The Iraq War and Daydream Believers

Fred Kaplan in his 2008 book Daydream Believers: How a Few Grand Ideas Wrecked American Power recalls the assumptions, events and interpretations of those events that led to the disaster known as the Iraq War, the 10th anniversary of whose formal start fell this week.

He looks at the assumption of quick-and-easy war promised by the "revolutionary in military affairs" which occupied military thinkers like Andrew Marshall, excited hardcore militarists like Dick Cheney and seduced neocon ideologues like Paul Wolfowitz, an assumption that was really another version of the perennial "boys with toys" phenomenon. A new weapon, a new technology, a new approach to military strategy, will upend the basic realities of war and even of history, so the thinking goes. Just during the Obama Administration, we've seen the blossoming of drone warfare as promising quick-and-easy military interventions and the cycle now seems to be passing into a phase in which the limitations and problems associated with the technology are more widely recognized. Not that it means the new technology goes away. The latest obsession with "cyberwar" shows symptoms of this problem.

In the case of the Afghanistan and Iraq Wars, the notion centered around concepts that became popularly known as "shock and awe." Go into a country like Iraq with our American superweapons, wipe the floor with the comparatively less prepared enemy force, knock out the leadership, and freedom and democracy will bloom. At least that's the form it had taken in the delusional daydreams that the Cheney-Bush Administration mistook for reality and that lead them to invade underestimating the real risks and bungling the intervention after the invasion very badly.

Kaplan has a real talent for understanding how military theories get translated into eventual policy. In Daydream Believers, he traces the notion of quick-and-easy victory through shock-and-awe from the end of the Cold War and the triumphalist attitude it generated in the US, through the Gulf War and the Kosovo War and into the initial phases of the Afghanistan War. A fatal problem with the faith in shock-and-awe was that it was conceived and gamed out in terms of the early phases of conventional military conflict, and in practice badly neglected the next phase, which in the theory's expectations would be postwar.

Mix these over-optimistic ideas about war with the arrogance and irresponsibility of the leading figures in the Bush Administration - the President himself, Rummy, Cheney, Colin Powell, Condi-Condi Rice, Wolfowitz, Douglas Feith and the rest of the rouges' gallery that became so familiar to the public and the world in 2002-3, and you get the fiascos that the Iraq War and the Afghanistan War became. Kaplan looks at how the arrogance and superficial assumptions of that team lead them to draw wildly unrealistic expectations of their influence on a country like North Korea. And he relates the sad story of the Cheney-Bush Administration's bumbling, fumbling handling of North Korea's nuclear proliferation issues.

And no account of the Iraq War should forgo the influence of our old friend, the scamster Ahmad Chalabi, and Kapland doesn't disappoint on that score.

Much of the story of the Iraq War he relates covers familiar ground, but he does so from the helpful perspective of theories of strategy and statecraft that had consequence far beyond the classroom. He describes, for instance, the influence of the conservative Russian-Israeli Natan Sharansky and simplistic ideas of good and evil in international affairs and the ease with which democracy would spring up in states of the Middle East liberated from oppressive regimes on the fundamentalist-minded Bush and his court. He quotes Sharansky, "I am convinced that all peoples desire to be free. I am convinced that freedom anywhere will make the world safer everywhere. And I am convinced that dmeocratic nations, led by the United States, have a critical role to play in expanding freedom around the globe."

One of the most important aspect of this book is Kaplan's attention to the Star Wars "missile defense" program, which the Cheney-Bush Administration promoted and spent far more money on that any Administration before. It also ran on the infamous wishful thinking of the Bush's national security team, in this case helped along enormously by the satisfaction it brought to the contractors building the giant boondoggle:

"Spending on missile defense continued soaring, to $10 billion a year and beyond, an amount much larger than the budget for any other single weapons program It remained a great boon for contractors. And Bush still believed in the idea," Kaplan writes, despite the repeatedly demonstrated fact in tests that it didn't work. "To cut back would be to admit that the idea was wrong, that the money spent so far - over $100 billion since Ronald Reagan sparked its revival nearly twenty years earlier - had been a waste. Maybe it would work one day. Some enemies might think it works now." That was the attitude the Administration adopted. When one reason for spending bizillions on the boondoggle didn't work, another excuse could be dreamed up.

In the end, moralistic arrogance and utopian schemes about remaking the world caused a lot more harm than good. "What was abandoned in the subsequent pursuit of absolute power and universal values," Kaplan concludes, "was the concept of statecraft - the art of conducing the affairs of state." The Administration's famous contempt for the need of allies showed how willing the Cheney crew were to dispense with elementary principles of international relations. As Kaplan puts it:

It's one thing to be a visionary, another to have visions. At serendipitous moments, a particularly powerful nation can try to reshape an agenda. But it can't toss away maps or ignore laws of physics just because they impose unpleasant restrictions. Those limits have to be taken into account, even if doing so means setting aside a great dream. Whatever their ultimate hopes, the leaders of nations have to survive and thrive among the common elements. They have to deal with the world as it is.

In a recent article, Kaplan recalls some of the The Coming Collapse of the Middle East? Slate 03/11/2013, Kaplan recalls an incident that showed the frivolity with which our Glorious Leader George W. Bush approved the invasion of Iraq:

Bush had been warned. Two months before the invasion, during Super Bowl weekend, three prominent Iraqi exiles paid a visit to the Oval Office. They were grateful and excited about the coming military campaign, but at one point in the meeting they stressed that U.S. forces would have to tamp down the sectarian tensions that would certainly reignite between Sunnis and Shiites in the wake of Saddam’s toppling. Bush looked at the exiles as if they were speaking Martian. They spent much of their remaining time, explaining to him that Iraq had two kinds of Arabs, whose quarrels dated back centuries. Clearly, he’d never heard about this before.

Many of Bush’s advisers did know something about this, but not as much as anyone launching a war in Iraq, and thus overhauling the country’s entire political order, should have known.

It wasn't rocket science; it was basic history. [my emphasis]

Tags: bush administration, iraq war

George McGovern on impeaching Cheney and Bush (from 2008)

In honor of George McGovern's passing, I'm reposting in full a post from 01/06/2008 which is one illustration of why I respected the man so much.

************************************************

Former South Dakota Senator and 1972 Democratic Presidential candidate George McGovern has an op-ed in the Washington Post today on impeachment, Why I Believe Bush Must Go 01/06/08. I'm pleased to see that he gives a reasonable description of the current partisan atmosphere:

Of course, there seems to be little bipartisan support for impeachment. The political scene is marked by narrow and sometimes superficial partisanship, especially among Republicans, and a lack of courage and statesmanship on the part of too many Democratic politicians. So the chances of a bipartisan impeachment and conviction are not promising. (my emphasis)

And the following is straightforwardly true:

Bush and Cheney are clearly guilty of numerous impeachable offenses. They have repeatedly violated the Constitution. They have transgressed national and international law. They have lied to the American people time after time. Their conduct and their barbaric policies have reduced our beloved country to a historic low in the eyes of people around the world. These are truly "high crimes and misdemeanors," to use the constitutional standard.

From the beginning, the Bush-Cheney team's assumption of power was the product of questionable elections that probably should have been officially challenged -- perhaps even by a congressional investigation.

In a more fundamental sense, American democracy has been derailed throughout the Bush-Cheney regime. The dominant commitment of the administration has been a murderous, illegal, nonsensical war against Iraq. That irresponsible venture has killed almost 4,000 Americans, left many times that number mentally or physically crippled, claimed the lives of an estimated 600,000 Iraqis (according to a careful October 2006 study from the Johns Hopkins Bloomberg School of Public Health) and laid waste their country. The financial cost to the United States is now $250 million a day and is expected to exceed a total of $1 trillion, most of which we have borrowed from the Chinese and others as our national debt has now climbed above $9 trillion -- by far the highest in our national history.

All of this has been done without the declaration of war from Congress that the Constitution clearly requires, in defiance of the U.N. Charter and in violation of international law. This reckless disregard for life and property, as well as constitutional law, has been accompanied by the abuse of prisoners, including systematic torture, in direct violation of the Geneva Conventions of 1949.

McGovern also has an appropriate description of the Bush Gulag, calling it a "shocking perversion".


And he doesn't forget about the administration's response to Hurricane Katrina, which Cheney, Bush and Karl Rove decided to embrace as ethnic cleansing by natural disaster:

In addition to the shocking breakdown of presidential legal and moral responsibility, there is the scandalous neglect and mishandling of the Hurricane Katrina catastrophe. The veteran CNN commentator Jack Cafferty condenses it to a sentence: "I have never ever seen anything as badly bungled and poorly handled as this situation in New Orleans." Any impeachment proceeding must include a careful and critical look at the collapse of presidential leadership in response to perhaps the worst natural disaster in U.S. history.

Impeachment is unlikely, of course. But we must still urge Congress to act. Impeachment, quite simply, is the procedure written into the Constitution to deal with presidents who violate the Constitution and the laws of the land. It is also a way to signal to the American people and the world that some of us feel strongly enough about the present drift of our country to support the impeachment of the false prophets who have led us astray. This, I believe, is the rightful course for an American patriot. (my emphasis)

McGovern, a bomber pilot in the Second World War, hasn't forgotten that patriotism is about more than listening to Rush Limbaugh and cheering about killin' foreigners. It also involves commitment to the notion that Andrew Jackson defined of a democratic nation that respects the Constitution.

McGovern, whose wife Eleanor just recently past away, ends on a poignant note:

I believe we have a chance to heal the wounds the nation has suffered in the opening decade of the 21st century. This recovery may take a generation and will depend on the election of a series of rational presidents and Congresses. At age 85, I won't be around to witness the completion of the difficult rebuilding of our sorely damaged country, but I'd like to hold on long enough to see the healing begin.

There has never been a day in my adult life when I would not have sacrificed that life to save the United States from genuine danger, such as the ones we faced when I served as a bomber pilot in World War II. We must be a great nation because from time to time, we make gigantic blunders, but so far, we have survived and recovered.

We could all aspire to be as lucid, engaged and committed to the public goods when we become octogenarians as George McGovern is.

Tags: bush administration, bush gulag, george mcgovern, impeachment, iraq war

No, the torture issue isn't going away

It's too big and the implications are too far-reaching for it to go away before there's a real reckoning. As in, people going to jail for ordering and implementing torture, unambiguous official condemnations of the practice, and US laws written to specify that they apply no matter how some crooked torture lawyer in the Justice Department or the White House may want to interpret them.

Spencer Ackerman does some journalism in CIA Committed 'War Crimes,' Bush Official Says Danger Room 04/04/2012.

The short version is that State Department advisor "counselor" Philip Zelikow wrote to his boss Condi-Condi and told her clearly that the US was practicing criminal torture and that it wasn't aimed at getting useful intelligence but at producing propaganda. He provides a copy of the six-page memo of 02/15/2006 at links in his article. He also interviewed Zelikow for the piece:

Zelikow’s warnings about the legal dangers of torture went unheeded — not just by the Bush administration, which ignored them, but, ironically, by the Obama administration, which effectively refuted them. In June, the Justice Department concluded an extensive inquiry into CIA torture by dropping potential charges against agency interrogators in 99 out of 101 cases of detainee abuse. That inquiry did not examine criminal complicity for senior Bush administration officials who designed the torture regimen and ordered agency interrogators to implement it.

"I don’t know why Mr. Durham came to the conclusions he did," Zelikow says, referring to the Justice Department special prosecutor for the CIA torture inquiry, John Durham. "I’m not impugning them, I just literally don’t know why, because he never published any details about either the factual analysis or legal analysis that led to those conclusions."

Also beyond the scope of Durham’s inquiry: The international damage to the U.S. reputation caused by the post-9/11 embrace of "cruel, inhuman and degrading" interrogation methods; and the damage done to international protocols against torture.

The torture issue isn't going away.
See also:

Marcy Wheeler's well-informed analysis in Philip Zelikow Saves Condi Rice’s Hiney (Again) Emptywheel 04/04/2012: "Philip Zelikow did really important work fighting the Bush Administration’s efforts to defy international obligations on torture. But the written record, at least, shows that he was fighting, in part, against the negligence of his boss, Condi Rice."

Marcy does what good investigative reporters do: she spends a lot of time carefully reviewing the contents of relevant documents and relating them to each other.

Charlie Pierce's thoughts on it in Democracy On A Waterboard Esquire Politics Blog 04/04/2012: The Zelikow memo "It blows up (yet again) the standard Bush Administration alibi that they thought they could do whatever they wanted to whomever they wanted because their pet DOJ lawyers told them it was OK, and also because, you know, 9/11!".

Tags: accountability for torture, bush administration, torture

Lies that kill: the non-existent "weapons of mass destruction" in Iraq according to "Curveball"

One of the main sources on which the Cheney-Bush Administration relied to build their dishonest case for invading Iraq was Rafid Ahmed Alwan al-Janabi, an Iraqi defector better known as "Curveball." German intelligence had warned the United States that Janabi was a shaky source. As former German Foreign Minister Joschka Fischer puts it, "Our position was always: [Curveball] might be right, but he might not be right. He could be a liar but he could be telling the truth." (See Helen Pidd, Curveball doubts were shared with CIA, says ex-German foreign minister [Joschka Fischer] The Guardian 02/17/2011) Janabi is especially known for the highly-improbable story about the mobile labs of death that Saddam supposedly had driving around the country cooking up bioweapons in the back of the truck.

But fabrication is what the Cheney-Bush Administration wanted.

Justin Logan in the aptly named post Ein Haus der Lüge ("A House of Lies" - the text of the post is in English) The National Interest 02/15/2011, Al-Janabi recently gave an interview to The Guardian, Defector admits to WMD lies that triggered Iraq war by Martin Chulov and Helen Pidd 02/15/2011. And even though he claims he was shocked, shocked, I tell you, when he say it contribute to starting a war, he's unrepentant about his role in the whole criminal enterprise:

Rafid Ahmed Alwan al-Janabi, codenamed Curveball by German and American intelligence officials who dealt with his claims, has told the Guardian that he fabricated tales of mobile bioweapons trucks and clandestine factories in an attempt to bring down the Saddam Hussein regime, from which he had fled in 1995.

"Maybe I was right, maybe I was not right," he said. "They gave me this chance. I had the chance to fabricate something to topple the regime. I and my sons are proud of that and we are proud that we were the reason to give Iraq the margin of democracy." ...

With the US now leaving Iraq, Janabi said he was comfortable with what he did, despite the chaos of the past eight years and the civilian death toll in Iraq, which stands at more than 100,000.

"I tell you something when I hear anybody – not just in Iraq but in any war – [is] killed, I am very sad. But give me another solution. Can you give me another solution?

"Believe me, there was no other way to bring about freedom to Iraq. There were no other possibilities."

Yet another Guardian article is a reminder that going so public to try to drum up a film or book deal for himself might not be the best idea Janabi ever had, either: Helen Pidd and Martin Chulov, Curveball could face jail for warmongering, says German MP 02/17/2011:

In his adopted home of Germany, MPs are demanding to know why the German secret service paid Curveball £2,500 a month for at least five years after they knew he had lied.

Hans-Christian Ströbele, a Green MP, said Janabi had arguably violated a German law which makes warmongering illegal. He added that Gerhard Schröder, German chancellor around the time of the second Iraq war, should also reveal what he knew about the quality of evidence Curveball gave to Germany's secret service, the BND.

Under German constitutional law, it is a criminal offence to do anything "with the intent to disturb the peaceful relations between nations, especially anything that leads to an aggressive war", said Ströbele. The maximum penalty is life imprisonment, he said, adding that he did not expect it would ever come to that.

The MP said he would table a question to the Bundestag demanding to know whether the German secret service knew that Curveball was lying before the US-led invasion of Iraq in 2003.

Jail for warmongering in the form of knowingly providing false intelligence to drum up a war? What a concept! These Germans obvious haven't gotten on board yet with the concept of Look Forward, Not Backward. They don't realize that all this "rule of law" stuff is, like, soo-ooo 20th century. At least according to the Beltway Village consensus.

But Americans should never forget how frauds like this Janabi guy and senior officials in the Cheney-Bush Administration and the pathetic Tony Blair's British government generated a completely unnecessary war based on lies that turned out to be the biggest strategic disaster in the history of American foreign policy. The US will be experiencing negative consequences from the invasion of Iraq for decades.

ags: bush administration, iraq war, war crimes

The Bush Administration and the Imperial Presidency

FDL had a book salon event this past weekend to discuss The Presidency of George W. Bush: A First Historical Assessment (2010), edited by Julian Zelizer. Zelizer participated and wrote the introductory post. Speaking of himself in the third person, he summarizes his broad view of the Cheney-Bush Administration:

In the area of national security, the administration systematically expanded the power of the executive branch to deploy military forces abroad and implement related programs such as domestic surveillance, part of a deliberate drive to recreate the pre-Watergate “imperial presidency” of the Nixon era. And in electoral politics, Bush and his adviser Karl Rove adopted the goal of assembling a permanent Republican majority that would equal the strength of the New Deal coalition energized by Franklin Roosevelt in the 1930s—based on an unstable approach that sometimes operated through “big-tent” tactics but more often reflected ideologically divisive appeals to the conservative base.

In the book’s second chapter, Zelizer demonstrates that, despite the antigovernment rhetoric of the conservative movement, the expansion and centralization of power in the executive branch is a major legacy of conservative governance from Nixon and Reagan through Bush. Key policymakers in the Bush administration, including Vice-President Dick Cheney and Secretary of Defense Donald Rumsfeld, worked to restore presidential prerogatives that the Democratic Congress had weakened in the wake of Vietnam and Watergate. During the 1970s, Congress sought to restrict the autonomy of the White House through reforms such as the War Powers Act, the Church Committee’s exposure of the CIA’s extralegal activities, the Foreign Intelligence Surveillance Act (requiring warrants for domestic wiretaps), and the independent counsel statute. [my emphasis]

And he notes the authoritarian trend in Republican Party conservatism: "'The war on terrorism,' Zelizer concludes, 'has highlighted the reality that presidential power is integral, rather than aberrational, to modern conservatism.'" (my emphasis)

Tags: bush administration, dick cheney, george w bush

The problem with putting the foxes in charge of the other foxes: Hank Paulson edition

I really should read McClatchy News more often than I do. Their reporting on foreign has stood head and shoulders above most other national news organizations in the US for years.

This report by Greg Gordon, with video included, How Hank Paulson's inaction helped Goldman Sachs 10/10/2010, reminds us how destructive and corrupting the phenomenon of regulatory capture can be, when the regulators have a perceived self-interest in giving the industries they regulate a pass. After serving for eight years as the CEO executive of investment bank Goldman Sachs, Paulson became Bush's Secretary of the Treasury.

During Paulson's first 15 months as the treasury secretary and chief presidential economic adviser, Goldman unloaded more than $30 billion in dicey residential mortgage securities to pension funds, foreign banks and other investors and became the only major Wall Street firm to dramatically cut its losses and exit the housing market safely. Goldman also racked up billions of dollars in profits by secretly betting on a downturn in home mortgage securities.

"No one was better positioned . . . than Mr. Paulson to understand exactly what the implications of his moving against the (housing) bubble would have been for Goldman Sachs, because he knew what the Goldman Sachs positions were," said William Black, a former senior thrift regulator who delivered the harshest criticism of the former secretary.

Paulson "knew that if he acted the way he should, that would have burst the bubble. Then Goldman Sachs would have been left with a very substantial loss, and that would have been the end of bonuses at Goldman Sachs."

The rampant misconduct, corruption and blatant violations of law by the Cheney-Bush administration should have already been thoroughly investigated by the Democratic Congress and by Obama's Justice Department. Obama's Look Forward Not Backward policy on turning a blind eye to even criminal acts by the preceding administration has been thoroughly misguided.

Tags: bush administration

Texas is the future?

The conservative London Economist is suggesting that Texas is the wave of the future: America's future: California v Texas 07/09/09.

It does provide a handy definition of the problem that has forced California's staet government for years to chronically operate on the verge of bankruptcy:

No state has quite so many overlapping systems of accountability or such a gerrymandered legislature. Ballot initiatives, the crack cocaine of democracy, have left only around a quarter of its budget within the power of its representative politicians. (One reason budget cuts are inevitable is that voters rejected tax increases in a package of ballot measures in May.)

But in thinking that Texas style government is the wave of the future, I guess The Economist's editors just snoozed through the Cheney-Bush administration, when we got to see Texas-style government implemented on a national and international scale. That would be the experiment that wrecked the world's financial system, slammed the world economy into the Great Recession, put the United States into the torture business, and produced corruption on a scale that makes Teapot Dome sound like an immaterial accounting error.

Oh, and produced the worst strategic disaster in the history of American foreign policy with the Iraq War.

No, thanks, eight years of that kind of "Texas" government was more than enough for a century or two!

Tags: bush administration, california politics, predator+state, texas

This isn't going away

Mark Danner reports for the New York Review of Books on a confidential report from the International Committee of the Red Cross (ICRC) on how the torture policy operated in the Bush Gulag (Al Gore's name for the Cheney-Bush administration's series of secret prisons and torture centers): US Torture: Voices from the Black Sites 03/12/09; 04/09/09 issue. He also discusses it in a podcast, Mark Danner on the ICRC Report on US Torture 03/14/09.

Larry Wilkerson, Colin Powell's longtime friend and assistant, also writes about the torture policy in Some Truths About Guantanamo Bay 03/17/09 at Steve Clemons' Washington Note blog. Wilkerson still tries to minimize or avoid the significance of his friend Powell's highly-likely participation in war crimes as Bush's Secretary of State. But he makes some very important points, such as the fact that those first captured in Afghanistan to be sent to the Gulag were haphazardly selected for imprisonment and torture:

... several in the U.S. leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.

But to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror and these leaders already had black marks enough: the dead in a field in Pennsylvania, in the ashes of the Pentagon, and in the ruins of the World Trade Towers. They were not about to admit to their further errors at Guantanamo Bay. Better to claim that everyone there was a hardcore terrorist, was of enduring intelligence value, and would return to jihad if released. I am very sorry to say that I believe there were uniformed military who aided and abetted these falsehoods, even at the highest levels of our armed forces. [my emphasis]

The crimes involved in the torture policy need to be prosecuted. From the administration officials and government attorneys that designed and tried to provide legal alibis for it, to the people who carried out the torture with their own hands and feet, and everyone in between.

A "truth commission" just isn't enough. Without actual prosecutions and serious prison time for the perps, it's virtually guaranteed that Jeb Bush or some other Republicans will repeat the same crimes and worse when they next take control of the Presidency.

Tags: bush administration, bush gulag, torture, war crimes

Good news on the international law and domestic rule-of-law front

From U.S. reverses policy, drops 'enemy combatant' term CNN 03/13/09:

In a dramatic break with the Bush administration, the Justice Department on Friday announced it is doing away with the designation of "enemy combatant," which allowed the United States to hold suspected terrorists at length without criminal charges. ...

The announcement says the Justice Department will no longer rely on the the president's authority as commander in chief, but on authority specifically granted by Congress.

The headline-writer didn't seem to have any understanding of what's involved. It wouldn't matter if they were using another "term" for the same thing. What matters is the government is dropping the legal designation "enemy combatant", which Cheney and Bush used as an escuse to violate international treaties and domestic law on the treatment of prisoners. The fact that the Republican Supreme Court upheld their use of the category is also appalling.

This is great news in itself. It will also enhance the reputation of the US and the Obama administration in most of the world.

But it is not a substitute for requiring full legal accountability of Cheney-Bush officials for criminal actions committed, especially on the torture policy. It establishes a healthier historical precedent.

But people like Dick Cheney will make up their own historical precedents. And they don't care if Democrats follow the law as long as the Cheney types are not held responsible for criminal actions. Without actual prosecutions to impose legal penalties on the perpetrators and fully expose in court-vetted procedures the scope of the previous administrations misdeeds, the next Republican administration can be expected to go back to the same kinds of practices. And worse.

There's just go good way around the need to confront in the most formal way the breadth of illegality during the Cheney-Bush administration.

Tags: bush administration, obama administration, war+crimes

Cheney-Bush accountability

Judgement Day

First of all, hooray for this idea! Liberal Coalition Says Forget the Truth Commission, Bring on the Special Prosecutor by Elana Schor TPMDC 02/24/09. The statement with hotlinks is also found at Groups Request Special Prosecutor for Bush, Cheney, et alia AfterDowningStreet.org.

Secondly, hooray for this speech by Democratic Sen. Sheldon Whitehouse of Rhode Island:



Human rights attorney Scott Horton has been one of the chief advocates of legal accountability for Bush officials. He favors a Truth Commission as a preliminary step toward prosecution. He recently discussed the subject in Investigating Bush's Crimes The Nation Online 02/18/09.

He also has a Harper's blog, No Comment, in which he often discusses Bush accountability issues.

Salon has been one of the New Media outlets that is continuing to pursue the accountability issue. Some recent examples:

Glenn Greenwald Binyam Mohamed, war crimes investigations, and American exceptionalism 02/19/09

Obama's efforts to block a judicial ruling on Bush's illegal eavesdropping 02/28/09

Will Obama cave on Bush-Cheney terror policies? by Joan Walsh 02/19/09

Joan Walsh takes critical note of the fact that the administration hasn't yet moved to shut down the other stations of the Bush Gulag except for Guantanamo in Bagram prisoners have no rights? Salon 02/21/09. On that issue, see also Bushs Regeln für US-Gefängnis bleiben in Kraft Die Welt 21.02.2009.

Mark Benjamin reports on how one of the Army's official investigators of the Abu Ghuraib torture revelations argues that "You can't sweep unlawful activities under the table" Salon 02/20/09.

In this case, I find myself very much disagreeing with Joe Conason in his Salon column Pardon the Bush miscreants 02/13/09. He explicitly endorses the Truth Commission idea as an alternative to prosecution. He wants political, moral and historical accountability but not legal accountability. I think that would just be a huge mistake. Glenn Greenwald addresses Joe's argument in Do we still pretend that we abide by treaties? 02/16/09.

Although people like Scott Horton who have been very serious about pursuing legal accountability for Bush administration officials favor a "truth commission" as a step toward prosecutions, I'm still not convinced that it's a good idea. I'm afraid it would quickly turn into nothing more than a "bipartisan" alibi exercise. These crimes need to be investigated and prosecuted like any other crimes. We don't set up truth commissions to deal with burglaries, embezzlement, or murders. We investigate them and prosecute them where there's evidence to do so.

After the prosecutions are done, then would be the time to have a truth commission to examine the institutional failures in 2000-2009 that allowed things like the Scalia Five appointing the President, the Bush Gulag and torture program, far-reaching politicization of justice, and massive financial corruption to reach such massive proportions. The scandalous role of the mainstream media shouldn't be excepted from the scope of such a post-prosecutions truth commission.

Nancy Pelosi in the reservations about a truth commission she expressed this past week in an interview with Rachel Maddow referred specifically to language in the statute proposed by Senate Judiciary Committee Chairman Pat Leahy that would grant immunity to witnesses before the proposed commission. I may have over-interpreted her comments a bit by characterizing them as saying she didn't think we needed to screw around with a truth commission but just go straight to prosecutions.

But if so, I don't think I overreached by much. Because she's expressing strong concern about the ways a truth commission could interfere with criminal prosecutions. And why do we need a separate commission? Congress has extensive investigatory powers. Why can't the Judicial Committees or a special Congressional Committee do the investigations? Setting up a separate truth commission just offers all kinds of possibilities for a "bipartisan" fest of declaring we should let bygones by bygones so the next Republican administration will be able to pick up where Dick Cheney left off.

Tags: bush administration, torture, war crimes

Legal accountability: Nancy Pelosi supports it

Glenn Greenwald has been a hardliner on legal accountability for Dick Cheney, George Bush and other officials of their administration over the torture program and other serious crimes of which their administration was guilty.

In Pelosi criticizes Truth Commission as inadequate, advocates criminal prosecutions Salon 02/26/09, Glenn approves the statement that the House Speaker gave in an interview with Rachel Maddow to be broadcast Thursday evening, in which she not only endorses the idea of criminal prosecutions. She also expresses serious concern that a Truth Commission such as that proposed by Senate Judiciary Committee Chairman Pat Leahy.

Glenn has been friendly to the Truth Commission idea, which is prominently advocated by human rights attorney Scott Horton, as a useful preliminary investigative phase leading to prosecutions. He even has a post of the same date explaining that: Why a war crimes fact-finding commission could uniquely enable prosecutions.

Pelosi is also talking a little more about the Congressional briefings she and other received on at least aspects of programs like torture and mass surveillance that involved US officials committing crimes. We mostly heard the Republican side of this story, which suggested that knowing about it meant that those Democrats were complicit in the programs.

Which does remind me: I'm glad the Dems are gathering up the gumption to at least talk seriously about proceeding against Cheney-Bush administration criminals. But we urgently needed them to be doing this eight years ago and every years since then. The Scalia Five installing Bush as President in 2000 should have been a signal that the Republicans really, really didn't care about playing by the rules. And it should have set the Democrats to fighting them all the way. But better late than never.

Tags: bush administration, nancy pelosi, torture

The looming cloud of accountability

If the elected Islamist government of Turkey can do it, why can't we?

Turkey is putting 60 officials on trial over a case of torture of a protester who had been taken into police custody, which resulted in the death of the victim. (Folter in der Haft: 60 türkische Beamte vor Gericht Die Zeit 21.01.2009.

Or is it that Islam puts a much higher value on human rights than what the brand of Christianity practiced by much of today's Republican Party?

Not to overstate the point: a number of Americans have been tried and convicted in connection to torture cases, mostly in military courts-martial. So it's not as though the anti-torture laws have been completely in abeyance. But if Turkey can indict 60 people in relation to one case of torture-murder, it illustrates how much more lightly the Cheney-Bush administration took the crime of torture. Because, of course, torture is what they wanted to occur.

John Dean has just published an interview (Legal Jeopardy For American Torturers Here and Abroad? Findlaw.com 01/23/09) with Philippe Sands, author of the excellent study of government lawyers and the Cheney-Bush torture policy, Torture Team: Rumsfeld's Memo and the Betrayal of American Values (2008). In his comments on the interview, Dean's views seem to have evolved significantly from the position he took at the Netroots Nation convention this past July.

The video of the presentation, which also featured Cass Sunstein and Michael Waldman is available at The Next President and the Law. There's a transcript, too, that unfortunately doesn't include most of John Dean's opening presentation.

The panelists, especially Cass Sunstein, seemed genuinely surprised that much of the audience was taken aback and even appalled by the fact that the panelists were assuming that no prosecution of senior officials of the Cheney-Bush administration would take place under the Obama administration. I was certainly among those appalled by it. But I got the impression then, and Dean's new article seems to confirm it in his case, that they were genuinely surprised at the notion. It wasn't so much that they were positively opposed to it. It was like it had never really occurred to them as a serious possibility.

But in his new article, Dean has a more law-and-order take:

Remarkably, the confirmation of President Obama's Attorney General nominee, Eric Holder, is being held up by Texas Republican Senator John Cornyn, who apparently is unhappy that Holder might actually investigate and prosecute Bush Administration officials who engaged in torture. Aside from this repugnant new Republican embrace of torture (which might be a winning issue for the lunatic fringe of the party and a nice way to further marginalize the GOP), any effort to protect Bush officials from legal responsibility for war crimes, in the long run, will not work.

It is difficult to believe that Eric Holder would agree not to enforce the law, like his recent Republican predecessors. Indeed, if he were to do so, President Obama should withdraw his nomination. But as MSNBC "Countdown" anchor Keith Olbermann stated earlier this week, even if the Obama Administration for whatever reason does not investigate and prosecute these crimes, this still does not mean that the Bush Administration officials who were involved in torture are going to get a pass. [my emphasis]

And this comment of Dean's indicates specifically that he has re-thought the issue after being impressed with the level of concern about the issue of Bush officials getting away with serious felonies:

After reading Sands's book and, more recently, listening to his comments on Terry Gross's NPR show "Fresh Air," on January 7, 2009 I realized how closely the rest of the world is following the actions of these former officials, and was reminded that these actions appear to constitute not merely violations of American law, but also, and very literally, crimes against humanity – for which the world is ready to hold them responsible. [my emphasis]

Paul Krugman also gets to the point on legal accountability for lawbreakers of the Cheney-Bush administration in Forgive and Forget? New York Times 01/16/08:

Now, it’s true that a serious investigation of Bush-era abuses would make Washington an uncomfortable place, both for those who abused power and those who acted as their enablers or apologists. And these people have a lot of friends. But the price of protecting their comfort would be high: If we whitewash the abuses of the past eight years, we’ll guarantee that they will happen again.

Meanwhile, about Mr. Obama: while it’s probably in his short-term political interests to forgive and forget, next week he’s going to swear to "preserve, protect, and defend the Constitution of the United States." That’s not a conditional oath to be honored only when it’s convenient.

And to protect and defend the Constitution, a president must do more than obey the Constitution himself; he must hold those who violate the Constitution accountable. So Mr. Obama should reconsider his apparent decision to let the previous administration get away with crime. Consequences aside, that’s not a decision he has the right to make. [my emphasis]

And that's the real bottom line in the actual circumstances we face: "If we whitewash the abuses of the past eight years, we’ll guarantee that they will happen again."

Or, as one questioner at the Netroots Nation panel memorably put it:

Not enough, gentleman. If Obama rejects the unitary executive power, that means for the next four years, probably the next eight, we're okay. But that doesn't do anything for when Jeb Bush comes. What we've seen with the Bush administration is that our constitutional protections are not sufficient. We need something much stronger to protect against this kind of criminal administration. [Applause.]

Tags: bush administration, torture

When known unknowns become known knowns

You knew that Cheney didn't set up that massive surveillance program just to spy on "terrorists" didn't you?

The risk of prosecution is know real, even though the Senate Republicans are slowing Eric Holder's nomination down over prosecution of torture crimes. So people have an incentive to not be among those left holding the bag.

Scott Horton in Did Bush’s Terrorist Surveillance Program Really Focus on American Journalists? No Comment blog 01/22/09 summarizes what Keith Olbermann has reported on the "Terrorist Surveillance Program", as the Cheney conspirators preferred to call it:

Last night on MSNBC’s “Countdown with Keith Olbermann,” we learned that [Bush's CIA Director Michael] Hayden is concerned about more than just allegations that detainees in CIA custody were tortured. Former NSA analyst Russell Tice, a source for the New York Times disclosure of details of the program, appears to offer further details on the program. He reports that under Hayden the NSA was looking at “everyone’s” communications — telephone conversations, emails, faxes, IMs—and that in addition to suspect terrorists, the NSA was carefully culling data from Internet and phone lines to track the communications of U.S. journalists. This was done under the pretense of pulling out a control group that was not suspect. But Tice reports that when he started asking questions about why journalists were sorted out for special scrutiny, he found that he himself came under close scrutiny and was removed from involvement in the program. He found that he had come under intense FBI surveillance and his communications in all forms were being monitored. After expressing severe doubts about the operations of the NSA program, both Deputy Attorney General Comey and former Assistant Attorney General Jack Goldsmith both believe they also came under intense surveillance. Both decided to leave the Bush Administration after these developments.

If Tice’s allegations are correct, then Hayden managed a program which was in essence a massive felony ...

The Beltway Village crew are heavily invested in not seeing these things fully exposed, much less prosecuted.

But since our main national news organizations focus on producing infotainment instead of actual news reporting, it will probably be only prosecutions and maybe Congressional investigations that expose the extent of the wrongdoing of the now-gone Cheney-Bush administration.

Tags: bush administration

Too ill to stand trial?

I see a Pinochet too-ill-to-stand-trial defense in the making: Cheney In Wheelchair For Inauguration Huffington Post 01/19/09. Yeah, the poor man is practically an invalid.


In other news, Bush isn't going to pardon Scooter Libby. As I understand it, a pardon would make it difficult if not impossible to refuse to testify on Fifth Amendment grounds against self-incrimination in other trials or Congressional investigations. But since Bush only commuted his sentence (just after her was convicted), he can still take the Fifth in upcoming trials on matters touching the Plame case. An honest administration might make available previously-secret material that would allow further prosecutions in the Plame case. I mean, unless the wheelchair guy is too ill to go to trial.

In a final kiss-kiss to the Ron Paul crowd, Bush is extending his Christian compassion to a couple of heroes of the white supremacists and xenophobes. Dave Neiwert has the story in Bush's Last Day: A commutation to please the nativist wingnuts of the GOP Crooks and Liars 01/19/09. Dave notes, "the Greater Wingnuttia is ecstatic."

But there is some good news. News getting better by the minute, actually:

Tags: bush administration, cheney, war crimes

A legal precedent on chief executives and torture

Scott Horton in Bush’s Torture Confession 01/12/08 at his Harper's blog No Comment points to an important legal precedent in Anglo-Saxon law for when a chief executive of the government directs or knowingly allows prisoners to be tortured.

Horton isn't advocating that the penalty be the same. But he does advocate that it be treated as a criminal matter.

King Charles I of England

Tags: bush administration, scott horton, torture

Accountability and the rule of law

Hecht-Nielsen, The Grand Inquisitor

It's a poor headline: Obama: Gitmo Likely Won't Close in First 100 Days by Mary Bruce ABCNews.com 01/11/09. But the article reports on Obama's interview with George Stephanoopoulos on This Week. And Obama's answer on closing Guantanamo sounded good to me. In the segment I saw, Stephanopoulos didn't ask him about the rest of the Bush Gulag, the various secret detention centers like at Bagram Air Force Base in Afghanistan. But I don't see that there's any essential difference in the type of facility, at least based on the limited amount we know about those other facilities.

From the transcript of the 01/11/09 broadcast:

STEPHANOPOULOS: You also agreed on Guantanamo when you say you want to shut it down. You say you're still going to shut it down. Is it turning out to be harder than you expected, will you get that done in the first 100 days?

OBAMA: It is more difficult than I think a lot of people realize and we are going to get it done but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it's true. And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo American legal system, by doing it in a way that doesn't result in releasing people who are intent on blowing us up.

STEPHANOPOULOS: So not necessarily first 100 days.

OBAMA: That's a challenge. I think it's going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do. But I don't want to be ambiguous about this. We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our constitution. That is not only the right thing to do but it actually has to be part of our broader national security strategy because we will send a message to the world that we are serious about our values. [my emphasis]

This is an encouraging answer to me, although we'll see later what the specifics turn out to be. He's addressing there the continuing Republican verbal bogeyman of what happens if we release somebody from Guantanamo and they then go off to be terrorists again. This is an elementary question of all justice systems. But Cheney and Bush decided to handle those detainees under their own lynch-law system, disregarding the established procedures in national and international law that were already in place.

It seems to me that the only real course Obama can take consistent with what he's been saying on this issue is to go back to the actual legal procedures. Fighters captured on the battlefield - or, as in Afghanistan, turned over to the Americans by Afghans in return for a cash bounty - have to be put before an impartial tribunal to determine whether or not they are prisoners of war. If they are, then they have to be treated as POWs in accordance with the Geneva Conventions.

If they aren't, they have to be prosecuted according to existing American law or the laws in the country in which the crime occurred. Timothy McVeigh was convicted in a fair trial for the Oklahoma City bombing, sent to prison and executed. But Cheney and Bush preferred their lynch-law system to the established justice procedure that works.

And Obama's answer to Stephanopoulos points to a basic problem of the Cheney lynch-law Cheney: "some of the evidence against them may be tainted even though it's true". Using procedures that taint the evidence, such as torture, may make it more difficult to win convictions even against some defendants against whom their is strong evidence. But in any fair trial, acquittal is always a possibility. That's part what the "fair" thing is about. I would expand the comment and say "some of the evidence against them may be tainted even though it's true" and I wish some of the Republicans and far too many Democrats in Congress who supported the Cheney lynch-law system had stopped to think about this in 2001 and 2002.

I'm less happy with Obama's comments on prosecutions for felonies committed by senior officials in the current administration:

STEPHANOPOULOS: The most popular question on your own website is related to this. On change.gov it comes from Bob Fertik of New York City and he asks, "Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping."

OBAMA: We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering (ph).

STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?

OBAMA: We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward.

STEPHANOPOULOS: So, let me just press that one more time. You're not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence wherever it leads?

OBAMA: What I -- I think my general view when it comes to my attorney general is he is the people's lawyer. Eric Holder's been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he's going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past. [my emphasis]

Obama's being cagey about this one. Pro-accountability people can take a phrase like Holder's job being "uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics" as a sign that he's open to prosecutions, or recognizes that prosecutions are necessary under the law even though he might prefer not to do them.

Pro-crime and pro-let-bygones-be-bygones-for-Republican-lawbreakers listeners can take phrases like "my orientation's going to be to move forward" as supporting the pro-Republican-crime position.

It strikes me that Obama's comments there track very closely with the approach Cass Sunstein took last July at the Netroots Nation convention. See video at The Next President and the Law. The whole video is good, but it's over an hour and it doesn't seem to have the capability of jumping to a particular point forward in the video. Fortunately, there's a transcript, that unfortunately doesn't include most of John Dean's opening presentation. Very near the end, during the question portion this exchange takes place (my emphasis in bold):

[Sunstein:] I appreciate this, what you say. And there's only one sentence that I very clearly disagree with, and that is, "Republicans are evil." I don't agree with that. President Roosevelt, our greatest 20th Century President – [applause] – yay for that – referred to Republican leadership in harsh terms, but never called out Republicans. And I think that's good strategy.

Outrage is appropriate, but there's looking backward and looking forward, and we have to kind of do both at once. And what I worry about a little bit is that sometimes outrage is a great motivator of looking forward at the incredible opportunity we have. Let's be more excited about the next two years, even, than furious about the last eight, I think. [Applause.] But you're right, you ARE right that the excitement has to be informed by an appreciation.

I don't believe – just to clarify – that people who have violated the law should be happy and rich because they work for the government. Crimes are a different matter from the sorts of things I'm being cautious about – calling people out on. If there are crimes, federal crimes, then that can't be just blinked away.

Adam Bonin

Okay. Next question.

Male Audience Member

Not enough, gentleman. If Obama rejects the unitary executive power, that means for the next four years, probably the next eight, we're okay. But that doesn't do anything for when Jeb Bush comes. What we've seen with the Bush administration is that our constitutional protections are not sufficient. We need something much stronger to protect against this kind of criminal administration. [Applause.]

That session provides some very good background on some of the relevant legal issues and the larger issue of the transition from the Cheney era to a normal rule-of-law administration.

But even John Dean seemed somewhat reluctant to recommend prosecutions. He mentioned in his speech that's mostly omitted from the transcript about how Obama responded to a question on this during the campaign. He returned to it in the question period:

Adam Bonin: I have one question that I want to ask our panelists, and then we've got a microphone available for your questions as much as time permits, and I encourage you to line up behind it. And this is on something, Michael, that you
address, and that I think a lot of people would like to get into, and that question is, how much energy should the next Department of Justice put into investigating and potentially prosecuting abuses by this administration?

John Dean

Well, we certainly know that candidate Obama has said he would do this. He's hedged it; he's qualified it ... whether it's a determination of bad policy or blatant violations of law. It is a huge break in precedent that a candidate would say that he's not going to just give his predecessor a pass, which has been the norm, of course, where no one has BEEN investigated.

So the question is, how much energy and time should be devoted to this? Actually, I think there are other things that require more time, like plowing through OLC's secret memos that we don't know about, and so many of the foundations upon which ... And for the audience that doesn't know the impact of OLC, they really give the legal basis for the rest of the government as to how they can or cannot operate. And some of those are public; some of them are not. Similarly with executive orders. [my emphasis]

In the video, Dean called Obama's response to the question on this "a very thoughtful and precedent-breaking example". Obama had said he would have his Attorney General - Dean pointed out that Obama used the word immediately - "investigate as to whether this is a distorted policy that they have been using or a blatant violation of the law." (Dean's words, not the direct Obama quote.) Dean went on to say that he hoped Obama would follow through on that.

Last week, Obama was using the formulation on the torture issue of, "I was clear throughout this campaign and was clear throughout this transition that under my administration the United States does not torture. We will abide by the Geneva Conventions. We will uphold our highest ideals." Some have expressed concern that his phrasing of "the United States does not torture" mirrors Bush's repeated assertions to that effect during his administration. In Bush's case, it was a combination of a legalism and a preppie sneer, a claim that no mistreatment of detainees that he had permitted could be called torture.

Digby has a good post on this, In The Future America Does Not Torture 01/10/09. The remainder of this post incorporates most of a long comment I left there.

Maybe I'm being too generous. But I read Obama's statements as saying (awkwardly) that the true America doesn't torture. Maybe he should put it that the "real America" doesn't torture.

It's entirely possible that he's using cagey phrasing to avoid setting off a panic that would lead Bush to hand out a bunch of pardons. I still haven't heard anyone who actually knows say whether the United States could prosecute someone using international law in American courts even if the person had been pardoned under federal law. Based on my own lay-person's understanding, I think it could be done.

I think there are some of Rummy's "known unknowns" out there in the torture program, e.g., we know people were murdered but we don't know how many. Robert Fisk in one of his columns referred to rumors that deaths in the Bush Gulag (as Al Gore called it) could run into the thousands. As Fisk put it, if mass graves turn up in this thing, that pushes the problem to an even uglier level. And there are probably "unknown unknowns", too, which may be the source of some of the churning on this from surprising sources.

I continue to think that not only the torture policy but intelligence deceptions, malicious political prosecutions, and the massive corruption we saw from Iraq to Katrina to (I'm very confident though there's no hard evidence yet) the financial bailout, all those things need to be prosecuted so that they will be stigmatized for future Dick Cheneys and their potential accomplices.

The torture policy in particular is such a radical violation of the basic rule of law that I just think it has to be treated as a criminal matter.

But I do disagree with suggestions that the actual torturers should be allowed to skate. I've started to identify the torture policy with the old lynch-law mentality. So I'll use an analogy and say that would be like prosecuting a governor or local Shurff who instigated or tolerated a lynch-murder but not prosecuting the people who actually tortured and murdered the victim. They all should be prosecuted.

And, like in Mob and white collar prosecutions, it often takes charges against lower-level perps to get hard evidence on the higher-ups.

The other thing about the individual torturers is that the torture policy involved the military in practicing clearly illegal actions. I know we're all supposed to preface any comments about our sacred military and our glorious generals with nice adjectives about their dedication, courage, etc. But torturers in uniform weren't being good and honorable soldiers. They were being torturers and, in at least some cases, murderers. And some of them actually have been prosecuted by the military, though the military has been very protective of higher-level military facilitators of the torture policy. But this whole policy was a major, radical departure from military discipline and the laws of war.

A final point on prosecuting the actual torturers. The Republicans have verbally worried a lot about what would happen if "unlawful combatants" were released from the Bush Gulag. But I haven't heard one single Republican - or, I suppose it's superfluous to say, a single Big Pundit - worry about what happens when all those trained torturers are released back into society. Soldiers in combat usually don't come back home to be wanton murderers. But that's largely because military discipline functions.

The torture policy involved a radical breakdown of military discipline. And what kind of sick **** doesn't say "no, I'm not going to do it" when ordered to commit some of the very physical perversities that have been in the US torture menu? Just as there was no case in the German Wehrmacht in the Second World War of a soldier being seriously disciplined for refusing to commit a war crime, I haven't heard of any American soldiers or CIA employees being disciplined for refusing to torture. When they come back home, are all of them going to be able to satisfy their acquired tastes by watching 24 or S&M porno flicks? I seriously doubt it. I prefer to see them taken off the streets for a few years and required to get psychiatric treatment, as well.

Tags: bush administration, rule of law, torture

Legal accountability

The New York Times on 01/10/09 has three op-ed writers weighing in on trials for senior-level law-breakers in the Cheney-Bush administration.

Charles Fried of Harvard Law School in History’s Verdict says it would be "savage" to prosecute those responsible for torture, malicious political prosecutions, massive corruption and the like. The civilized thing is to just wait until the next Republican administration takes the Cheney program to the next level of the Unitary Executive. Why, prosecuting these fine public servants would be like Hitler killing the SA leaders in the Night of the Long Knives in 1934? You don't want to be like Hitler, do you? If foreigners commit war crimes and we're on the other side, then sure we can prosecute them. Let's just be content with remembering that a few of these fine folks from the outgoing administration got a little carried away here and there.

Dalia Lithwick of Slate in Forgive Not makes a good argument for actual prosecution, though she also seems to think that John Conyers' proposal for a commission is a good idea. Given the weight of Beltway Village opinion against legal accountability, I think that establishing such a commission in the absence of prosecutions (which would presumably be handled by a special prosecutor) would be worse than nothing. Conyers is proposing yet another bipartisan commission. Sure, hey, Dick Cheney will be a private citizen by then. Maybe we can appoint him as the Republican co-chair with "bipartisan" alibi-man Lee Hamilton to balance him out on the Democratic side. After all, Cheney knows quite a bit about the subject matter already. He's an actual expert in it, as a matter of fact. She also makes the argument that by just forgetting and forgiving, "We are also forgiving ourselves." Say what? Yes, the public has a responsibility to maintain democracy. But the perpetrators of torture are the ones guilty of crimes, not the majority of the public that opposed those practices.

Jack Balkin of Yale Law School, whose Balkinization blog is a valuable resource on a range of legal and constitutional issues, in A Body of Inquiries also argues for truth commissions to investigate this administration's misdeeds. He thinks that the legl type opinions from administration legal authorities would likely shield them from prosecution. But that sounds like a very dubious assumption to me. Just having your Mob lawyer say it's okay doesn't mean that it's legal. The basic problem with the truth-commission(s)-only approach is that shining light on all those misdeeds is fine. But the Republicans know about them already and support them. They would prefer to not have them talked about, sure. But unless some meaningful legal deterrent is established - and it seems to be only actual prosecutions can do that in this situation - the next Republican administration can be expected to resume the same practices. And worse.

If there had been substantial resistance within the Republican Party to this administration rogue-state practices internally and externally, then there would at least be some more reasonable hope that truth commissions could be effective even without prosecutions. But after Watergate, Iran-Contra and now eight years of far worse abuses supported virtually unanimously by the Republicans in Congress, that assumption sounds empty to me.

I'm tempted to say that this is a good example of the concept of repressive tolerance. With respectable opinion hostile to the idea of prosecuting Republicans for outrageous violations of domestic and international law on very substantial issues, the Times provides a forum for three people to address the issue of legal accountablility. Two of the three advocate the Village conventional wisdom. The third advocates prosecutions though also with a nod to what sounds like a toothless and worse-than-useless bipartisan commission.

The dissenting position - in this case, the notion that public officials have to obey the law and that something that violates the rule of law so fundamentally as the torture policy can't be treated like some political pecadillo - gets a hearing in the leading newspaper, where it can be safely disregarded by those devoted to the conventional wisdom.

Tags: bush administration, bush doctrine, torture

Nixonism and Cheneyism

Joe Conason draws and unusually clear line of descent from Richard Nixon's theory of government, in which the President is above the law, to Dick Cheney's "Unitary Executive" theory of the President as a plebiscitary dictator in Nixon Admitted What Cheney Won't New York Observer 12/23/08:

The founding document that every federal official swears to uphold is replete with limitations on the executive power. George Washington warned against those who would seek to expand that power by usurpation, and we have seen that come to pass. Among the most urgent tasks of the new president - as he and his vice president seem to realize - will be repairing the damage done to law and justice by Nixon's unrepentant heirs.

Digby, Glenn Greenwald, and numerous others have been pointing out that there has been a series of criminal actions by a series of Republican Presidents - Nixon with the "Watergate" set of crimes, Reagan with Iran-Contra, now Dick Cheney and George Bush with essentially their entire Predator State administration. A number of officials went to jail over Watergate. But Jerry Ford, whose chiefs of staff as President were first Rummy and then Cheney, pardoned Nixon himself, effectively putting his action above the law.

Over time, the Democrats increasingly bought in to this approach. They didn't attempt to impeach Reagan. And eventually many of the key players in Iran-Contra not only escaped legal responsibility. But many of them became major players in the Cheney-Bush administration, with scarcely a peep from the Democrats.

The "October Surprise" case, in which Gary Sick and Robert Perry have laid out compelling circumstantial evidence, that the Reagan campaign in 1980 carried on secret and illegal dealings with the Iran revolutionary government to delay release of the American hostages, was essentially ignored. The cursory Congressional investigation was little more than a farce, ending with that professional "bipartisan" Democratic Congressman Lee Hamilton declaring that there's nothing to see here, everyone move on.

Last week's news about a newly-released tape of Lyndon Johnson talking about "treason" on the part of the Nixon campaign in stalling the Vietnam Peace Talks in 1968 was greeted by the national press and the political establishment with a collective yawn, to the extent that they noticed it at all. Those dealings have long been well-established historically. But fresh confirming information should have generated more than passing interest.

Now the Beltway Village, including many Democrats who surely know better, are willing to let the massive lawbreaking of Cheney, Bush and other senior officials go with no criminal investigations or prosecutions, except for lower-level perpetrators who (though deserving punishments) are made scapegoats for high-level criminal acts like the creation and implementation of the torture policy.

The Democrats' fecklessness over the years on such major Republican crimes, crimes which go to the heart of the Constitutional system, has become an essential part of the process. And the massive dysfunction of the Establishment press, which is apparently entering a new phase of decadence with their obsession over the non-scandal of Obama's non-involvement in the Blagojevich corruption allegations, has been an immense aid to Cheney-style official lawbreaking.

I'm guessing that one of Cheney's reasons for so openly bragging about the criminal actions like the torture policy that they've gotten away with is to dare the Democrats to put up or shut up on those acts. This current administration established in practice how the American Constitutional system on a national basis can be subverted into a pseudo-democracy not unlike that practiced by the Deep South from roughly 1875-1965.

With an authoritarian Republican Party willing to facilitate virtually any action by a Republican President or obstruct any action by a Democratic President, with a federal judiciary dominated by Republicans, with a Justice Department run by cronies willing to act like Mob lawyers, with a demonic Foreign Enemy to keep the public afraid, with cooked intelligence provided by cowed intelligence services, with massive surveillance power and with the ultimate dictatorial tool of torture, they were able to get away with running a government acting in many essential respects outside the law and the Constitutional for eight years.

The only thing lacking in the Cheney scheme is a subsequent Democratic administration and Democratic-controlled Congress that lets those criminal activities go unpunished. Censuring them or publicizing them isn't nearly enough. Cheney is out there bragging already about what they got away with.

If the Democrats go along with that scheme, the next stage of Cheneyism is easy to picture. When the next Republican President gets elected - and there will be one, eventually, unless the Republican Party as it exists just falls apart - they can expand on what Cheney has already shown can work. They can intensify voter suppression and real voter fraud, both hiding behind the need to fight phony "voter fraud" by voter-registration groups like ACORN. They can make more systematic use of the unlimited surveillance powers Cheney and Bush claimed for themselves. They can expand the use of arbitrary arrest, torture and prolonged detention of American citizens as "unlawful combatants" that they practiced in the Padilla case.

The segregated Deep South states never formally abolished Constitutional government. They had tried that during the Civil War and it didn't work out so well. But they were able to go for seven decades without practicing Constitutional government in a substantive sense. It had the legal form of democracy, but much of the essential content was gutted.

That comparison shouldn't be pushed too far, though. The segregated states were always constrained by some limits imposed by the federal government. But those experiences, combined with similar lessons from some of the legendarily corrupt city political machines and state-of-the-art surveillance techniques could establish something very similar on a national scale.

As we've seen in the Dan Siegelman and other cases, Cheneyized Republicans won't hesitate to use the justice system in criminal ways to push partisan prosecutions. The Democrats have to be willing to use the justice system to prosecute real crimes that go to the heart of democratic government.

And the surprising bipartisan Senate Armed Services Committee report assigning responsibility for the torture policy to senior administration officials - a report virtually ignored by the Lapdog Press, slavering over Obama's non-scandal with Blagojevich - gives some glimmer of hope that impartial justice hasn't yet become entirely a partisan cause defended only by Democrats.

Tags: bush administration, torture

Obama and the transition period

The cloud of darkness is still with us

Barney Frank came up with what will probably be the definitive judgment on Bush's "lame duck" months between November's election and Obama's inauguration. Speaking of the saying that we have only one President at a time, Franks said, "I'm afraid that overstates the number of Presidents we have."

Bush has been largely AWOL from efforts to stem the collapse of the economy. In itself, that's not a bad thing.

But Joan Walsh calls attention to a meme that Secretary of the Treasury Paulson's people seem to be floating, that Obama is showing insufficient leadership (Let Obama be Obama Salon 12/05/08).

Actually, it seems to me that he's been doing an unusually good job of speaking as the national leader during this period. It's obvious that Bush and Cheney are pretty useless in dealing with the crisis. And I don't say this often. But as I predicted, the necessary bailout for the financial institutions has been implemented consistent with the Cheney-Bush "predator state" style.

James Galbraith in his book of that name, argues that the incompetence most of us see in this administration is actually only a side-effect of its mode of operation. When most of the public looks at the government, we expect it to be able to ensure airline safety, keep the food supply untainted, taking effective emergency measures when a major American city is drowning, and stop the private financial system from failing. Just to take some random examples.

So we look at the administration's failure to do these things and we think they're incompetent. But the administration is not interested in providing public services or effective government. They're interested in helping their cronies and Halliburton and elsewhere enrich themselves at the public expense.

And Bush actually is still useful at that. At the rate he's been removing anti-pollution restrictions, turning public land over to be exploited by private companies, and so on during the transition, you wonder if we'll have any environmental protections left by Inauguration Day.

Global warming? Hail, boy, we got air conditioners in Texas!

Tags: barack obama, bush administration

And we still have two months to go?

The Cheney-Bush administration is practicing its signature "virtues" of cynicism, secrecy, deception, incompentence, and reckless disregard for Congress and the American people right up until the end: U.S. staying silent on its view of Iraq pact until after vote by Adam Ashton, Jonathan S. Landay and Nancy A. Youssef, McClatchy Newspapers 11/25/08.

You know that status-of-forces agreement that the Iraqi Parliament is debating this week? Well, our public servants in the Vice-President's Office and the White House have been withholding the official English translation from the American press and public! McClatchy reports:

Officials in Washington said the administration has withheld the official English translation of the agreement in an effort to suppress a public dispute with the Iraqis until after the Iraqi parliament votes.

"There are a number of areas in here where they have agreement on the same wording but different understandings about what the words mean," said a U.S. official who requested anonymity because he was not authorized to speak to the media.

McClatchy has posted an official translation, though not officially released.

And, as always, Cheney and Bush claim they can interpret the thing any dang way they please. Which is their way of saying that for them, its not worth the paper its written on, at least written in Arabic somewhere. They think a Republican President can just do whatever he wants:

The Bush administration has adopted a much looser interpretation than the Iraqi government of several key provisions of the pending U.S.-Iraq security agreement, U.S. officials said Tuesday — just hours before the Iraqi parliament was to hold its historic vote. ...

Among the areas of dispute are:

• Iraqi legal jurisdiction over U.S. troops or military contractors who kill Iraqis on operations. The agreement calls for Iraq to prosecute U.S. troops according to court procedures that have yet to be worked out. Those negotiations, administration officials have argued, could take three years, by which time the U.S. will have withdrawn from Iraq under the terms of the agreement. In the interim, U.S. troops will remain under the jurisdiction of America's Uniform Code of Military Justice.

• A provision that bars the U.S. from launching military operations into neighboring countries from Iraqi territory. Administration officials argue they could circumvent that in some cases, such as pursuing groups that launch strikes on U.S. targets from Syria or Iran, by citing another provision that allows each party to retain the right of self-defense. One official expressed concern that "if Iran gets wind that we think there's a loophole there," Tehran might renew its opposition to the agreement.

• A provision that appears to require the U.S. to notify Iraqi officials in advance of any planned military operations and to seek Iraqi approval for them, which some U.S. military officials find especially troubling, although Robert Gates, the secretary of defense, Army Gen. David Petraeus, the head of the U.S. Central Command, and Army Gen. Raymond Odierno, the top U.S. commander in Iraq, all have endorsed it.

"Telling the Iraqis in advance would be an invitation to an ambush," said one U.S. official, who said the Iraqi government and security forces are "thoroughly penetrated by the insurgents, the Iranians, the Sadrists (followers of anti-American Shiite cleric Moqtada al Sadr) and ordinary folks who just sell scraps of intelligence."

The Shi'a dominated Iraqi government is "thoroughly penetrated" by Sunni insurgents, Shi'a insurgents and Iranian agents? After the incomparable success of the exceedingly brilliant Surge, the greatest success every in the history of counterinsurgency?

This is yet another reason why Congress should review this thing before its approved. If the administration negotiating the agreement has no intention of complying with it - and maybe has good reason not to comply in some cases - then why are Cheney and Bush approving it at all?

This nightmare administration just can't end too soon!

Tags: bush administration, iraq war