did nothing — or did not do enough — to stop it.
So in the end, who is responsible? Who is accountable?
The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law. . . .
But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.
First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs. . . .
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.
The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.
So what can we conclude from this?
1. The Administration has decided to release those documents that show how the torture regime came about. The docs are not yet out, and I’m guessing that parts will be redacted, but chances are that they will include further evidence of just how far down the road the Bush Administration went.
2. That said, it’s not clear clear the Administration would have released these memos without the ACLU lawsuit.
3. The Administration not only does not want to prosecute anyone, it does not want anyone else spending “time and energy laying blame for the past.” That means it will oppose any efforts to establish a Congressionally sanctioned investigative body modeled after the 9/11 Commission.
4. CIA Director Leon Panetta won the battle to grant immunity to line officers who implemented the Bush Administration’s torture regime. He did not, however succeed in preventing the memos from being released. It’s not yet clear the degree to which he was successful in getting them redacted.
5. It is an irony, but this probably will help Panetta’s efforts to reform the Agency and clean up some of the messes left by the previous Administration.
6. It remains unclear whether this decision will hinder what I assume are behind-the-scenes efforts to get the Spanish to walk back from their decision investigate six Bush Administration officials for torture. I suspect that my former colleagues in the human rights community will conclude that the chances of a domestic prosecution are now slim, and will push the Spanish courts to pursue this further.
7. If the Spanish court indicts any former Bush Administration officials, it will create more problems for Obama than any domestic investigation would have.
8. Given the the Spanish investigation, and given the fact that the memos may produce more outrage, there remains a chance that Congress will move to establish a Commission without the support of the Administration. You may remember that Congress created both the 9/11 Commission and the Iraq Study Group despite opposition from the Bush Administration. That said, I see no interest in Congress (beyond Patrick Leahy and a few others) to push for such a Commission.
9. The Administration’s actions today — particularly its announced intention not to pursue prosecutions — should have the effect of smoothing the path to the confirmation for Dawn Johnsen to head the OLC and Harold Koh to serve as Legal Adviser in the State Department.
10. This isn’t a game ender, but it is a game changer. No matter what those who want prosecutions may think, most Americans are tired of anything that requires them to reflect on the Bush Administration. There has never been the level of sustained public outrage about the Bush torture policies that we’ve seen in the case of those responsible for the economic crisis.
What do you think? If you haven’t yet, vote in our poll on what should happen next.
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UPDATE: Severalsources have reported that only the CIA agents’ names will be redacted.
One other thing: some in the media are saying that Obama has granted immunity to those who implemented the Bush Administration’s policies. Unless I’m mistaken (and please tell me if I am), the only power the President has is to pardon them. His administration can choose not to prosecute, and to oppose any attempt by others to do so, but the President does not have the power to grant immunity per se.
Scott Horton over at the Daily Beast reports that Spanish prosecutors are undertaking an investigation that may lead to the criminal indictment of six Bush Administration officials: Alberto Gonzales, John Yoo, Jay Bybee, David Addington, William Haynes, and Douglas Feith. Horton:
The six defendants. . .are accused of having given the green light to the torture and mistreatment of prisoners held in U.S. detention in “the war on terror.” The case arises in the context of a pending proceeding before the court involving terrorism charges against five Spaniards formerly held at Guantánamo. A group of human-rights lawyers originally filed a criminal complaint asking the court to look at the possibility of charges against the six American lawyers. Baltasar Garzón Real, the investigating judge, accepted the complaint and referred it to Spanish prosecutors for a view as to whether they would accept the case and press it forward. “The evidence provided was more than sufficient to justify a more comprehensive investigation,” one of the lawyers associated with the prosecution stated. . . .
The Spanish prosecutors advised the Americans that they would suspend their investigation if at any point the United States were to undertake an investigation of its own into these matters. They pressed to know whether any such investigation was pending. These inquiries met with no answer from the U.S. side.
Oh boy. This is not good news for the Obama Administration.
Let me be clear here. I want to see these guys investigated, and if the evidence is there (which I believe it is), they should be prosecuted. I’d like nothing better than for Patrick Fitzgerald to convene a grand jury, conduct an investigation, and throw the book at Addington, Yoo, and the rest. In fact, I’d encourage them to move beyond the Spanish list to include Bush, Cheney, Ashcroft, Tenet, and a few others.
Furthermore, as Hilzoy points out, the United States is a party to the Convention on Torture, which obligates the United States to prosecute those accused of committing torture. None of the existing U.S. reservations or understandings excludes the possibility of the U.S. prosecuting its own citizens for torture — in large part because no one in their right mind ever imagined that torture would become U.S. policy. Oh, and one other thing: torture is also against the law here in the United States, so even if the CAT didn’t apply, the Obama Administration would still be obligated to enforce existing law.
So throw the book at them.
But please, let’s make sure it’s an American one.
I don’t think it advances American interests, human rights, or international justice for this investigation to go forward. If the Obama Administration is smart, it will send a very strong signal that this is a bad idea, that it is looking at options, and that the decision as to whether to prosecute Bush Administration officials is one that the U.S. criminal justice system — and not a Spanish court — should pursue.
There are several reasons I feel this way.
The first is the principle of complementarity, which since the International Criminal Court treaty entered into force, is international law. From the Rome Treaty:
[The] International Criminal Court. . .shall be complementary to national criminal jurisdictions. . . . [T]he Court shall determine that a case is inadmissible where. . .the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. . .
To be clear, this is a Spanish Court, not the ICC, and in fairness to the Spanish, they’ve made clear that they’ll step aside should the U.S. indicate an interest in pursing these guys. But the bottom line is that it’s not an active prosecution that is the baseline; it’s whether a state is unwilling or unable to prosecute.
This is a fundamentally different situation than other cases, such as the one involving the late and unlamented former dictator of Chile, Augusto Pinochet, who was prosecuted by the same Spanish court now investigating Bush Administration officials. Pinochet’s indictment came after repeated efforts to pursue cases in Chilean courts failed. In fact, it was only after Pinochet avoided prosecution and returned to Chile that Chilean officials were much more vigorous in their efforts to investigate and prosecute him for a variety of offenses.
There is [U.S.] jurisdiction over [allegations of torture] if—
(1)the alleged offender is a national of the United States; or
(2)the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
Both conditions apply to Addington et. al. Therefore the Spanish court should cede jurisdiction.
Third and perhaps most importantly, from a political perspective, this is an incredibly stupid thing to do to a new Administration that does not even have all its top legal experts in place. It puts the Obama Administration in a no-win situation, where it must either reject the Spanish effort to prosecute U.S. citizens accused of torture or allow a prosecution that will make its domestic and international agendas much more difficult.
If the Administration does the former, it will embolden human rights abusers the world over, who will argue that the United States is unwilling to go after its own violators. If it does the latter, it will embolden its domestic critics, who already are on the warpath about the judicial philosophies of several of its nominees.
Neither of those outcomes bring those responsible for designing the Bush-era policies any closer to justice. In fact, both would decrease significantly the chance that any serious effort to investigate the allegations and indict those responsible might happen someday.
The best course of action here is for the Spanish to announce that they are postponing their investigation in order to give the U.S. government the opportunity to examine whether evidence exists to pursue its own prosecution. At the same time, the Obama Administration should get behind the Patrick Leahy proposal for a commission modeled after the one that investigated U.S. decisionmaking leading up to 9/11 — not to forestall a prosecution but rather to find out whether there is enough information to pursue one.
There’s an old saying that justice delayed is justice denied. That’s true in most cases, but not all. Sometimes moving too quickly — or in the wrong venue — will harm a prosecution, not help it. The Spanish should keep this in mind as they decide their next step. And the Obama Administration needs to recognize that it no longer can pretend that ending the Bush Administration’s torture policies is not the same thing as investigating (and prosecuting) those responsible for them.
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