What To Do About The Bush Administration's Use of Torture
(updated below)
Eric Holder's confirmation as Attorney General is currently being held up by Senator John Cornyn (R-Tex). Hilzoy has the background here, but long story short, Cornyn wants Holder to promise not to prosecute Bush administration officials who may have tortured people or committed other illegal acts based on a good faith belief that what they were doing was legal. This is a ridiculous request for a number of reasons, all of which Hilzoy ably spells out, but I think the issue Cornyn is highlighting is one that people who favor prosecution of these folks ought to think about carefully.
I don't mean to suggest that we should let everyone off the hook who can validly claim to have been following orders (we didn't accept that defense at Nuremberg, after all), but there are some important legal and moral distinctions to be made here, as well as some practical considerations. First, on a purely moral level, surely the people who ordered the torture and drafted the legal opinions allowing for it are more culpable than those who merely followed those orders and relied on that legal advice. And we know that these orders came from the highest level--from Cheney, Bush and Rumsfeld--and were blessed by the administration's top lawyers--Yoo, Bybee, Addington.
Is it realistic to expect the Obama DOJ to prosecute these folks? As much as I'd like to see that, it would instantly generate a partisan firestorm. Fair or not, Republicans would portray the prosecutions as a vindictive partisan witch hunt against True Patriots and would devote every waking breath to defending the accused and attacking the proceedings. They would assemble an unprecedented dream team of lawyers who would throw all kinds of dust in the air, obscuring the issues and dragging out the prosecutions. And at the end of the ordeal, convictions would be very very difficult to secure. The most likely end result would be acquittals that would be spun by Republicans (and a pliant media) as vindication of everything the Bush administration did.
The same scenario would likely play out (albeit at a lower volume) if the DOJ attempts to prosecute lower level players, with the added problem that they will have much stronger defenses, having relied on the various OLC opinions that were issued during the Bush administration. And again, their acquittals would be spun as vindication of the entire torture regime. And even if they were somehow convicted, the result would be the punishment of people who were following orders and relying on OLC opinions but not the people who gave the orders and drafted the opinions themselves, a result which strikes me as being fundamentally unjust (the exception, of course, would be instances where lower level officials went beyond what they were authorized to do; in a such a case, their prosecution wouldn't raise the same concerns).
All of this is a long-winded way of saying that I think the best option here is something along the lines of the "Truth Commission" proposals that have been bandied about. What I want is a thorough, official investigation that exposes all the facts and, ideally, issues an official report declaring that the Bush administration violated the law, identifying the primary culprits, and condemning--in the strongest words possible--their actions.
That would at least keep these acts from being swept under the rug and would inflict some much deserved reputational harm on those responsible for them. That kind of strong, public condemnation may be enough to deter future administrations.
I fear that if we try to do anything more than that, by launching actual prosecutions, it may backfire and result in acquittals. I completely sympathize with those who favor war crimes prosecutions. The conduct at issue here rises to that level and those responsible for it certainly deserve such treatment. But practical concerns do matter. War crimes prosecutions would serve no useful purpose if they result in acquittals which are then spun by the Republicans and the media as vindication for the conduct itself. The goal here should not be maximal punishment, but maximal deterrence.
UPDATE: Lots of disagreement in the comments. Let me make two points. First, as Hilzoy points out in the comment section, the only way prosecutions could possibly work if this process is outsourced to some sort of independent counsel, someone like Patrick Fitzgerald. The process would still end up being highly politically charged, but that's the only way such a prosecution would be remotely politically feasible. My problem with that plan is that whatever evidence the IC turns up in the investigation will likely remain confidential due to grand jury secrecy rules. And any prosecutions that result are likely to be very circumscribed and narrow (much like Libby's trial was limited to the issue of his lying under oath, not the underlying leak).
Second, I think that many people underestimate how incredibly difficult it would be to prove any high level Bush administration official guilty of war crimes in a court of law. The non-lawyers (people like Bush, Cheney, and Rumsfeld) will point to the fact that all of their orders and directives were given the legal blessing of DOJ lawyers, lawyers who graduated from Yale and Harvard and currently hold faculty positions at prestigious law schools. They'll bury the court in an avalanche of motions to dismiss and to suppress evidence, trotting out every conceivable constitutional or executive privilege objection. And they'll parade in witnesses to testify about the dire threats they were facing and all the legal advice they sought and received. Convictions would be enormously difficult.
As for the lawyers themselves (Yoo, Addington, etc.), while I think they are the most to blame in this mess, it's hard to see how they could be prosecuted criminally. They didn't order anything or engaged in any acts of torture. They just provided really bad legal advice. But it's the same stuff they write law review articles about, so it's hard to see how you can make a criminal case out of it. They'll just claim they interpreted the law differently than others.
I realize that a lot of you think a "Truth Commission" is insufficient. But isn't it preferable to a series of high-profile acquittals?
Eric Holder's confirmation as Attorney General is currently being held up by Senator John Cornyn (R-Tex). Hilzoy has the background here, but long story short, Cornyn wants Holder to promise not to prosecute Bush administration officials who may have tortured people or committed other illegal acts based on a good faith belief that what they were doing was legal. This is a ridiculous request for a number of reasons, all of which Hilzoy ably spells out, but I think the issue Cornyn is highlighting is one that people who favor prosecution of these folks ought to think about carefully.
I don't mean to suggest that we should let everyone off the hook who can validly claim to have been following orders (we didn't accept that defense at Nuremberg, after all), but there are some important legal and moral distinctions to be made here, as well as some practical considerations. First, on a purely moral level, surely the people who ordered the torture and drafted the legal opinions allowing for it are more culpable than those who merely followed those orders and relied on that legal advice. And we know that these orders came from the highest level--from Cheney, Bush and Rumsfeld--and were blessed by the administration's top lawyers--Yoo, Bybee, Addington.
Is it realistic to expect the Obama DOJ to prosecute these folks? As much as I'd like to see that, it would instantly generate a partisan firestorm. Fair or not, Republicans would portray the prosecutions as a vindictive partisan witch hunt against True Patriots and would devote every waking breath to defending the accused and attacking the proceedings. They would assemble an unprecedented dream team of lawyers who would throw all kinds of dust in the air, obscuring the issues and dragging out the prosecutions. And at the end of the ordeal, convictions would be very very difficult to secure. The most likely end result would be acquittals that would be spun by Republicans (and a pliant media) as vindication of everything the Bush administration did.
The same scenario would likely play out (albeit at a lower volume) if the DOJ attempts to prosecute lower level players, with the added problem that they will have much stronger defenses, having relied on the various OLC opinions that were issued during the Bush administration. And again, their acquittals would be spun as vindication of the entire torture regime. And even if they were somehow convicted, the result would be the punishment of people who were following orders and relying on OLC opinions but not the people who gave the orders and drafted the opinions themselves, a result which strikes me as being fundamentally unjust (the exception, of course, would be instances where lower level officials went beyond what they were authorized to do; in a such a case, their prosecution wouldn't raise the same concerns).
All of this is a long-winded way of saying that I think the best option here is something along the lines of the "Truth Commission" proposals that have been bandied about. What I want is a thorough, official investigation that exposes all the facts and, ideally, issues an official report declaring that the Bush administration violated the law, identifying the primary culprits, and condemning--in the strongest words possible--their actions.
That would at least keep these acts from being swept under the rug and would inflict some much deserved reputational harm on those responsible for them. That kind of strong, public condemnation may be enough to deter future administrations.
I fear that if we try to do anything more than that, by launching actual prosecutions, it may backfire and result in acquittals. I completely sympathize with those who favor war crimes prosecutions. The conduct at issue here rises to that level and those responsible for it certainly deserve such treatment. But practical concerns do matter. War crimes prosecutions would serve no useful purpose if they result in acquittals which are then spun by the Republicans and the media as vindication for the conduct itself. The goal here should not be maximal punishment, but maximal deterrence.
UPDATE: Lots of disagreement in the comments. Let me make two points. First, as Hilzoy points out in the comment section, the only way prosecutions could possibly work if this process is outsourced to some sort of independent counsel, someone like Patrick Fitzgerald. The process would still end up being highly politically charged, but that's the only way such a prosecution would be remotely politically feasible. My problem with that plan is that whatever evidence the IC turns up in the investigation will likely remain confidential due to grand jury secrecy rules. And any prosecutions that result are likely to be very circumscribed and narrow (much like Libby's trial was limited to the issue of his lying under oath, not the underlying leak).
Second, I think that many people underestimate how incredibly difficult it would be to prove any high level Bush administration official guilty of war crimes in a court of law. The non-lawyers (people like Bush, Cheney, and Rumsfeld) will point to the fact that all of their orders and directives were given the legal blessing of DOJ lawyers, lawyers who graduated from Yale and Harvard and currently hold faculty positions at prestigious law schools. They'll bury the court in an avalanche of motions to dismiss and to suppress evidence, trotting out every conceivable constitutional or executive privilege objection. And they'll parade in witnesses to testify about the dire threats they were facing and all the legal advice they sought and received. Convictions would be enormously difficult.
As for the lawyers themselves (Yoo, Addington, etc.), while I think they are the most to blame in this mess, it's hard to see how they could be prosecuted criminally. They didn't order anything or engaged in any acts of torture. They just provided really bad legal advice. But it's the same stuff they write law review articles about, so it's hard to see how you can make a criminal case out of it. They'll just claim they interpreted the law differently than others.
I realize that a lot of you think a "Truth Commission" is insufficient. But isn't it preferable to a series of high-profile acquittals?
posted by A.L. at 10:05 AM
52 Comments:
Respectfully, A.L., I disagree strongly.
I do not advocate wholesale prosecution in a circus atmosphere, but rather I believe that prosecutions must be strategic and carefully chosen. Something like the prosecution of the mafia is necessary, because the crime syndicate that the Bush administration became will require those methods to uncover and prosecute its crimes.
Once the DoJ under Holder has reviewed the evidence, they should pick a well-placed middle level official and prosecute, or if possible, turn them, and proceed from there to divide and separate the criminals from one another.
They'll never all be brought to justice, but our karma cries out for us to make the attempt.
These guys have to be investigated and charged if any inappropriate actions are discovered. But hey, what's the rush?
The way I see it, we need to pass new laws and bills concerning our present economic and foreign problems. We need the Repugs to get this stuff passed, and if Obama is the leader I think he is, we might be able to see the light at the end of the tunnel in the next couple of years.
At this time of "National need", any blatant obstruction by Repugs will be seen as such by most non-Republicans, and dilute whatever their brand currently stands for.
2010 S/B another good election for Dems. If I am correct about this, we may be on our way back economically, but politically, the Dems will hold a clear majority. At this point, it becomes bills, investigations, and prosecutions where necessary. Screw what is left of the Repug party and let America investigate if there were laws broken related to the constitution, and if so, prosecute them to the fullest limits of the law. America needs to show the world that as used to be, America is not above the laws of the world, or it's own Constitution, and will prosecute leaders if they have broken these laws.
First two years, laws, laws, laws! After 2010. laws, investigations, and if need be prosecutions.
As you do so often, AL, you sum up my position exactly. Its the republicans wet dream to have Obama try and prosecute bush and cheney. They could ignore actual, you know, PLANET-SAVING ISSUES and stall the rest of Obama's agenda in order to bring us back to that productive atmosphere that pervaded the last two years of the Clinton administration.
I agree, and have commented on several blogs with the same suggestion. The Obama administration should not "go after" those folks, as despicable as they are. He shouldn't set up a precedent of "investigating" and punishing the deeds of the past administration lest the next administration do the same and a vicious cycle retribution of starts. Obama shouldn't touch that with a ten-foot pole, no matter how noble his intentions.
A "truth commission" would be more than effective. The Bush administration was able to commit their crimes under the veil of secrecy and fear. Pulling that veil aside might be the most damaging action.
And it would more damaging to them than a legal trial which would have to move very conservatively, with exhaustive legal wrangling over every iota of evidence. More actual "truth" would come out of a Truth Commission than from a trial. They may not suffer jail or fines, but their reputations (and that of their enablers) would damaged for years.
Plus, I suspect that a truth commission could leave the door open for civil action later - is that reasonable, A.L.?
The goal here should not be maximal punishment, but maximal deterrence.
Please explain what deterrence there is in non-prosecution. Just like with Ford pardoning Nixon, Bush pardoning Iran-Contra players, Clinton being acquitted for perjury, etc. future executive branch officials will interpret non-prosecution/non-punishment as a blank check to do the same thing or worse.
What I would suggest instead is to outsource the investigation and prosecution to the U.N. That would allow the Obama administration to keep focusing on the economy, global warming, Iraq, Afghanistan, and so forth while letting the U.N. take the conservative backlash.
I cannot see refusing to prosecute criminal activity based on the assumption that there will be acquittals.
How would a “truth commission” result in deterrence? It’s already known that Cheney (and probably Bush) authorized torture. They are so arrogant, they have bragged about their criminal acts. They would consider a “truth commission” good publicity.
It seems to me that knowing that you may be prosecuted for your crimes, even if you are ultimately acquitted, would have far more deterrent effect than publicizing something that you’ve already freely admitted to and are proud of.
As Glenn Greenwald has pointed out, if the Obama administration is going to defend the Constitution as promised, and obey binding international treaties that have the full force of law, they are required to investigate and prosecute any acts of torture committed by Americans.
This is not optional. The truth commissions in South African, Argentina, and Chile involved internal affairs. But the torture and war crimes committed by the Bush Administration were international in scope and cannot legally be resolved with a truth commission.
Fwiw, I'm not in favor of prosecuting lower-level people. The way to handle the prosecution of high-level people, I think, is to find someone who is widely regarded as fair and honorable, and give them the power to investigate and, if need be, prosecute. (I think Patrick Fitzgerald would be great, were it not for the fact that I don't think Obama can or should pull him off the Blagojevich prosecution now. The ghost of Archibald Cox would also be good.)
That way, it would be as apolitical a decision as possible, but prosecutions could still happen.
I agree that revealing the facts may be the best course of action. There are some likely consequences, however, that deserve to be highlighted. First, it will allow the DOJ to assess public reaction both here and abroad to the sordid details, which may give them a better sense of whether prosecutions are politically feasible. Second, it will subject those responsible for war crimes to potential prosecution in some other country, which is a severe punishment by itself. Finally, an additional consequence is that it may make it impossible to prosecute any of the individuals now in detention, most of whom were likely subjected to some form of torture. It will be interesting to hear the spin on that one as to whether it is the fault of Bush or Obama.
Hank,
I agree with you but only to a point.
If Bush and his cronies never see the inside of a courtroom for the damage they have caused, that would be tragic, but I still think we need a Truth and Reconciliation Commission to say once and for all to those who supported the Bush and Blair regime that crimes were committed, and to have those crimes spelled out very plainly so there can be no misunderstanding amongst the public. Surely, even if Bush is never punished for his crimes, we must be sure that voters never support his ilk ever again.
But moreover I think such a commission would aid us in healing the fractures that have crept across American society. Speaking for myself I am quite bitter at those who supported Bush and all of his bad ideas over the last eight years and am unwilling to forgive in absence of a proper apology. To have a formal inquiry say once and for all that the Administration had done wrong would vindicate those of us who were skeptical and perhaps force those who had hailed it into reconsidering their reasoning.
My two cents.
best,
Andy
I want to see prosecutions. I fail to see how anything else can salvage our piss-poor reputation. But we at least deserve to know what was done in our name and 'Truth Commission' would accomplish that...
Nope, I can't even write it. None of this Truth Commission nonsense.
Laws has been broken, serious crimes-- war crimes-- have been committed in our name. We have tortured, President Obama.
Let the Republicans form a human shield around their great neocon saint. Let then try defending the gross criminality of the Bush administration. Let's ask them how much wiggle room THEY would be willing to give President Obama when it comes to following the law.
And a Truth Commission would most likely hit just as much opposition as prosecutions, anyway. "Bush did absolutely nothing wrong", after all, "so there is no need for such a librul feel-good media stunt Truth Commission."
So I say, prosecute. Offer grunts immunity in exchange for testimony on higher-ups.
It'll be messy, it'll be noisy, people will get their feelings hurt and throw tantrums, but we are dealing with torture, with war crimes. This is our chance to reclaim the moral high ground on the international stage, and it may be a long long time before such a chance comes up again if we do nothing.
What was it Burke said about the triumph of evil? Yeah. The whole world is watching, Mr President...
"These guys have to be investigated and charged if any inappropriate actions are discovered. But hey, what's the rush?
The way I see it, we need to pass new laws and bills concerning our present economic and foreign problems. We need the Repugs to get this stuff passed..." BarkleyG
Excuse Obama for not taking action now and there will always be more of Obama's agenda that needs to be passed before they look into Bush.
Considering the alternative, I don't regret voting for Obama one bit, but, though Mississippi typically doesn't count for much in the final tally, I'll shop around in the '12 primary if Obama continues with his "looking to the future, not dwelling in the past" nonsense.
If you feel the US government cannot properly prosecute war criminals, perhaps it is time to face the music and hand the criminals over to the ICC. After all, the ICC was made to deal with criminals whose home - failed - states could not or would not prosecute them for their crimes.
The USA would probably look better if they did this before the cabal were indicted by any nation that does adhere to the rule of law (although most who claim to have a lot of dirt in their own backyard as they likely were involved with the illegal wars of recent past).
One thing to note is that there will be prosecutors from around the world who will be looking for an opportunity to bring charges against the top Bush officials. From what I've heard they probably shouldn't leave the country if they want to avoid such an end. A 'Truth Commission' could go a long way toward helping these foreign prosecutors.
A.L.,
You seem to be conceding that by using elaborate legal tactics, the power elite make themselves immune to convictions. Why don't we just get rid of these laws then if convictions are impossible? We'll just call them "guidelines" or "suggestions" on torture.
Patrick
Let's be honest here folks. Most of the comments here are more highly developed than mine, so consider this the layman view.
If the World Court( or whatever it is called) is what it's name implies, these bums, "people like Bush, Cheney, and Rumsfeld) " are going to be investigated. And if half of what us DFHs think will come out, there is a good chance that the World Court will be putting out the warrants.
On a Repug plane of thought, if the Dems don't have the guts to do what is right if there was torture by U.S. citizens, the World Court will do our dirty work for us and the Repugs can keep up their complaining about that dam ol' UN trying to make us follow "world" law.
With regard to your update, A.L., I'm still not convinced.
If all we can manage is a "truth commission", in which the facts are laid bare, the fact is that the right wing will point to the lack of prosecution as proof of vindication. Haven't they already done that with the failure to impeach Bush for the last 7 years?
If prosecution is attempted, and the miscreants are acquitted on technicalities, it will prove even to the thickest among us that this country no longer holds the rule of law and equality before the law as an operating principle.
At that point, "vindication" will be the least of our problems.
What happened to the country in which JFK said "we choose to do these things, not because they are easy, but because they are hard."
Wouldn't it be a heck of a lot easier if the investigations revealed that Bush et al pressured Yoo et al for such "legal advice"?
As in "Hey, we'd like you to justify torture with legal mumbo jumbo. When can it be done by?
Then it's a straight-up conspiracy to torture, i.e., commit a felony. You wouldn't have to connect any of those players to the actual torture done.
It's wasn't just the Bush administration. There was at least complicity at virtually every level of every institution that mattered. There is almost no one with the power to act whose hands are really clean. The Bushies would have a legitimate defense in pointing out that the people behind the prosecutions raised no objections at the time, and if anything, encouraged what was going on. We got the 9/11 commission mutual whitewash as a result of a gentleman's agreement that the R's wouldn't blame Clinton if the D's didn't blame Bush, so they found only institutional failures to be solved by reorganization rather than fault by anyone of significance. I don't see how a 'truth commission' would fare any better.
My only hope right now is that progress can be made from the bottom up if the Obama administration just stops blocking lawsuits with the state secrets privilege and in general drops the curtain of secrecy that protected everything the Bush administration did. If the ACLU and other watchdog groups as well as a few actual journalists and ethical prosecutors are finally allowed to start pulling on the loose threads, who knows where they will lead. If enough information comes out that congress and the DoJ have to investigate and prosecute in response to overwhelming evidence and public pressure to do so, then it might be a different game. From the top down, I'd have to agree that it just can't happen. The conservative movement and Republican party may suffering from self inflicted wounds, but they still hold a lot of power, have a majority of the judiciary and, of course, most of the money.
Also, the recent nearly unanimous expression of unconditional support for Israel's latest atrocity committed with American weaponry should dispel any illusion that more than a handful of Democrats are willing to risk anything to stand on principle, assuming they actually have any. If they can cheer that on, what's a little torture?
If we don't prosecute then we are saying there are 2 sets of laws one for presidents and those who do thier bidding and one for everyone else. I think the biggest impediment to prosecution is the same one there was to impeachment you start looking at what high level democrats knew what liar bush was up to and it is going to get pretty embarrassing. Why else did President Obama do 180 on FISA. ?
We need an independent investigation into what happened or we will never be right as a country.
Well... am I the only one to wonder about the Nuremburg precedents? Perhaps I misunderstood it all, but I thought the idea to be that "just following orders" was no excuse?
Crime should be prosecuted, with lowest people first, to uncover the unsavory details of what was ordered.
I think torture is obvious to the untrained eye, no matter who has ordered it. If everyone ends up merely squeaking out on technicalities, there'll be no triumphalism. And the laws will then have a chance of being tightened.
P.S. I don't see why this would have to be conducted as a partisan witch hunt. Surely there are Republican or Independent investigators and prosecutors who will dig for the truth -- they may go in hoping the facts vindicate the investigatees, but will have the integrity to do their jobs wherever it leads.
In fact some of these good people, I imagine, will be absolutely wild to re-establish the country's good name.
"They would assemble an unprecedented dream team of lawyers..." -A.L.
Should we never attempt to prosecute rich and powerful criminals because they can afford high priced laywers and have a better chance at being aquitted than others?
From Robert Jackson's address to the Nuremberg Trials:
"The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power . . . ."
"The goal here should not be maximal punishment, but maximal deterrence." -A.L.
Prosecution of top administration officals IS the only real way to deter these acts from being ordered again by the executive branch.
The pardon of Nixon was a catastrophe which directly led to the Bush Administration's view of themselves as being above the law. We must prove that nobody is above the law by appointing a special prosecutor (ideally Patrick Fitzgerald, with a reputation for being non-partisan), while allowing, enabling, and demanding his investigation to go however high it may lead with prosecution of those that violated the law to the fullest extent permitted.
This IS about the future. We must hold criminals accountable, especially those with great power, or we as a nation are condoning their actions and ensuring they will be repeated.
1. Pardon Cheney, Bush, Rumsfeld, Yoo, Bybee, Addington, and, just maybe, Major General Geoffrey Miller. Commute England, Graner & co citing the Libby precedent.
2. Hear a screeching chorus of "what crimes"? (among other screeches)
3. Say "move on" to the "rule of law" types, but appoint a special counsel to inquire and report as to the need for a pardon - in case there has been any gratuitous slander of those pardoned.
Bingo - it takes it forever out of the hands of the Supreme Court.
Afterthoughts:
4. Accede to any demand from any of the pardoned that they have their day in court by revoking the appropriate pardon.
6. Appoint a Republican special counsel. Say, James Comey, or Patrick Fitzgerald.
I'm not against a "Truth Commission", per se, but I think you have the wrong idea about what it is. Part of a Truth Commission - the most important part actually - is having the person who committed the crimes, sit on the stand and admit and show remorse for everything (s)he did. I think that would be even harder to accomplish than a conviction in a court of law.
P.P.S. For those who are not familiar with him, Ben Ferencz was a prosecutor at Nuremburg, and an advocate of the rule of law ever since. You may find his perceptions interesting or relevant.
http://www.benferencz.org/bio.html
http://www.wagingpeace.org/articles/2000/12/06_ferencz_letter.htm
http://www.alternet.org/waroniraq/38604/
(Sorry if this is too far off topic. No matter how repugnant I find torture, I also feel that waging a destructive war of aggression is the supreme crime. Then it's not about a few individuals and hidden practices, but the death or displacement of masses, conducted in the light of day.)
Reflecting back on the comments above, and jumping between topics: I simply don't see why a prosecution would have to be partisan (or seen as such).
Furthermore, even if convictions were missed through 'technicalities', I think the shock of understanding what actually went on would drown out the smirking of the monsters.
I'm sorry, but I disagree. Vehemently. It's a matter of honor, a gain-the-world-but-lose-your-soul thing. We can't not do it without conceding a fundamental diminishment of who we are, and what we stand for. I'd rather weather a political shitstorm than feel eternal shame.
I simply don't see why a prosecution would have to be partisan (or seen as such)
Because the Republican party is for all intents and purposes an organized criminal syndicate. They really believe that they can violate any law and as long as it is for purely political ends, rather than personal financial gain or sexual gratification, that it is not 'crime' and any attempt to punish it as such is an illegitimate 'criminalization of politics' motivated by partisanship. That is what the pardoning of Nixon and pardoning away or sweeping under the rug of decades of Republican lawlessness has accomplished. There is some pushback now, but it's mostly from the DFH's in the blogs, not from Democrats or the serious and respectable folk in the 'librul' media.
I'm sorry, but I disagree. Vehemently. It's a matter of honor, a gain-the-world-but-lose-your-soul thing.
Agreed. Unfortunately, the people who have the power to make the choice sold their souls long ago. If what needs to happen has any chance of happening it will have to be forced on the political class who will resist in any way they can. I'd like to think that is possible, but right now it's hard to imagine how.
It seems to me A.L., that your argument here is that politics, in this case national unity, is more important than justice.
That's the same approach Ford took in pardoning Nixon.
It's a sad state that Cheney, Rumsfeld, Bush, Yoo, Addington, Bybee et al. know that the results would likely be as A.L. indicates.
In short, they knew that they could do as the pleased, and that they would get away with it all.
The facts that they would probably get acquitted in a trial, and that any 'Truth Commission' would necessarily result in sunshine--yet the perpetrators would still get away clean aside from (already) tarnished reputations--does little to assuage those who would see that the rule of law, and not of men, would prevail.
It's the rule of men for these people, and the rule of law for the rest of us. And that's wrong. But what else can we do? They played the system, knowing all along they would get away with it. And so they will.
A.L. said:
I realize that a lot of you think a "Truth Commission" is insufficient. But isn't it preferable to a series of high-profile acquittals?
I think your assumption is unwarranted and that you are giving short shrift to the average U.S. citizen, who takes his or her duty as a juror very seriously.
I believe that a jury, properly instructed in the law, and given compelling evidence of criminal behavior by a high government official, would convict. After all, Patrick Fitzgerald was able to get a conviction of Scooter Libby, despite an expensive defense, and with Republicans and many media pundits calling for an acquittal.
I think the worst case scenario might be a hung jury, since it would only take one juror to prevent a conviction. I don’t think the defense could stack the jury with enough people willing to ignore the evidence and acquit.
I am not a lawyer, and maybe I’m completely wrong. But I still believe that it is reprehensible to refuse to prosecute egregious criminal behavior on the presumption that it will be difficult to convict.
People understand that guilty people are occasionally acquitted. Not even attempting to convict criminals breeds cynicism about the justice system.
The "new" administration has an obligation to turn over the evidence to the court at the Hague. Allow the international war crimes court to act first, as our congress requests and wheedles, and pleads and begs for validity in prosecuting a crime for which they are responsible. By the time they have finished the war crimes trials, perhaps we will have been able to seat a jury in our own congress to address the charges of treason, war crimes, war profiteering, organized crime activities by government officials, fraud, money laundering, bribery, assassination, and sadly, the list goes on and on.
There is no America without prosecution of criminals for these heinous crimes. Period.
A.L.
I respectfully disagree.
I think there is something wrong in this country when admitted felons can't be convicted of their crimes, whether due to the skills of their attorneys, the costs of the prosecution, or the politics of the situation.
The law was one career path that I considered, but chose not to follow, because while I respect the law, many of the attorneys who I have encountered over the years, especially in the corporate and criminal fields, choose to vivisect the law rather than nurture it.
How much criminal behavior by corporations has been ended by "consent agreements" and multi-million dollar fines, rather than criminal convictions of executives and boards for their billions in ill-gained profits? How many politicians who have used and abused their positions for personal or political gain have walked away under clouds of suspicion or indictment, and have been able to return and repeat their larcenous ways?
I do not trust the legal system, because of its seeming focus on those who cannot defend themselves. But, dammit, it's the only system we have that could potentially hold these criminals accountable for what they have done to this country. While it's amusing to think that, in 20 years, after the power projection of the US has faded to the point that an upstart prosecutor in India, or Germany, will Pinochet Mr. Bush (Cheney will be long gone by then) and bring him to justice in a foreign land, it should happen here.
Let him have his day in the dock (or years more likely). Let Cheney, and Yoo, and Gonzalez, explain their convoluted reasoning that led them to say that they were only protecting us. Then let the prosecutor show how they tried to ruin us, our laws, and our Constitution.
And as a side note, this is why I feel that the standard for conviction of all elected officials for law breaking should not be beyond a reasonable doubt, but clear and compelling, and the same for corporations. The threshold for action for both of these privileged actors should be to avoid the appearance of taint. Such a standard might be a way to induce better actions from them
AI, I am surprised and saddened.
The saddest thing about this post is that you've really admitted that the justice system is broken. We cannot convict the powerful, so we should not even prosecute. And if we are to even investigate, we should not do so with a body with prosecutorial power, but with a "Truth Commission." Please.
You are essentially arguing, are you not, that we are now a country "ruled by men" and not by laws. Only those without political power or the means to hire "dream teams" shall be investigated and prosecuted.
We will, of course, continue to run around the world accusing other countries of violating human rights and prosecuting foreign leaders for torture.
A few critical comments on Bertrand Russell's definition of the Liberal outlook, that appears at the top of your web page:
First, Russell's definition of the Liberal outlook appears only to be a formal, methodological rule; it doesn't have any substantive implications or content beyond tentativeness. Such a minimal constraint on rationality can, in principle, at least, be
consistent with political and constitutional views you could find abhorrent.
Second, the the formal nature of Russell's characterization of the Liberal outlook only acquires substantive content when it is combined with other propositions of an ethical, philosophical nature, i.e. Utilitarianism, Kantian
maxim universalism, ideas of justice as fairness, etc.
Third, Is it even possible, let alone prudent, that all of our beliefs should, at any given time, be guided by Russell's definition of what constitutes the Liberal outlook? Russell was a logician, not a political theorist. If human cognitive activity
involves a network of beliefs, some being more foundational than others, then any person's core beliefs, although capable of changing, are not going to easily discarded. The history of science, considered by some the most rational human enterprise, gives ample evidence that science would have been crippled by reliance on theory tentativeness as the sole criterion of good scientific practice: see Thomas Kuhn's Structure of Scientific Revolutions, Paul Feyerabend's Against Method.
Fourth, within the domain of politics immediate, insistent demands requiring prudence, as distinct from tentativeness of one's belief may -do- compete. In short, Russell's definition of the Liberal outlook arguably may be a necessary condition of the liberal outlook, but it cannot, for reasons given above, be a sufficient condition of it. So Russell's definition of the Liberal outlook, as admirable as it seems, cannot stand in isolation for it to have intellectual or political utility.
One issue that is not being brought up by the pro-prosecution people is that, constitutionally, criminal prosecutions aren't the appropriate mechanism for punishing politicians. That's not to say they are above the law, but, from the Supreme Court's rulings in Nixon v. Fitzgerald and Clinton v. Jones, it appears that they are somewhat protected for good faith actions they did in office. That protection is not absolute, of course, but elections are the mechanism of punishment intended by the framers. And Bush and Co. were firmly booted by the people, and their policies will not be continued. That is the way the system should work. Their political judgments, no matter how wrong, should not result in criminal prosecutions. And the courts rightfully try to avoid such political questions (and yes, this is a political question, no matter how certain we are that we are correct).
Not to mention, A.L.'s political judgment is, as usual, spot-on
Jon's comment about political prosecution should be seen as quite limited. For example, if an elected official believes that Jews are evil and are holding back society and said official causes millions of them to be exterminated, he should be prosecuted. Didn't Hitler order the exterminations in order to 'help' German society? Protection based on political decisions should be limited to cases where the harm to individuals is an unintended consequence, not decisions that are made with the intent to do harm.
The idea that the ballot can be used to punish politicians only goes so far. In the case of Bush and Co. their term was up and no votes cast in the last election were directly related to them. I started out being on the side of restraint but the more I think about it the more i am in favor of prosecuting.
First of all, your premise is skewed. If you ASSUME that trials will fail, then of course, given those two options, a successful "truth commission" is preferable to a failed trial. But that is hardly a foregone conclusion.
Our Constitutional form of government requires the pursuit of justice, even though it will not achieve justice 100% of the time. In large part, it is this PURSUIT OF JUSTICE that defines who we are as a people, and how we view our Constitutional form of government.
POINT ONE:
Naturally the situation would be politically charged as you would be prosecuting political figures. But the willful act of NOT prosecuting has also politically charged the process. A "truth commission" would also be politically charged.
A government, at the highest levels, initiating and condoning torture and other war crimes, is in itself, a politically charged situation. Watergate was a politically charged situation. It was not the pursuit of prosecutions that led to this, it was the ACTIONS OF THOSE PERPETRATING THE OFFENSES, that charged the process politically. There is no way to avoid the fact that this is a politically charged situation. Get used to it.
>>> Fear of a politically charged process is no excuse to avoid the pursuit of justice.
POINT TWO:
The same stonewalling tactics that would be used to stall a trial would be used to stall a "truth commission."
And much too much weight is being put on Yoo and Addington's counsel, as if that was a "Get out of jail, free" card. It's not. The final responsibility lies with their superiors: Bush, Rummy, et al. I can write my son a permission slip that says he can punch his university teacher in the face. Will the teacher file charges for assault, or set up a "truth commission?" Bad advice does not trump the rules or the law. "Vee ver juss following advice," has even less credence than, "Vee ver juss following orders."
Knuckling under in the face of a "difficult prosecution" would only embolden current and future criminals with lots of money, power, and resources at their disposal to thwart the legal system.
>>> Fear of a difficult prosecution is no excuse to avoid the pursuit of justice.
And to believe that the embarrassment (or the "condem[nation] in the strongest words possible") of what comes up in a truth commission would be punishment enough for these criminals is both laughable and insulting. These people have no shame. The very act of setting up a truth commission would be seen as a monumental victory - a preemptive acquittal - by the perpetrators. A truth commission would be portrayed as THE FINAL PROOF that there was no evidence of crimes and that no criminal prosecution was even possible.
A truth commission creates more problems that you claim it would solve. Your claims of problems with trials that would somehow be alleviated by a truth commission don't hold water - most, if not all, of the same trial issues would come up with a truth commission.
In the end, it appears the only justification for avoiding a trial is fear of a failure to bring a guilty verdict.
While fear of failure has always been used to avoid the pursuit of success, fear of a failed trial is no excuse to avoid the pursuit of justice.
iLarynx
I seem to recall an awful lot of people at Palin rallies who were saying things like "Traitor!", "Terrorist!" and "Kill him!".
I don't think any of those people were joking.
If we were to proceed, we would have to anticipate some form of "blowback", and the possibility of attempted political violence, as well as the very likely retaliatory prosecutions that would be dealt by some future Republican administration.
The cost could be the death of peaceful change of government. Keep in mind that this is a country with a history of assassinations and armed insurrections.
criminal prosecutions aren't the appropriate mechanism for punishing politicians
This is true when their conduct is lawful. Any policy is going to have winners and losers and the losers should not be able to prosecute because they don't like the outcome. Even grossly incompetent governance is not illegal. However, when the conduct is completely outside of and *explicitly prohibited* by the laws the politicians took an oath to faithfully execute, they are not acting within their authority and prosecution is not only appropriate but necessary. Having a lawyer write a memo saying it's legal shouldn't be any more of an excuse than if a mob boss hired a lawyer to tell him it is legal for him to bump off his rivals.
Republicans are openly asserting that as long as their criminal acts are committed for political ends, rather than for money or sex, they are not crime and should only be punishable at the ballot box. Once that is accepted we no longer have a government of laws. We just have rival gangs and warlords vying for power any way they can.
The question isn't whether or not they should face prosecution. Of course they should. The question is how can it happen when the people who would have to do it, or at least allow it to happen, and face all out political warfare as a result don't see anything in it for themselves and have a decades long history of consistently failing to take much easier stands with more popular support (e.g. telecom immunity).
I don't have much hope for a truth commission, because I think a precondition for it's existence would be that all significant members of the political class be found blameless, just like the 9/11 commission. They would find an imperfect process and a few unimportant bad apples, redraw the well trampled lines in the sand and say "This time we really mean it. Really, really."
Dread Scott covers it well. A Truth Commission really only works if there is a clear finding of criminal behavior and a clear acknowledgment of that fact by those committing the crimes. But these guys will never admit to criminal liability. What is confusing people is the nature of the crimes. If we consider it on a continuum of criminality, I take it that most people would support prosecutions in cases of child rape but would ignore occasional instances of mail tampering. It's a question of not just what is illegal but what is morally acceptable in a civilized democracy. How about Government death squads targeting political opponents inside the US? Clearly, these would need to be prosecuted since the crimes threaten the fabric of democracy itself and the rule of law. How about the alleged torture of Jose Padilla (a US citizen)or the solitary confinement of Ali Al Marri (a US resident)? What about the denial of habeas corpus? These are all crimes that threaten society itself. They seek to deny the very role of legal recourse for prisoners. These items have to be condemned. Torture has no legal or moral basis and is a crime under US law. The Yoo and Addington briefs are legally deficient. If a lawyer tells you you can shoot defenseless people in the street then you've got a bad lawyer not a valid legal defense. Claims of partisanship be damned! Public criminal trials may be only way to confront the American people and force them to acknowledge that no false beliefs can excuse serious crime. There is no Royal Prerogative, no get out of jail do what you like card for the US President and his agents. If you accept otherwise then you have affirmed that it's ok that at some future time you may be snatched from the streets and have your fingernails torn out by the government -- and no-one should care. Prosecute these bastards!
I have alot of difficulty with the presented rationale.
1 There is already an abundance of evidence that torture took place and that it was authorised by the White House. This alone is sufficient to prosecute,
2 State secrets or executive privilege does not preclude an "in camera" review by the presiding judge. As such, even behind closed doors, a trial is not impossible,
3 Regarding the lawyers, please read about Carl Schmitt, convicted for doing exactly that which Yoo et al. appear to have done: misconstrue the consensus view on who to interpret the law. Or, put more plainly, offer a legal loophole to committing war crimes.
4 We are talking about war crimes. Are you seriously suggesting we skip the accountability part of committing war crimes merely because it is politically inconvenient?
At some point political expediency itself is lost due to a lack of accountability. This is way bigger than an Obama, Congress or the Bush Administration. None of these turds we call leaders have the cojones to step up to the plate. Why not? Because it's not politically expedient.
The only people this impeachment is "politically expedient" for is the American Populace, which will have to face the backlash from this heinous regime for generations to come.
Frankly, I think we need an American version of the Nuremberg trials. Sounds harsh? Well dying sounded harsh to hundreds of thousands of iraqis. Having an election stolen twice is pretty harsh. Seeing us go from a republic to a dictatorship, that's friggin harsh.
A trial to show the world how opposed we are to this sort of home-grown treachery is far more important than pretending nothing happened. I remember that strategy backfiring in New Orleans.
But then again, I'm just waiting for that midnight knock.
Til then...
One Struggle, One Hope,
--Reverend Manny and the Twilight Empire
A.L.,
I hate to keep harping on this, but Glenn Greenwald has an article today on our two-tiered justice system that pretty much says it all. I hope this link will work; the article is very much worth reading.
http://www.salon.com/opinion/greenwald/2009/01/28/prosecutions/index.html
Why we can send someone to jail for 15 years for stealing $100, but can’t prosecute war criminals is beyond me.
So the takeaway here is:
1. Bush/Cheney/Rumsfeld and their lackeys committed unprecedented war crimes and torture such as the world has never seen from America before (unlike anything committed by their predecessors Washington, Jackson, Lincoln, Grant, FDR, Truman, Eisenhower, Kennedy, Johnson, Carter, Reagan, Bush 41 or Clinton) or from unprosecuted living leaders of other civilized states (Blair, Chirac, Gorbachev, Putin, Hu, Jiang).
2. The sordid details of those crimes are hidden behind a veil of secrecy which needs to be pierced.
And yet:
3. If the veil of secrecy were pierced and the criminals were tried for these crimes, they would likely be acquitted:
A) Because they will probably defend themselves, using (horrors!) excellent lawyers, rules of criminal procedure and available legal defenses;
B) Because they will submit evidence about the threats they were dealing with as justification for their conduct, which might (horrors!) influence a jury and the public;
C) Because they were undeniably relying upon the legal advice of facially competent attorneys who (horrors!) interpreted the law differently than you do; and besides
D) Piercing the veil of secrecy will reveal that top Democrats were fully aware and therefore complicit in the crimes, also likely to mislead a jury and the public.
From this, some of your readers draw further such conclusions as:
1. The United States is a failed state, and the World Court or the ICC (neither of which would have jurisdiction, but in such an important cause, who cares?) should prosecute our retired elected leaders.
2. The inability to convict a hated political opponent of a crime proves that the rule of law in the United States, while existing heretofore, has now collapsed.
3. Prosecutors should prosecute political figures for crimes, notwithstanding awareness that the elements of the crime cannot be proven, as a deterrent. (This, by the way, violates rules of lawyer ethics, but in such an important cause, who cares?)
4. Pressure, such as complete financial devastation and years of emotional torment, should be put on low-level U.S. government employees to milk them of intelligence concerning possible mid-level and upper-level criminal conduct - that criminal conduct consisting of putting pressure, such as physical discomfort, fear and years of detention, on enemy combatants and avowed terrorists to milk them of intelligence concerning future attacks on U.S. civilians.
4. If a real trial of the criminals is not feasible, then a show trial (aka “Truth Commission" or “Hate Week”) will serve a good purpose, such as testing the strength of public opprobrium of the criminals or healing the fractures in our society by forcing the people who supported Bush to apologize to those they embittered.
5. The whole Republican Party is a criminal syndicate and needs to be slammed down hard (one-party states being so much more compatible with a true democracy). Perhaps re-education camps?
I seem to recall that almost certain acquittal in a criminal trial used to imply something else, too, but the term slips my mind.
If you don't mind, how about if we just pick them all up, throw them in a plane, and take them to some country that DOES care about the rule of [international] law, and let them handle it?
I cannot sign off on this namby pamby proposal to let bush and co. off the hook because the republicans and their ilk will throw a temper tantrum.
If they are going to "create a firestorm" in opposing the actual legal framework of the United States of America then I would hope that democrats or frankly ~anyone~ with principals and morals would have to guts to fight fire with fire.
With all due respect we are talking about the constitution and the law of the land. Sure some people in high places will scream bloody murder but You either accept the rule of law or you don't. The case against bush and cheney in and of itself is prima facia. Cheney admitted to it just a few weeks ago.
Thank God for attorneys Francis Boyle of the University of Illinois as well as Michael Ratner of the Center For Constitutional Rights http://ccrjustice.org/. Whether you like it or not ..whether it is politically feasable or not ....these guys will follow Rumsfeld, Cheney, Bush et. al. to the gates of Hell with subpoenas in every judicial district of the planet.
All this stuff went down before ~way back in the days of 1993~. Clinton didn't have the cajones to take on "dear leader #1" back then and the mafia came back to chop his nads off in 2000. Clinton was faced with a much tougher political climate and he backed down and we all paid for it with the blood of the Republic in 2000.
Obama was elected in a landslide with a sympathetic congress and a hell of a lot of sympathetic voters. So what if Mitch McConnell in the Sentate will whine? Let him whine.
I say make the repugs raise a firestorm and then bury them in it. If you can't stand the heat get out of the kitchen.
As Sean Connery once said "You wanna know how to get Capone? They pull a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. *That's* the *Chicago* way! And that's how you get Capone. Now do you want to do that? Are you ready to do that? I'm offering you a deal. Do you want this deal?"
I am sorry to have seen this so late, but it is the best articulation of my view of what should happen and why.
While A.L. correctly raises the specter of martyrdom leading to a justification of the actions taken under the Bush torture regime, that is not the worse case scenario.
The people who perpetrated the 9-11attacks are far worse religious nutcases than anything the Republican party can serve up domestically, In the event they were able to successfully launch an attack in the U.S. while a trial was proceeding against Bush officials, the baklash politically would be unbelievable.
They didn't order anything or engaged in any acts of torture. They just provided really bad legal advice.
Disagree. They conspired. Conspiracy is a crime.
Covering up the torture and kidnap to tortured programs by asserting "state secrets"? gtfo. The war crimes of the Bush administration are now shared by Obama.
ever get the feeling you've been cheated?
we've been hoodwinked, bamboozled.
The Department of Justice should certainly investigate the actions of high-level Bush Administration officials, and, if the evidence is there to prosecute crimes, President Obama should authorize the Attorney General to file the charges against them.
However, as much as I want to see accountability in government for a change, it's important that this not be politicized anymore than necessary. IMHO, we need to follow the evidence where it leads and take action on a case-by-case basis. More than that risks alienating the American people and feeding the cynicism that would say the prosecutions are merely partisan attempts at payback.
We need to restore our country's reputation for upholding the rule of law, but we can't do that by calling it into further question at the same time.
Outsourcing the prosecution is a good idea and is actually very easy. The US can join UN's ICC and they can prosecute the culprits in Den Haag.
Bush/Rumsfeld Prison 09
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