"Off with their heads!" (New York Times op-ed/Qaddafi version)

Historian Simon Bebag Montefiore has an op-ed gushing over the edifying spectacle of disposing of dictators by lynch-murder in the respectable Gray Lady, the New York Times, Dictators Get the Deaths They Deserve 10/26/2011. His flimsy justification:

The problem with such dictatorships is that as long as the tyrant lives, he reigns and terrorizes. As Churchill put it, "dictators ride to and fro upon tigers from which they dare not dismount."

Only death can end both the spell to bewitch and the prerogative to dominate - and sometimes, not even death can snuff out power. "The terror inspired by Caligula’s reign," wrote Suetonius, "could be judged by the sequel." Romans were so terrified of the emperor that it was not enough to assassinate him. They wanted to see him dead: fearing it was a trick and lacking cellphone footage, they had to be convinced. The mile-long line of Libyans who were keen to see Colonel Qaddafi'’s cadaver in its shop-refrigerator-tomb would understand this perfectly.

If what one wants is to strenthen the rule of law, as opposed to providing opportunities for the voyeurism that has always drawn eager crowds to public executions, the approach Argentina has taken toward officials who committed gruesome crimes during El Proceso, the military dictatorship of 1976-83, works much better. They give them the kind of fair trials they denied their victims. And if they are convicted in a court of law that produces sufficient evidence of their crimes, they are sent to prison. For a very recent example, see Argentina's "Angel of Death" sent to prison CBS News 10/26/2011. Here's a report on the case from Euronews (YouTube date 10/27/2011):



Glenn Greenwald has some useful thoughts about the corrosive effects of disposing of our Bad Enemies through summary execution in A remaining realm of American excellence Salon 10/22/2011.

Simon Montefiore obviously prefers the spectacle of lynch-mob justice.

I prefer to see the Argentines in the Euronews video above cheering for justice being done under the rule of law.

I hope one day that we also see those American officials responsible for torture crimes and illegal assassinations face justice in US courts.

Tags: argentina, assassination, libya war, rule of law

Rule of law

The torture issue is not going away. But the Obama administration still wants it to.

It is the responsibility of the federal government to enforce the laws of the country, even when it's serving officials who commit the crimes. And the torture crimes committed by the Cheney-Bush administration.

Progressive in the US have noticed with chagrin that Britain is holding what is a barely-disguised cover-up inquiry over the beginning of the Iraq War. But even their method of sweeping under the rug the crime of launching an illegal war looks like aggressive investigation compared to how we now handle such crimes in the United States: Blair at the Iraq inquiry: No regrets Guardian editorial 01/30/10.

Hans Blix, who was extremely unfairly maligned by the neocons and assorted warmongers for reporting honestly about his findings on Iraq's non-nuclear "weapons of mass destruction" programs (which were non-existent, as was the alleged nuclear program), in Blair's blind faith in intelligence Guardian 01/28/10 how cynically Blair and his leaders in Washington used the weapons inspections to justify the 2003 invasion.

The story of the Iraq War and the torture issue are very connected, though the torture program had already begun with the Afghanistan War. The mobilization of fear after the 9/11 attacks - and the still unsolved anthrax attacks soon after - and the military mobilizations (physical and psychological) around the Afghanistan War, the Iraq War and the "global war on terror" were the justifications that the Cheney-Bush administration successfully used to initiate the torture program and massive domestic surveillance.

Serious crimes were committed by government officials. It was the responsibility of the Ashcroft, Gonzales and Mukasey Justice Departments to prosecute those crimes but they obviously did not. It is still the responsibility of Obama's Justice Department under Eric Holder to prosecute those crimes. But instead they have shielded the perpetrators.

Very discouraging news reports are now indicating a new cover-up by Holder's Justice Department, this one applying to the torture lawyers who provided the Mob-style legal justifications for the torture program: bmaz, OPR Report Altered To Cover Bush DOJ Malfeasance Emptywheel 01/29/10; Michael Isikoff and Daniel Klaidman, Justice Official Clears Bush Lawyers in Torture Memo Probe Newsweek 01/29/10.

The consequences of the torture policy are too far-reaching and too basic a violation of the rule of law for the issue to sink into the mists of government cover-up as the Obama administration clearly want them to. The administration shirked its duty in not pursuing prosecutions of torture perpetrators immediately. And it continues to do so.

And it's a dramatic symptom of the Fighting Gap between the Democrats and Republicans that the Democrats, instead of seizing the clear political advantage of discrediting the Republicans for their open embrace of official criminality, they ran the other way and happily perpetuate the official cover-up.

The Republicans, on the other hand, are willing to impeach a Democratic President over a sad love affair.

This may actually be most telling symptom of how dysfunctional the Democratic Party has become in responding to the needs of its constituents. If the Party is unwilling to take a stand on a basic question of the rule of law when there are obvious political advantages for doing so, what is really going on with the Democrats?

Tags: accountability for torture, rule of law

Obama and restoring the rule of law

There's a German concept called Lebenslüge, which literally means life-lies, or "lies we live by". If we put in American self-help language, we could call it "lies to live by".

We're into the 20th-anniversary period of the fall of the Communist Eastern bloc which was followed by the fall of the Soviet Union. Basically no one outside say those developments coming. Nor inside those countries for that matter. Certainly not Michael Gorbachev, a committed Communist who was drawing on his understanding of the West, the radical-democratic aspects of Marxist theory and his recognition of the chronic economic problems of the Soviet Union to try to establish a successful socialist society and government based more on a classical social-democratic model than on Marxism-Leninism as the Soviets had previously understood it.

Certainly not the democratic opposition in East Germany, for whom the fall of the Berlin Wall in November 1989 was as complete a surprise as it was to everyone else. Probably more so. The leaders of the opposition were largely committed socialists and Greens who were also looking to create a democratic East Germany not based on West German style capitalism.

At the time, for a brief time, it almost seemed like a pacifists' dream of even 10 years earlier coming true. The great Enemy of the Cold War had literally ceased to exist. A Republican administration, with Old Man Bush as President and Dick Cheney (!?!) as Secretary of Defense was shutting down military bases and putting in place new arms agreement to radically roll back the nuclear threat, even to help the former Soviet Republics decommission and destroy many of their nuclear weapons.

That period didn't last much longer than the Gulf War of 1991. In the years following the United States continued to see it as our mission to run the world, more or less. Instead of a period of peace, a new period of military interventions came. I want to be clear here: it's possible and necessary to differentiate between Bill Clinton's more careful and limited interventions in places like Haiti, Bosnia and Kosovo from the historical disaster we know as the Iraq War. But the Cold War turned out to be the Long War. Along with the downsides of being a garrison state.

I remember hearing Jerry Brown in the 1990s talk about the fact that the Revolutions of 1989 in Europe hadn't yet had a counterpart in the West. I'm starting to wonder if the counterpart hasn't already come with Ken Starr, Dick Cheney and Judith Miller among its creators.

Because its hard to see how you can try to be a responsible citizen attempting to understand basic things about public affairs and not wonder on a regular basis if the substance of American democracy hasn't been effectively reduced to show business, a spectacle, as the Situationists in the 1960s conceived it. Bill Moyers a few weeks ago talked about how our public affairs had become "the greatest show on earth" - meaning literally a spectacular show at which we have to marvel at its elaborate strangeness. This is where the "lies to live by" concept comes in. In substantial ways, our political elite go through the motions and rituals of democracy while increasingly seeming no to even notice how far the reality departs from the pretence.

In other words, I wonder if the American counterpart to the Revolutions of 1989 hasn't been to entrench a form of Potemkin democracy that's even less responsive to the public's needs than before.

I usually force myself to watch the Political Wrap feature of the PBS Newshour every Friday, the weekly clown show whose regular clown stars are David Brooks for the conservative Republican side and Mark Shields, ostensibly and sometimes actually for the liberal Democratic side. I usually hate myself afterwards. It's kind of like looking at porn and feeling guilty about it afterwards. Actually, it would probably be much better for me to just look at dirty pichers for 15 minutes instead of the Political Wrap. But I'm addicted to the bad stuff, I'm afraid.

I plan to post two or three times about this past Friday's segment, which stood out for how well it displayed the bankruptcy of Beltway Village attitudes toward politics and the collapse, and I mean walls of Jericho tumbling down collapse, of the quality of American journalism, especially on TV. And this is quality TV, PBS, the bogeyman of the Republicans for being "liberal media" funded in part by tax dollars.

Friday's clown show can be found at Shields and Brooks Gauge 9/11 Trials, Afghan Troop Decision 11/13/09. The first topic they took up was Attorney General Eric Holder's announcement that the 9/11 suspects would be tried in civilian court for the attack. Clown Brooks raved about the whole notion of a civilian trial was hideously bad and a surrender to The Terrorists. Clown Shields sadly grumped that Holder should have consulted the President before finalizing the decision, but that the Supreme Court had forced him into it, and mumbled something about how there would probably be a hung jury. Clown Brooks mentioned in passing that other accused terrorist would be tried before military commissions.

Neither Clown Shields nor moderating Clown Jim Lehrer seemed to be fazed in the slightest at "conservative" Clown Brooks basically dismissing the whole concept of civilian trials as being awful. Or even to notice how radical his formulation was. None of the clown show cast seemed to think the more serious and very far-reaching implications of the Obama administration's decision to use the sham military commission system to try some of the long-time prisoners from Guantanamo and elsewhere outside the civilian system.

Up until now, I have managed to hold on to the hope that the Obama administration had simply foolishly passed up the opportunity to dump the responsibility for the entire legal mess that the Cheney-Bush administration created back onto them. He started off by announcing that he would close the Guantanamo gulag by this coming January, a pledge now completely abandoned. The established legal mechanisms for dealing with both terrorists and prisoners of war were there in 2001 and were still there in January 2009. Obama could have insisted on putting all those incarcerated back into the normal military and civilian justice systems where they have always belonged. And he could have effectively said to clowns like David Brooks, "if you think this won't provide a satisfactory outcome, then complain to your old heroes Bush and Cheney and Rummy, because they are the ones that created this mess because they wanted to torture people."

And he could have pushed Holder to appoint a special prosecutor to investigate the torture crimes, or even to hold via regular Justice Department channels the legal investigations that American law and the treaty obligations under the Torture Convention of 1984 require.

In other words, Obama the constitutional scholar and now President could have taken a straightforward stance in defense of the rule of law. That is not the course he chose.

The effects of his current approach are huge. He may favor less vicious, sadistic and unjust treatment of prisoners than his predecessor. But his actions are creating precedent-setting, political and even legal validation for the radical Cheneyist claims of the "Unitary Executive", which holds that the President can simply disobey the law and the Constitution and permit anyone else to do so as long as he claims it's for national security, a claim that is the President's to make without review. And as we've seen, in the Long War, everything has to do with national security, at least according to the claims of the Cheneys of the world.

Obama's position may have had to do with the need to arrange his Presidential relations with the military establishment, as John Dean argued in The Politics of Excusing Torture In The Name of National Security Findlaw 05/15/09, a grim enough possibility in itself. But as we've seen in the health care reform battle, Obama's basic political instincts are pragmatic and, yes, even conservative. He's not going to reverse himself on his acceptance of Bush's national security crimes unless forced to by the courts, the Congress and the Democratic base. Again, just to be clear, pragmatic and sometimes conservative is a radical improvement over the Cheney-Bush years.

But the rule of law issue has to be addressed. The torture issue isn't going away. Ask the people in Argentina still being brought to justice for their crimes during El Proceso, the military dictatorship of 1976-83. Torture isn't the only serious legal issue left over from the Cheney-Bush years. But it's the one that goes to the very existence of the rule of law. Torture is the necessary tool of the Unitary Executive.

I'm going to return in another post to Friday's Brooks-Shields-Lehrer Clown Show. But for now, here are some of the pieces I've seen recently addressing how serious the current legal issues around accused terrorist suspects are:

Glenn Greenwald in Salon: The Right's textbook "surrender to terrorists" 11/14/09, on the contempt conservatives show for the American legal system and the perpetual climate of fear which they seek to reproduce; The new WH counsel and "Scooter Libby justice" 11/14/09, on the extent to which the notion that the national security elite should be above the law is endemic even in liberal Beltway circles, in which Glenn reminds us, "A restoration of the rule of law -- meaning an end to immunity for high-level political officials who commit crimes -- was a central prong of the Obama campaign"; Detainees to get the "state-always-wins" system of "justice" 11/13/09. He notes in the last one a paradox of this situation. Rule-of-law advocates who are the most critical of Obama's use of military commissions are going to be the most vocal defenders of his use of civilian justice to try the 9/11 suspects. As Clown Shields showed on Friday, not much is to be expected on that score from our liberal Pod Pundits.

Marcy Wheeler, Emptywheel: The 9/11 Trials: The Torture Question 11/13/09; Defense Lawyer Comments on Ramzi bin al-Shibh and Rahim al-Nashiri 11/13/09.

Deborah Pearlstein, Holder Speaks Opinio Juris 11/13/09 discusses the shakiness of the military commission concept in these terrorism cases.

Brad Knickerbocker, Holder in the dock as critics focus on New York 9/11 terror trial Christian Science Monitor 11/14/09.

Gerald Posner, Left Off Holder's List The Daily Beast 11/13/09

Tags: obama administration, rule of law

This is why I named this blog for Andrew Jackson

Obama's decision to continue with military tribunal kangaroo courts for accused "enemy combatants" is a big mistake. And a huge disappointment. Glenn Greenwald has it right in Obama's kinder, gentler military commissions Salon 05/15/09 when he writes:

What makes military commission so pernicious is that they signal that anytime the government wants to imprison people but can't obtain convictions under our normal system of justice, we'll just create a brand new system that diminishes due process just enough to ensure that the government wins. It tells the world that we don't trust our own justice system, that we're willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking. Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush's military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama. [my emphasis]

The Sixth Amendment right to a speedy trial in our Constitution isn't just some procedural nicety. It's based on the reality that justice delayed is justice denied. The military commission system so far has allowed the government to keep people who haven't been convicted of any crime in prison, many of them being tortured, for up to seven years now. This means justice delayed again: justice to the accused, justice to the victims of the 9/11 attacks and their survivors, justice for the American people.

A couple of articles in the Munich Süddeutsche Zeitung are treating the military commissions decision along with the withholding of the latest round of torture photos using Cheneyist claims and the continuation of the ridiculous "don't ask, don't tell" policy even against some of the few fluent Arabic translators we have, as a "Wende von der Wende", a turning point against the turning point. And that's a fair characterization. Apart from it being wrong and a disgrace to the United States to admit that our regular judicial system cannot function in terrorism cases as effectively as that in Spain and other countries where the rule of law is currently taken more seriously than in the United States, it also means Obama has walked into a political trap that he could have and should have avoided.

It's become a bizarre thing to me that the Democratic leaders seem unable to face the reality of what today's Republican Party is and has been for two decades or more: an authoritarian part that participates in democratic elections under a Constitutional system, while rejecting in practice democracy, the rule of law and the most basic Constitutional restraints. That's no exaggeration. Dick Cheney's Unitary Executive doctrine that Bush adopted and used to justify evading the laws against torture and others as well holds that the President is simply not bound by the Constitution in anything he declares on his own without review to be related to "national security". And the Republicans have built a huge media infrastructure, the Might Wurlitzer of radio, FOX News and various conservative magazines and newspapers and Web site, that have maximum incentive to take the most irreconcilable, hardline partisan positions they can. In a real sense, the Republicans in Congress are not in a position on the military commissions issue to say to Obama, "Okay. You bought into our military commissions system. So we're going to accept that, applaud you in public over it, and ease up on criticisms that you're putting the country in danger." Even if they were so inclined, which most of them are probably not.

There's surely some deal-making with the national security establishment going on here. So maybe Obama is getting something from them in return, such as less static about withdrawing from Iraq. But Obama and many of his team seem to think that such moves will appease the Republicans and impress the Beltway Village. The Republicans and the Pod Pundits will praise them for their statesmanship in continuing the horrible military commissions idea, of course. But the Republicans and most Villagers will take it as a sign of blood in the water and intensify their attacks on Obama on all fronts as a result. David Brooks in his Friday New York Times Republican Party bulletin column declares that the greatest domestic threats to America are Obama's health care plan and the fact that old people get Social Security and Medicare. The military commissions decision will embolden them to escalate the political fight against those programs even more.

And if some defendants wind up being acquitted and released, the Reps and the Village will attack Obama for letting dangerous terrorists run free and putting the whole country in danger. He had a far better alternative. He could have declared that the military commissions system was unworkable and undesirable and put the prisoners into the regular military and civilian court systems. Then, when some defendants got acquitted and released and the Reps launched those accusations, he could say, "We followed the law. We put the accused through the court systems we have and are better suited to deal with terrorism cases than the military-commissions/kangaroo courts that Dick Cheney and George Bush set up. The biggest problem the prosecutors had was that so much of the evidence was tainted by torture and other mistreatment of prisoners. And that they records were so poorly kept that it was difficult in some instances to make as strong a case as we could have had the regular justice system been used to start with. So if you're upset about acquittals, go complain to Dick Cheney and George Bush that screwed this up so badly."

Now he's forfeited that option. He now owns the Cheney-Bush kangaroo courts in a way that he could have avoided. And the Republicans will not hold back on their accusations because he caved in to their position on this thing.

Just to be clear, the American court system has shown itself to be capable of dealing with difficult terrorism cases. As Glenn Greenwald says:

[D]uring the Bush era, civilian courts had a far better record of convicting accused terrorists than military commissions did, including convictions of Jose Padilla, Ali al-Marri, Richard Reid, John Walker Lindh, and Zacharais Moussoui, at least three of whom (Padilla, al-Marri and Lindh) were severely mistreated; if we could convict them in real courts, why can't we convict the other accused terrorists who are actually guilty?

What does Andrew Jackson have to do with all this? Because the democratic movement of which he is a symbol and which still bears his name in history (Jacksonian democracy) pushed democracy and freedom forward in a decisive way. His fight against the Bank of the United States and the concentrated, abusive power of private wealth with which it was identified became one of the most important "democratic moments" in American history. His stance against South Carolina's secessionism was at least as critical a "democratic moment", if not more so. And in the process Jackson defined the concept of American democratic nationalism that essentially remains today, though the concept of "nationalism" has become more ambiguous in 2009.

Yet his other most notable accomplishment, the Indian Removal Act, was a shame and huge human disaster. And wrong even by the standards of his own time.

Yet the democratic movements which flourished outside the South in the following decades, most notably the antislavery and women's-rights movements, and even the (largely unsuccessful) movements to defend Indian rights, used the grassroots methods and democratic concepts that emerged from Jackson's movement. Andrew Jackson isn't a symbol of popular democracy because he was a porcelain saint or because he never did anything seriously bad as President. He is a symbol of democracy because he became a decisive and effective leader of a movement that was bigger than he, a movement which expanded democracy in a manner that allowed the country to defeat the slaveowners' revolt of 1861 and continue on a democratic path.

Without trying to draw analogies between Jackson's and Obama's Presidencies, this historic blunder by Obama is a reminder that, whatever his personal limitations, right now he represents and leads a democratic movement that is larger than he is, a movement that is not identical with the Democratic Party and which will go in directions with which Obama himself will not have wanted and of which he may not always approve.

Politics, in other words, takes place in the world of flesh and blood. I don't say this in any way to minimize how bad a decision the continuation of military commissions is. I say it because it's important to keep a clear view of what the real existing political parties are like and what they stand for. American elections are largely a binomial choice. If you don't like what the Democrats are doing, you vote for the Republicans. If you don't like what the Republicans are doing, you vote for the Democrats. I'm interested in being realistic about the good and bad sides of the real existing democratic movement in America. That movement is only very lightly represented in the Republican Party, if at all.

But favoring primary candidates who support the rule of law more faithfully, e.g., Pennsylvania in 2010, is a perfectly valid option for Democrats unhappy with the Democrats' embrace of a truly bad Republican Party policy like military commissions.

I hope someone will challenge Harry Reid for the Democratic Senate leadership, too. Having a Democrat who is willing to be a partisan hard-hitter and able to slough off the wrath of the Pod Pundits for not making "bipartisanship" his dearest value would be much, much better than having Harry Reid there.

Tags: barack obama, military commissions, rule of law

A twisted Beltway Village notion of collective guilt

Michael Kinsley makes a "liberal" case for not prosecuting torture perpetrators in Where This Buck Stops Washington Post 05/01/09. His argument is - what's the closest to a polite word? - pernicious in several ways.

For one thing, it ignore the very serious legal issues at stake, including a very basic issue of the rule of law. His bottom line is that none of the people who actually broke the law in the torture program should be prosecuted for their crimes. In that, he's firmly in the near-unanimous consensus among the Beltway Villagers that under no circumstances should the torturers of the Cheney-Bush administration should be prosecuted. At this particular moment, I'm not sure that the rhetorical flourishes anyone uses to get to the let-the-torturers-go-scott-free position really matter.

Having said that, I am disturbed by the collective-guilt argument he makes. Despite the poor job he and his Village colleagues generally did on reporting the torture story during the Cheney-Bush years, and also ignoring the steadfast denials from the Cheney-Bush officials that the US government was torturing people, he assumes that American voters were essentially fully informed about the torture program from 2004 on. And because Bush was re-elected in 2004, all Americans are guilty of torture. It's an old rhetorical trick that shouldn't actually fool anyone over the age of 12: Everyone is guilty, so no one is guilty.

But he even gets very specific that he himself never really gave a s**t about the torture program. Writing about the 2004 Bush re-election, he says:

There is no way of knowing how many of those who voted against [John Kerry] were affected by the torture question. A good guess would be "not many." (Not me, for one, I'm sorry to say.) [my emphasis]

If you were from some other country and weren't familiar with the bizarre nature of our press corps, you might think that a celebrity pundit would be embarrassed to open display the fact that when it comes to public affairs, he has the moral compass of a pile of beached bones. But you would be wrong.

In any case, whatever ideological label one chooses to put on his collective guilt argument, the concept is as empty as Dick Cheney's conscience. People who commit crimes are guilty for those acts and should be held legally responsible. That's not a "liberal" or "conservative" concept. It's the basic idea of the rule of law.

Tags: accountability for torture, michael kinsley, rule of law, 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

Will the rule of law survive?

Dave Neiwert in Torture and the rule of law: Did Bush just call Democrats' bluff? 11/26/08 at Crooks and Liars, to which he's apparently migrated from FireDogLake, calls attention to something that I didn't catch when I first saw this story: Sweeping Pardons 'Unnecessary': White House Is Disinclined to Grant Clemency to Officials Involved in Terror Policies by Evan Perex Wall Street Journal 11/25/08.

My thought was, great, Bush's arrogance makes him think he's immune to consequences for his criminal acts. But I figured that Dark Lord Cheney would set him down between now an Obama's inauguration and explain to him, "Look, Little George, we could all go to jail unless you issue those pardons. You don't want to go to jail, now, do you, Little George?"

Dave suggests a darker motive that is also consistent with Cheney's modus operandi. He quotes Jonathan Turley:

And so what's really happening here is a rather clever move at this intersection of law and politics. That what the administration is doing, is they know that the people that want him to pardon our torture program is primarily the Democrats, not the Republicans. The Democratic leadership would love to have a pardon so they could go to their supporters and say, "Look, there's really nothing we could do. We're just going to have this truth commission, and we'll get the truth out, but there really can't be any indictments now."

Well, the Bush administration is calling their bluff. They know that the Democratic leadership will not allow criminal investigations or indictments. And in that way the Democrats will actually repair Bush's legacy, because he will be able to say, "There was nothing stopping indictments or prosecutions, but a Democratic congress and a Democratic White House didn't think there was any basis for it." [emphasis by Dave]

Dave thinks that if Turley is right, the Dems will set up some worthless and powerless "truth commission" - I'm guessing Lee Hamilton will be the lead candidate to head it, in that case - and go their merry way.

Dave doesn't speculate about it, but I will. We know how Cheney manipulated the Vice Presidential selection process in 2000 in order to collect compromising information on leading Republicans. And we know he's been conducting the most massive spying domestic intelligence-gathering operation in the history of the world; though with Cheney involved, we know that it's largely incompetent for its nominal purposes of combating terrorism. But a "known unknown" (to use Rummy's famous terminology) is the question of how much spying Cheney's operation has been doing on Democratic Party leaders. Although I'm so thoroughly confident that he has been doing that, that I would call it an "all-but-known known".

So have the Democratic leaders already made a deal with Cheney not to push a serious investigation? And if they did, what kind of dirt did he have on them? Because I'd like to at least believe that they were blackmailed into that attitude, rather than just shrugging it off and saying, "Shoot, laws are just for black people and illegal immigrants, and us important government types shouldn't have to worry about them."

Tags: rule of law, torture