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“Reconciliation” and “Looking Forward Not Backward:” Code for No Justice? February 19, 2009

Posted by rogerhollander in About Barack Obama, About Justice, Barack Obama, Criminal Justice, Dick Cheney, George W. Bush.
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nuremberg-trial

The President of the Tribunal, Lord Chief Justice Lawrence, pronounces the sentences and reads the dissenting Russian opinion

 by Roger Hollander

www.rogerhollander.wordpress.com, February 19, 2009

 

(SEE UPDATE BELOW)

 

An essay entitled “Obama’s Justice: Reconciliation Not Retribution” appeared recently in the progressive online journal, Truthout.com (http://www.truthout.org/021809J).  Its author is Cynthia Boaz, assistant professor of political science at Sonoma State University, who is described as a specialist “in political development, quality of democracy and nonviolent struggle.”

 

Professor Boaz’s approach was most annoying in that she felt the need to set up a straw man (the notion that those who want justice want it for purposes of retribution) and resort to the ad hominem by characterizing those who are pushing for investigations and prosecution of the Bush era crimes as “disgruntled, self-identified progressives” and comparing them to “villagers wielding torches and pitchforks.”

 

But such annoyances pale in light of the implication of her thesis in support of Obama as a “unifier,” and his mission of “reconciliation, not retribution” in an attempt to justify Obama’s oxymoronic and disingenuous statement that he believes in the rule of law but would rather look forward rather than backward.

 

(To her credit Professor Boaz acknowledges that the Bush administration may have committed misdeeds “which in some cases, rise to the level of crimes against humanity” and does not argue that they should not be brought to justice.  Her point is that justice should not be politicized, that the president should not seek “retribution” for his predecessor)

 

In the real world justice in fact usually occurs in a political context – especially when crimes occur at the higher levels of government.  Obama recognizes this and his remarks to George Stephanopoulos were in response to overwhelming public sentiment for him to appoint a special prosecutor as reflected in his transition sounding exercise.  Presidents do appoint Special Prosecutors and the United States Attorney General.  Presidents grant pardons, often controversial and often of a political nature (Ford/Nixon; Reagan/Weinberger, North, Irangate).  The political and the judicial are indeed intertwined.

 

Talking about “reconciliation” and “looking forward rather than backward” is in itself a blatant political intrusion in the world of justice.  If Obama were not signaling to the heads of the Justice Committees in both houses of Congress (and the American people) that he would prefer for them to back off, then he simply would have affirmed his commitment to the rule of law and left it at that.

 

The evidence that is already in the public domain with respect to the knowingly false pretense for the invasion of Iraq, the high level authorization of torture, the extraordinary renditions, the wiretapping, the U.S. Attorney firings, etc. is so overwhelming that – in spite of the sacred principle of “innocent until proven guilty” – the American and world public cannot be faulted for demanding that the Nuremberg principles be applied to the neo-fascist Bush clique.  That former Vice President Cheney, who is universally considered to have been the Bush administration Godfather, has been making the rounds boasting about his role in committing in effect what are crimes against humanity, constitutes an open challenge to anyone who takes the rule of law seriously.  Given the literally millions of human beings whose lives have been destroyed or seriously debilitated by the actions of the Bush administration and the gross violations of constitutional and international law, the imperative for speedy justice within the context of due process is overwhelming.

 

What I fear is some kind of Truth Commission based on the premise of giving immunity for the sake of getting the truth out.  This, I believe, is what Obama was getting at with his “looking forward” remark and what Professor Boaz would like to see.  Such a notion mocks the concept and dignity of Justice.  It gives no closure to those who have suffered at the hands of high level war criminals and it has little or no deterrent effect.  What it is is politically expedient. 

 

Do I expect to ever see Bush, Cheney, Rumsfeld, Gonzales, Wolfowitz et. al. in a United States court of law charged with high crimes?  Honestly I do not (but I didn’t ever expect to see the election of an Afro-American president in my lifetime either).  But genuine truth, reconciliation and justice demand that such high crimes be investigated and prosecuted; those who suffered deserve justice; and the future of what is left of constitutional democracy is worth fighting for.

What is more, if President Barak Obama or anyone else acts in any way to impede or frustrate the carrying out of justice, they become to some extent complicit with the principal perpetuators.

UPDATE (May 1, 2009)

There has been a lot of -pardon the pun – wate(boarding) under the bridge since I wrote this piece in mid February.  If you surf around my Blog or the many Blogs I post on it, you will find dozens if not hundreds of articles on the issue of torture and criminal responsibility for it.  Just today, for example, I posted an excellent article by Glenn Greenwald that appeared in salon.com which documented the words of, of all people, Ronald Reagan, who, in introducing the law that made torture a serious crime in the United States, states that torture is a crime, with no exception for extraordinary circumstances (including, presumably, the phony “ticking time bomb” scenario).  Ronald Reagan!

 

Professor Boaz, who is the target of my criticism in the original article above, had argued that those of us demanding that now President Obama take criminal action against the Torturers were misunderstanding the role of the presidency.  Investigation and criminal prosecution in the bailiwick of the Judicial System, not the presidency she tells us.  I wonder what she is thinking now that President Obama has heard, tried and exonerated the CIA agents who carried out the war crime known as torture.

 

During the longest eight years in history that we lived through under Bush/Cheney, one felt that what was happening as if it were in the realm of the surreal.  Anti-war election results, and the war escalates (excuse me, surges).  Torture with impunity.  Habeas Corpus out the window.  Warrantless wiretapping.  An ideologically politicized Justice Department.  Signing Statements allowing the President to ignore laws passed by Congress.  Dr. Strangeglove figures such as Rumsfeld, Wolfowitz, Rice, Gonzales; and Darth Vader himself disguised as Dick Cheney, bunker and all.

 

May the goddess help me, I am having the same surrealistic dizziness all over again.  The Attorney General declares that waterboarding is torture.  Torture is a crime.  Therefore … do nothing about it.  The President releases evidence in the form of the infamous torture memos that, that along with photographic and other (International Red Cross, for example) evidence, leaves no doubt about the nature and extent of the torture; and then he proceeds to grant amnesty to those who committed the crimes.  They were only following orders, he says, as the Nuremburg amnesia sets in alongside the swine flu.  Pelosi and Reid want investigations … in secret (!).  The mainstream media, as it did under Bush/Cheney, plays along with the Alice in Wonderland fantasies, and the maniacs on the neo-Fascist Right have convinced a signficant percentage of Americans that torture is not a crime under “certain circumstances.”  The torture memos written by John Yoo and Jay Bybee are so patently phony and Kafkesque that Yoo is invited to teach law in Orange County and Bybee is made a Federal Judge.

 

It has been suggested that President Obama doesn’t feel there is the political will to prosecute the war criminals, which is why he has been so wishy-washy, but that he has released the tortue memos and is soon to release more photos as a way to achieve that will.  I don’t believe this, but that doesn’t matter.  Only by latching on to the the issue like a pit bull and refusing to let go can we who believe in Decency and Justice bring the American War Criminals to justice.

torture-with-bush

abu-ghraib-matthew-langley

 

 

 

 

Obama Signals His Reluctance to Look Into Bush Policies January 12, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Dick Cheney, George W. Bush, Human Rights, Iraq and Afghanistan, Torture, War.
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DAVID JOHNSTON and CHARLIE SAVAGE

Published: January 11, 2009, New York Times

WASHINGTON — President-elect Barack Obama signaled in an interview broadcast Sunday that he was unlikely to authorize a broad inquiry into Bush administration programs like domestic eavesdropping or the treatment of terrorism suspects.

But Mr. Obama also said prosecutions would proceed if the Justice Department found evidence that laws had been broken.

As a candidate, Mr. Obama broadly condemned some counterterrorism tactics of the Bush administration and its claim that the measures were justified under executive powers. But his administration will face competing demands: pressure from liberals who want wide-ranging criminal investigations, and the need to establish trust among the country’s intelligence agencies. At the Central Intelligence Agency, in particular, many officers flatly oppose any further review and may protest the prospect of a broad inquiry into their past conduct.

In the clearest indication so far of his thinking on the issue, Mr. Obama said on the ABC News program “This Week With George Stephanopoulos” that there should be prosecutions if “somebody has blatantly broken the law” but that his legal team was still evaluating interrogation and detention issues and would examine “past practices.”

Mr. Obama added that he also had “a belief that we need to look forward as opposed to looking backwards.”

“And part of my job,” he continued, “is to make sure that, for example, at the C.I.A., 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 spend their all their time looking over their shoulders.”

The Bush administration has authorized interrogation tactics like waterboarding that critics say skirted federal laws and international treaties, and domestic wiretapping without warrants. But the details of those programs have never been made public, and administration officials have said their actions were legal under a president’s wartime powers.

There was no immediate reaction from Capitol Hill, where there has been a growing sense that Mr. Obama was not inclined to pursue these matters. In resisting pressure for a wider inquiry, he risks the ire of influential Democratic lawmakers on Congressional judiciary and intelligence committees and core constituencies who hoped his election would cast a spotlight on President Bush’s antiterror efforts.

The issue will also be an important early test of his relationship with conservatives in Congress and the country’s intelligence agencies; both groups oppose any further review.

On other terrorism issues, Mr. Obama suggested in the interview that his approach might be more measured. He said the closing of the detention center at Guantánamo Bay, Cuba, which once seemed to be an early top objective, was not likely to happen during the first 100 days of his administration.

“It is more difficult than I think a lot of people realize,” Mr. Obama said, “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.”

Mr. Obama has in the past condemned waterboarding, and he was explicit in the interview that he regarded the use of the technique, in which a subject is made to believe that he is drowning, as torture, prohibited by statute. And the president-elect said he disagreed with Vice President Dick Cheney, who has defended the practice.

“Vice President Cheney, I think, continues to defend what he calls extraordinary measures or procedures when it comes to interrogations,” Mr. Obama said, “and from my view, waterboarding is torture.”

Mr. Obama’s choice for attorney general, Eric H. Holder Jr., is widely expected to be asked about his views on these issues at his confirmation hearing this week. Associates say Mr. Holder is open to prosecutions based on specific accusations but is less eager to use the criminal law to commence wide-ranging inquiries. Before being chosen for the Obama cabinet, he said there should be “a reckoning” over Bush administration policies.

Lawyers who represented Bush administration officials over the years expressed little surprise that Mr. Obama’s legal and national security team had lost whatever appetite it might have had for delving into alleged misdeeds of the Bush years.

“A new president doesn’t want to look vengeful,” said a former Bush White House lawyer, Bradford A. Berenson, who was a Harvard law classmate of Mr. Obama and has represented administration figures as a private lawyer, “and the last thing a new administration wants to do is spend its time and energy rehashing the perceived sins of the old one.

“No matter how much the Obama administration’s most extreme supporters may be screaming for blood, the president himself doesn’t seem to share that bloodlust.”

Moreover, any effort to conduct a wider re-examination would almost certainly provoke a backlash at the country’s intelligence agencies.

Mark Lowenthal, who was the assistant director for analysis and production at the C.I.A. from 2002 to 2005, said if agents were criminally investigated for doing something that top Bush administration officials asked them to do and that they were assured was legal, intelligence officers would be less willing to take risks to protect the country.

“There are just huge costs to the day-to-day operation of intelligence,” Mr. Lowenthal, now the president of the Intelligence and Security Academy, said of a potential investigation. He added that he saw no benefit to such an effort because, he said, the public was not clamoring for it.

But it may be difficult for Mr. Obama to resist the pressure for a fuller public accounting, and lawmakers appear ready to proceed even without his support.

The House Judiciary Committee chairman, Representative John Conyers Jr., Democrat of Michigan, has already introduced a measure to create a commission to investigate Mr. Bush’s detention, interrogation and rendition policies. Mr. Conyers’s bill would establish a bipartisan nine-member commission with subpoena power and a mandate “to investigate the broad range of policies” undertaken with claims that Mr. Bush’s wartime powers as commander in chief trumped laws and treaties.

The measure by Mr. Conyers is not the only sign that Congress may force the issue. Senator Ron Wyden of Oregon, the second-ranking Democrat on the intelligence committee, said such a commission might not be necessary because the panel itself would press the administration to declassify as much information about C.I.A. prisons as possible.

“With regard to the C.I.A. interrogation program,” Mr. Wyden said in an interview, “if you want to make a break with the flawed policies of the past, as the president-elect has said he wishes to do, you have got to come clean about what happened over the past eight years, and that is why I’m going to push very hard to declassify these documents.”

Mr. Obama’s legal team could also be forced to react to litigation pending before federal courts. For example, the Bush administration has invoked the state-secrets privilege to avoid disclosing information about its surveillance program being sought in a civil lawsuit. The Obama legal team will have to decide how to handle that case.

In a related area, Mr. Conyers has indicated that he intends to keep pressing a House Judiciary Committee investigation into the Bush administration’s firings of nine United States attorneys and other accusations of political favoritism in hiring at the Justice Department.

The Bush administration has blocked subpoenas from Congress for documents and testimony by White House officials in that case, citing executive privilege. Last week, Mr. Conyers reissued the subpoenas to Mr. Bush’s chief of staff, Joshua B. Bolten, and his former White House counsel, Harriet E. Miers, in the name of the new Congress, ensuring that a lawsuit over the dispute will stay alive into the Obama presidency.

Mr. Obama is facing even more intense pressure from liberal, human-rights and civil-liberties groups to allow some kind of investigation into the Bush administration’s terrorism policies.

Chris Anders, senior legislative counsel at the American Civil Liberties Union, said it would be a simple matter to start such an inquiry because the Justice Department’s special prosecutor, John H. Durham, is already investigating whether the C.I.A. acted illegally when it destroyed videotapes of its harsh interrogations. Mr. Anders said Mr. Durham’s mandate could be expanded to look into whether the interrogations depicted on the tapes were illegal.

Some groups are focused on prosecution. Michael Ratner, president of the Center for Constitutional Rights, said prosecution efforts were justified, even if they did not lead to convictions, as a way to deter future officials from undertaking a similar “assault on the law itself.”

Other groups want fuller public disclosure. They favor a commission that would answer lingering questions about exactly what happened — like disclosing how many Americans were wiretapped without warrants and making a detailed accounting of what interrogators did to each detainee and the real value of the information they obtained through the enhanced tactics.

“One of the things that is going to have to happen is an examination and, to the extent possible, a public airing of the validity of the claims that these policies enhanced our security,” said Elisa Massimino, the executive director of Human Rights First. “Because there is a lot of reason to think that calculus hasn’t been accurate.”

Obama Leaves Door Open To Investigating Bush, But Wants To “Look Forward” January 11, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Human Rights, Torture.
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(Roger’s note: I have little hope that Bush and Cheney and the rest of the criminal gang will be brought to justice in my or their lifetime, much less under the presidency of Barack Obama.  I hope I am wrong.  The anticipated reaction of the CIA, FBI, military, radical right — you name it — would be overwhelming, and the mainstream media, as usual, would fall over dead.  What I would appreciate from Obama, however, would be a recognition of this dynamic as opposed to the mealy mouthed “inclination to look forward rather than look backward.”  It is both an insult to one’s intelligence and to the notion of rule of law and justice). 

Sam Stein, www.huffingtonpost.com

January 11, 2009

Responding to the most popular inquiry on the “Open for Questions” feature of his website, Barack Obama said on Sunday that he is “evaluating” whether or not to investigate potential crimes of the Bush administration, but that he was inclined to “look forward as opposed to looking backwards.”

The answer was delivered during an interview to This Week With George Stephanopoulos. But the question itself has been weeks in the work.

The Obama transition team, as part of its efforts to open up the political process, had allowed web users to vote on questions for the incoming administration to field. To the top rose a query from Bob Fertik, president of Democrats.com and a former Clinton White House technology official, asking whether the incoming administration would appoint a special prosecutor to “independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping.”

On Obama’s website, a December statement from Vice President-elect Joe Biden on the topic was offered as a response (similar older statements were used to address several other national security-related questions, which the transition team has avoided discussing). But Stephanopoulos made the matter moot by posing the question directly to the president-elect.

“We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth,” said Obama. “And obviously we’re going to look 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 up.”

Pressed a bit — was he ruling out prosecution? — the president-elect suggested that decision would be that of his attorney general.

“I think my general view when it comes to my attorney general is that he’s the people’s lawyer. Eric Holder’s been nominated,” said Obama. “His job is to uphold the Constitution and look after the interests of the American people, not 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 to looking at what we got wrong in the past.”

I asked Fertik to share his thoughts on the president-elect’s answer. This is what he had to say:

It’s absurd to talk about “upholding the Constitution” and say “no one is above the law” if you refuse to look “back” at those who have subverted the Constitution and broken the law. And you can’t have one set of rules for “national security” and a different set of rules for everything else.
So if there’s any hope for prosecution in Obama’s answer, it is that Attorney General Eric Holder will truly be “the people’s lawyer” and fully represent us by prosecuting torturers, wiretappers, and other criminals who committed their crimes from secret undisclosed locations hidden within the Bush-Cheney administration.

 

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