My Number One Pick for the Top Censored Story of 2009–Check Out Top 25 December 21, 2009Posted by rogerhollander in Media, Political Commentary.
Tags: carbon trade, censorship, congres, corporate media, defense contracts, Ecuador, foreign debt, gaza, grant lawrence, haiti, journalism, Karl Rove, katrina, lobbyyists, mass media, Media, mike connel, News, north carolina, nuclear waste, oil exploitation, pirates, roger hollander, somali, sudan, toxic waste, Wall Street
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www.opednews.com, December 21, 2009
Diary Entry by Grant Lawrence (about the author)
Many, if not all, of these stories have been reported on by great alternative and progressive sites, like OpEd News. Click on the ones that you may be unfamiliar with and send them to others.
All of these stories need to come into greater public awareness.
But the events leading up to the mysterious death of Mike Connell exposes vote fraud and points to corruption at the highest level.
So My pick for the Number One Censored Story of 2009
The Mysterious Death of Mike Connell–Karl Rove’s Election Thief
Karl Rove’s chief IT consultant, Mike Connell–who was facing subpoena in connection with 2004 Presidential election fraud in Ohio–mysteriously died in a private plane crash in 2008. Connell was allegedly the central figure in a longstanding plot to electronically flip votes to Republicans…..
Top Censored Stories of 2009/2010
* 1. US Congress Sells Out to Wall Street
* 2. US Schools are More Segregated Today than in the 1950s
* 3. Toxic Waste Behind Somali Pirates
* 4. Nuclear Waste Pools in North Carolina
* 5. Europe Blocks US Toxic Products
* 6. Lobbyists Buy Congress
* 7. Obama’s Military Appointments Have Corrupt Past
* 8. Bailed out Banks and America’s Wealthiest Cheat IRS Out of Billions
* 9. US Arms Used for War Crimes in Gaza
* 10. Ecuador Declares Foreign Debt Illegitimate
* 11. Private Corporations Profit from the Occupation of Palestine
* 12. Mysterious Death of Mike Connell–Karl Rove’s Election Thief
* 13. Katrina’s Hidden Race War
* 14. Congress Invested in Defense Contracts
* 15. World Bank’s Carbon Trade Fiasco
* 16. US Repression of Haiti Continues
* 17. The ICC Facilitates US Covert War in Sudan
* 18. Ecuador’s Constitutional Rights of Nature
* 19. Bank Bailout Recipients Spent to Defeat Labor
* 20. Secret Control of the Presidential Debates
* 21. Recession Causes States to Cut Welfare
* 22. Obama’s Trilateral Commission Team
* 23. Activists Slam World Water Forum as a Corporate-Driven Fraud
* 24. Dollar Glut Finances US Military Expansion
* 25. Fast Track Oil Exploitation in Western Amazon
Source: Project Censored
I work as a school counselor and mental health counselor in Gallup New Mexico.
Administration Opposes Plame Appeal May 21, 2009Posted by rogerhollander in Barack Obama, Criminal Justice.
Tags: ben conery, bush crimes, cia operative, Criminal Justice, Dick Cheney, doj, joseph wilson, justice department, Karl Rove, lewis libby, obama administration, plamegate, richard armitage, roger hollander, saddam hussein, scooter libby, valerie plame
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The Obama administration Wednesday took the side of top Bush administration officials – including most-vocal recent critic, former Vice President Dick Cheney – in the ongoing fight over the outing of CIA operative Valerie Plame.
The Justice Department asked the Supreme Court not to hear an appeal of a lawsuit brought by Mrs. Plame and her husband, former U.S. Ambassador Joseph C. Wilson IV, against several top Bush administration officials. The department’s move continued the Bush administration’s policy to fight the suit, which has already been dismissed by two lower courts.
“The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals,” said the brief filed by Solicitor General Elena Kagan, Assistant Attorney General Tony West, and Justice Department attorneys Mark B. Stern and Charles W. Scarborough. “Further review is unwarranted.”
The Justice Department filing agreed with the lower courts that none of the Wilsons’ several legal arguments gave an appropriate basis for such a lawsuit.
The Supreme Court has not acted on the Wilsons’ request that it hear the case.
The Wilsons filed suit in 2006 against top Bush administration officials who they say violated their constitutional rights by publicly disclosing that Mrs. Wilson was an undercover CIA operative. The lawsuit names Mr. Cheney, former White House senior adviser Karl Rove, former Chief of Staff to the Vice President I. Lewis “Scooter” Libby Jr. and former Deputy Secretary of State Richard L. Armitage.
“We are deeply disappointed that the Obama administration has failed to recognize the grievous harm top Bush White House officials inflicted on Joe and Valerie Wilson,” said Melanie Sloan, one of the couple’s attorneys and the executive director of the watchdog group Citizens for Responsibility and Ethics in Washington. “The government’s position cannot be reconciled with President Obama’s oft-stated commitment to once again make government officials accountable for their actions.”
The White House referred questions about the case to the Justice Department, which declined to comment.
The case follows a classic Washington scandal that has come to be known as “Plamegate.”
Fallout from the controversy led to the conviction of Libby on charges of lying to a grand jury investigating the leak of Mrs. Plame’s identity, though he was not charged with the actual leak. President George W. Bush commuted Libby’s 2 1/2-year prison sentence, without his having spent a day behind bars, after the sensational trial that peeked into the sometimes cozy and questionable relationship of Washington journalists and their politician sources.
The scandal had its roots in the 2003 State of the Union address, in which Mr. Bush said Saddam Hussein has recently tried to buy uranium in Africa. Mr. Wilson became a vocal and public critic of this claim, which the Wilsons say led the Bush administration to leak that information to columnist Robert Novak as an act of revenge. Mr. Armitage was later revealed to be the leaker.
Stephen Dinan contributed to this report.
Tags: Abu Ghraib, aclu, anti-terrorism, bagram, binyam mohamed, bush administration, cia interrogation, cia prisons, civil liberties, constitution, detainee abuse, geneva conventions, George Bush, glenn greenwald, Guantanamo, intelligence-sharing, John McCain, Karl Rove, military commissions, national security, nuremberg, obama civil liberties, obama promises, roger hollander, rule of law, stanley mcchyrstal, state secrets, torture, torture memos, torture tapes, torture videos, War Crimes
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Among progressives, Democrats, liberals, Obama supporters and the like, there seems to be some debate about the extent to which Obama deserves criticisms for what he has done thus far in the realm of civil liberties, restoration of Constitutional principles, and reversing the severe imbalance between “security” and liberties — major planks of his two-year-long campaign and among the most frequent weapons used to criticize the Bush presidency. On that topic, here is the first paragraph of this New York Times article this morning by David Sanger, summing everything up:
President Obama’s decisions this week to retain important elements of the Bush-era system for trying terrorism suspects and to block the release of pictures showing abuse of American-held prisoners abroad are the most graphic examples yet of how he has backtracked, in substantial if often nuanced ways, from the approach to national security that he preached as a candidate, and even from his first days in the Oval Office.
Here’s how the NYT describes the article on its front page:
The opening paragraph of this Washington Post article today says much the same thing:
As a candidate for president, Barack Obama offered himself as a clear alternative to Bush-era anti-terrorism policies. Governing has proven muddier.
Both articles quote the hardest-core Bush supporters as heaping praise on Obama for what he has done in the area of “national security,” terrorism and civil liberties (“Pete Wehner, a member of Karl Rove’s staff in the Bush White House [and a current National Review writer] applauded several of Mr. Obama’s decisions this week”). Indeed, all week long, and even before that, the greatest enthusiasm for Obama’s decisions on so-called “terrorism policies” and civil liberties (with some important exceptions) has been found in the pages of The Weekly Standard and National Review.
Can anyone deny what the NYT and Post are pointing out today? This is what happened this week alone in the realm of Obama’s approach to “national security” and civil liberties:
Monday – Obama administration’s letter to Britian threatening to cut off intelligence-sharing if British courts reveal the details of how we tortured British resident Binyam Mohamed;
Wednesday – Announced he was reversing himself and would try to conceal photographic evidence showing widespread detainee abuse — despite the rulings from two separate courts (four federal judges unanimously) that the law compels their disclosure;
Friday – Unveiled his plan to preserve a modified system of military commissions for trying Guantanamo detainees, rather than using our extant-judicial processes for doing so.
It’s not the fault of civil libertarians that Obama did all of those things, just in this week alone. These are the very policies — along with things like the claimed power to abduct and imprison people indefinitely with no charges of any kind and the use of the “state secrets privilege” to deny torture and spying victims a day in court — that caused such extreme anger and criticisms toward the Bush presidency.
What would it say about a person who spent the last seven years vehemently criticizing those policies to suddenly decide that the same policies were perfectly fine or not particularly bothersome when Obama adopts them? How could that be justified? What should one say about a person who vehemently objected to X when Bush did it, but then suddenly found ways to defend or mitigate X when Obama does it? Just re-read that first paragraph from the NYT article today. What should a rational person say in response to what it describes?
It is absolutely true that there have been some important steps Obama has taken in the right direction that George Bush and John McCain would never have entertained, including banning interrogation techniques outside of the Army Field Manual, barring CIA secret prisons, guaranteeing International Red Cross access to all detainees, and releasing numerous Bush era OLC memos. He deserves praise for those decisions and has received it here. But other than the OLC memos, those steps all came in the very first week of his presidency in largely symbolic form. At the time, in the first week, I wrote that Obama’s first-week executive orders “meet or actually exceed even the most optimistic expectations of civil libertarians for what he could or would do quickly,” but:
This is why the understandable enthusiasm (which I definitely share) over Obama’s pleasantly unexpected commitment in the first few hours of his presidency to take politically difficult steps in the civil liberties and accountability realms should be tempered somewhat. There is going to be very concerted pressure exerted on him by establishment guardians such as Hiatt (and the Brookings Institution, Jack Goldsmith and friends), to say nothing of hard-line factions within the intelligence community and its various allies, for Obama to take subsequent steps that would eviscerate much of this progress, that render these initial rollbacks largely empty, symbolic gestures. Whether these steps, impressive as they are, will be symbolic measures designed to placate certain factions, or whether they represent a genuine commitment on Obama’s part, remains to be seen. Much of it will depend on how much political pressure is exerted and from what sides.
Obama deserves real praise for devoting the first few days of his presidency to these vital steps — and doing so without there being much of a political benefit and with some real political risk. That’s genuinely encouraging. But ongoing vigilance is necessary, to counter-balance the Fred Hiatts, Brookings Institutions and other national security state fanatics, to ensure that these initial steps aren’t undermined.
Since that first week, Obama has engaged in one action after the next to preserve many of the key prongs, and the essential architecture, of the Bush/Cheney abuses of executive power and civil liberties. That’s just factually true. What’s the point of closing Guantanamo if we’re going to continue to keep people indefinitely in cages with no trial in Bagram, or if we simply transport a modified version of Guantanamo justice to the U.S.? How can a President who repeatedly promised vast transparency embrace the most extremist Bush/Cheney secrecy powers? How can a person who campaigned on the vow to end “Scooter Libby justice” and restore the rule of law take one extreme step after the next to shield from judicial scrutiny some of the most serious, brutal and highest-level crimes of the last eight years?
It’s certainly true that there are other issues besides civil liberties and national security policies that are important. The fact that he’s been horrible in these areas doesn’t mean he hasn’t been good in others. One can argue, if one likes, that these civil liberties issues don’t really matter (a representative of Center for American Progress joined with two conservatives to claim exactly that yesterday on CNN), or one can argue that all that matters is that we fix the banking crisis and implement a new health care policy. But I never heard any Bush critics — not one — say anything like that when these issues were front and center in the case against the Bush presidency.
Nobody who spent the last many years devoting themselves to opposing Bush/Cheney abuses of executive power and civil liberties wanted to have to do the same in an Obama presidency. If you doubt that, just look at how intense was the celebratory praise directed at Obama from those factions in the first week. But unless the opposition of the last eight years was really just a cynical means for opportunistically weakening and demonizing Republican opponents rather than opposing policies that one genuinely found dangerous and wrong, then the actions of Obama are leaving no other choice but to object and object strenuously. As the first paragraph of today’s NYT article put it, this week alone provided “the most graphic examples yet of how [Obama] has backtracked, in substantial if often nuanced ways, from the approach to national security that he preached as a candidate, and even from his first days in the Oval Office.” If nothing else, refraining from objecting will ensure that this continues further and further.
* * * * *
Yesterday morning, I was on WNYC’s The Takeway discussing (briefly) the issue of Obama’s military commissions and, more extensively, drug policy and decriminalization in Portugal. That can be heard here.
President Obama’s endorsements of Bush-Cheney antiterror policies are by now routine . . . . Mr. Obama deserves credit for accepting that the civilian courts are largely unsuited for the realities of the war on terror. He has now decided to preserve a tribunal process that will be identical in every material way to the one favored by Dick Cheney . . . Meanwhile, friends should keep certain newspaper editors away from sharp objects. Their champion has repudiated them once again.
Meanwhile, Law Professor Julian Ku notes that Obama Deputy Solicitor General Neal Katyal spent years arguing that military commissions generally (not merely Bush’s specific version) were oppressive and un-American (h/t). But now, thanks to Obama’s embrace of them, Katyal is going to have to defend Obama’s military commissions in court from challenge by the ACLU and other groups. At least Katyal has the excuse that defending exactly that which he spent years excoriating is his job. Obama supporters who are doing the same don’t have that excuse.
UPDATE II: Illustrating the irrationality that is used, Obama defenders are making the following two arguments to justify what he did on military commissions:
(1) Obama had no choice because he can’t obtain convictions of accused terrorists in civilian courts because so much of the evidence was obtained by Bush’s torture and thus can’t be used;
(2) Obama’s military commissions are better than Bush’s because Obama’s commissions won’t allow evidence obtained by torture.
Aren’t those two propositions completely contradictory? If Obama’s military commissions (like civilian courts and courts-martial) won’t allow evidence obtained via torture, then why can’t he use our normal court system to try accused terrorists?
Tags: Abu Ghraib, aclu, david broder, david swanson, Dick Cheney, doj, elizabeth de la vega, eric holder, geneva conventions, George Bush, george tenet, Guantanamo, harry reid, human rights, International law, jameel jaffer, jeremy scahill, John Conyers, john yoo, justice department, Karl Rove, lawrence wilderson, michael ratner, Nancy Pelosi, nerrold nadler, nuremburg, patrick fitzgerald, patrick leahy, president obama, Rahm Emanuel, roger hollander, rule of law, scott horton, senate intelligence, special counsel, special prosecutor, torture, torture memos
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Published on Wednesday, April 29, 2009 by CommonDreams.org
Representatives John Conyers and Jerrold Nadler are officially asking Attorney General Eric Holder to appoint an independent Special Prosecutor “to investigate and, where appropriate, prosecute” participants in the Bush-era US torture system. “A Special Counsel is the most appropriate way to handle this matter,” Nadler said. “It would remove from the process any question that the investigation was subject to political pressure, and it would preempt any perceptions of conflict of interest within the Justice Department, which produced the torture memos.” But, as Politico reports, “Holder is likely to reject that request – his boss, the president, has indicated he doesn’t see the need for such a prosecutor.” The Democratic Leadership, particularly Obama, Senate Majority Leader Harry Reid and Sen. Diane Feinstein have pushed for secret, closed-door hearings in the Senate Intelligence Committee. Other Democrats, like Patrick Leahy, advocate establishing a Truth Commission, though that is not gaining any momentum. The fact remains that some powerful Democrats knew that the torture was happening and didn’t make a public peep in opposition.
This week, Lawrence Wilkerson, the former chief of staff to Secretary of State Colin Powell came out in favor of prosecutions of “the decision-makers and their closest advisors (particularly the ones among the latter who may, on their own, have twisted the dagger a little deeper in Caesar’s prostrate body – Rumsfeld and Feith for instance). Appoint a special prosecutor such as Fitzgerald, armed to the teeth, and give him or her carte blanche. Play the treatment of any intermediaries – that is, between the grunts on the ground and the Oval – as the law allows and the results demand.”
Wilkerson, though, understands Washington. “Is there the political will to carry either of these recommendations to meaningful consequences?” he wrote to the Huffington Post. “No, and there won’t be.”
As of now, Conyers and Nadler aren’t exactly looking for over-flow space for their meetings on how to get criminal prosecutions going.
Officially joining the anti-accountability camp this week was The Washington Post‘s David Broder who wrote this gem in defense of the Bush administration: “The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places – the White House, the intelligence agencies and the Justice Department – by the proper officials.” (For a great response to this, check out Scott Horton). Broder is urging Obama to “stick to his guns” in standing up to pressure “to change his mind about closing the books on the ‘torture’ policies of the past.” Don’t you love how Broder puts torture in quotes? I really wonder how Broder would describe it if he was waterboarded (and survived). Can’t you just imagine him making the little quote motion with his hands? Broder’s Washington Post column was titled “Stop Scapegoating: Obama Should Stand Against Prosecutions:”
[Obama was] right to declare that there should be no prosecution of those who carried out what had been the policy of the United States government. And he was right when he sent out his chief of staff, Rahm Emanuel, to declare that the same amnesty should apply to the lawyers and bureaucrats who devised and justified the Bush administration practices.But now Obama is being lobbied by politicians and voters who want something more – the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps – or, at least, careers and reputations.
Their argument is that without identifying and punishing the perpetrators, there can be no accountability – and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.
Obama has opposed even the blandest form of investigation, a so-called truth commission, and has shown himself willing to confront this kind of populist anger.
Thank goodness we have a president who opposes “even the blandest form of investigation”-how uncouth such savagery would prove to be. While the elite Washington press corp works hard to make sure things don’t get too uncomfortable at the wine and cheese cocktail parties, some liberal journalists are also making the case against a special prosecutor (or at least the immediate appointment of one). Last week it was Elizabeth de la Vega, who made an interesting case for waiting to prosecute while evidence is gathered:
We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I’m not concerned about political fallout. What’s good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed.
This week it is Mother Jones Washington editor David Corn, who comes out in favor of a congressional investigation “that placed a premium on public disclosure” or “an independent commission.” Corn describes how he recently warned a Congressmember who supports the appointment of a Special Prosecutor, “That’s not necessarily a good idea.” Corn talks about how a coalition of groups from the Center for Constitutional Rights and the ACLU to Democrats.com and MoveOn.org have all petitioned for a prosecutor:
These liberals all want to see alleged Bush administration wrongdoing exposed. But there’s one problem with a special prosecutor: it’s not his job to expose wrongdoing. A special prosecutor does dig up facts-but only in order to prosecute a possible crime. His mission is not to shine light on misdeeds, unless it is part of a prosecution. In many cases, a prosecutor’s investigation does not produce any prosecutions. Sometimes, it leads only to a limited prosecution.That’s what happened with Patrick Fitzgerald. He could not share with the public all that he had discovered about the involvement of Bush, Cheney, Karl Rove, and other officials in the CIA leak case… A special prosecutor, it turns out, is a rather imperfect vehicle for revealing the full truth.
Prosecuting government officials for providing legal opinions that greenlighted waterboarding and the like would pose its own legal challenges. Could a government prosecutor indict the government lawyers who composed and signed the torture memos for aiding and abetting torture without indicting the government employees who actually committed the torture? (President Barack Obama has pledged that the interrogators will not be pursued.) And could a prosecutor win cases in which his targets would obviously argue that they were providing what they believed was good-faith legal advice, even if it turned out that their advice was wrong?… Several lawyers I’ve consulted have said that a criminal case against the authors of these memos would be no slam dunk. One possible scenario is that a special prosecutor would investigate, find out that sordid maneuvering occurred at the highest levels of the Bush-Cheney administration, and then conclude that he or she did not have a strong enough legal case to warrant criminal indictments and trials.
The bottom line: Anyone who wants the full truth to come out about the Bush-Cheney administration’s use of these interrogation practices cannot count on a special prosecutor.
Corn’s advice to that unnamed Democratic Congressmember wasn’t exactly well received by lawyers who have been pushing for prosecutions. Perhaps the most passionate advocate for the appointment of an independent Special Prosecutor right now is Michael Ratner, the president of the Center for Constitutional Rights.
“To argue that we should not have prosecutions because it won’t bring out all the facts when taken to its logical conclusion would mean never prosecuting any official no matter the seriousness of the crimes,” Ratner told me. “Right now is not the time to be backing off on prosecutions. Why are prosecutions of torturers ok for other non-western countries but not for the US? Prosecution is necessary to deter torture in the future and send a message to ourselves and the rest of the world that the seven or eight year torture program was unlawful and must not happen again. The purpose of prosecutions is to investigate and get convictions so that officials in the future will not again dispense with the prohibition on torture.”
Constitutional Law expert Scott Horton says that the problems with a Special Prosecutor Corn lays out are “correct, but he makes the latent assumption that it’s either/or. That’s absurd. Obviously it should be both a commission and one or more prosecutors as crimes are identified.”
Jameel Jaffer, one of the leading ACLU attorneys responsible for getting the torture memos released by the Obama administration, agrees with Horton. “I don’t think we should have to choose between a criminal investigation and a congressional inquiry,” Jaffer told me. “A congressional committee could examine the roots of the torture program and recommend legislative reform to prevent gross human rights abuses by future administrations. At the same time, a Justice Department investigation could investigate issues of criminal responsibility. One shouldn’t foreclose the other.”
Jaffer adds, “It might be a different story if we thought that Congress would need to offer immunity in exchange for testimony. But many of the key players – including John Yoo, George Tenet, and Dick Cheney – have made clear that they have no qualms about talking publicly about their actions (Yoo and Tenet have both written books, and Cheney is writing one now).”
The bottom line, Ratner argues, is that “prosecutions will bring out facts.” He cites the example of the Nuremberg Tribunals:
What if we had had a truth commission and no prosecutions? Right now we have many means of getting the facts: FOIA, congressional investigations such as the Senate Armed Services Report, former interrogators, document releases by the Executive. There are plenty of ways to get information even if it does not all come out in prosecutions. Many of the calls to not prosecute are by those, particularly inside the beltway, who cannot imagine Bush, Cheney et al. in the dock or by those who accept the argument that the torture conspirators were trying their best. This is not a time to hold back on the demand that is required by law and fact: appoint a special prosecutor.
David Swanson, who for years has pushed for prosecutions of Bush administration officials, was one of the organizers of the petitions calling for the appointment of a Special Prosecutor. “My top priority is not ‘truth,'” he said. “My top priority is changing the current truth, which is that we don’t have the nerve and decency to enforce our laws against powerful people.”
Media Behavior and the Torture ‘Debate’ April 24, 2009Posted by rogerhollander in Barack Obama, Criminal Justice, Media, Torture.
Tags: 9/11, abc news, Abu Ghraib, adam serwer, anthony taguba, bagram, Barack Obama, barry mccafrey, barton gellman, beltway, charles kaiser, chris matthews, cliff may, dana priest, david gregory, david ignatius, democratic party, doj, eric holder, firedoglake, geneva conventions, glenn greenwald, greg sargent, Guantanamo, International law, jane mayer, journalism, justice department, Karl Rove, mainstream media, marcy wheeler, Media, media superstars, new york times, office of legal counsel, olc, peggy nonan, political journalism, republicans, robert baer, roger cohen, roger hollander, rule of law, sheperd smith, special prosecutor, ta-nehisi coates, torture, torture memos, torture prosecutions, torture techniques, wall street journal, War Crimes, washington post, waterboarding, wsj
We could use more like I.F. (Izzy) Stone now; thank the goddess for Glenn Greenwald et. al.
Published on Friday, April 24, 2009 by Salon.com
Three Key Rules of Media Behavior Shape Their Discussions
of “the ‘Torture’ Debate”
It is now clear that the Obama White House didn’t think before it tried to appease the hard left of the Democratic Party.
When Rove speaks, the political class pays attention — usually with good reason.
There does seem to be a little bit of a reaction to how this was received on the left. . . frankly this feels like a political food fight now. . .. The hard left, the hard right, fighting over this in the blogosphere.
This whole torture debate is likely to tell us a lot about the kind of president Barack Obama intends to be. Will he buckle to the left, the netroots, and pursue an investigation into torture having said he didn’t want to? Or will he go post-partisan and leave the past to the historians?
What [Obama officials] got on their hands is a highly politicized and very partisan issue about the treatment of 9/11 prisoners. . . . At a time when the administration and the President will already be under scrutiny for being tough enough, is this a fight they really want to have? I would also point you to, if you haven’t see this already, the Wall St. Journal Editorial Page today, which I think raises some really tough points about not only what signal you’re sending to the rest of the world, but also to potential Terrorists out there, about just what it is that U.S. interrogators would do and not do, but also the point that’s raised there is: did the Bush administration go out of its way to make sure they were adhering to the law and not crossing over that bridge when it came to getting into torture?
(By the way: can someone tell me what a “9/11 prisoner” is?; and is there anything less surprising than the fact that Gregory looks to The Wall St. Journal Editorial Page for guidance on such questions?)
* * * * *
For years, media stars ignored the fact that our Government was chronically breaking the law and systematically torturing detainees (look at this extremely detailed exposé by The Washington Post‘s Dana Priest and Barton Gellman from December, 2002 to get a sense for how much we’ve known about all of this and for how long we’ve known it). Now that the sheer criminality of this conduct, really for the first time, has exploded into mainstream political debates as a result of the OLC memos, media stars are forced to address it. Exactly as one would expect, they are closing ranks, demanding (as always) that their big powerful political-official-friends and their elite institutions not be subject to the dirty instruments that are meant only for the masses — things like the rule of law, investigations, prosecutions, and accountability when they abuse their power.
The rules for how media stars behave are vividly evident as they finally take part in what they are calling The ‘Torture’ Debate. Here are three key rules for Beltway media behavior that, as always, are shaping what they say and do:
(1) Any policy that Beltway elites dislike is demonized as coming from “the Left” or — in this case (following Karl Rove) — the “hard Left.” Media stars recite that claim regardless of how widely accepted the belief is in American public opinion and regardless of whether there is anything “leftist” about the view in question. For years, withdrawing from Iraq was demonized as the view of the “left” even though large majorities of Americans favored it.
Identically, roughly 40% of Americans favor criminal prosecutions for Bush officials — even before release of the OLC memos — and large majorities favor investigations generally. The premise of those who advocate prosecutions is the definitively non-ideological view that political elites should be treated exactly like ordinary Americans when they break the law and commit serious crimes. Individuals such as Gen. Antonio Taguba, Gen. Barry McCaffrey and former CIA officer Robert Baer advocate investigations and/or prosecutions of Bush officials. But no matter: the Beltway opposes the idea, and it is therefore dismissed by media stars as coming from the “Hard Left.”
(2) Nobody is more opposed to transparency and disclosure of government secrets than establishment “journalists.” Richard Cohen wrote of the Lewis Libby prosecution: “it is often best to keep the lights off.” ABC News’ Peggy Noonan said this week of torture investigations: “Some things in life need to be mysterious. Sometimes you need to just keep walking.” The Washington Post‘s David Ignatius, condemning Obama for releasing the OLC memos, warned: “the country is fighting a war, and it needs to take care that the sunlight of exposure doesn’t blind its shadow warriors.” And the favorite mantra of media stars and Beltway mavens everywhere — Look Forward, Not Backwards — is nothing but a plea that extreme government crimes remain concealed and unexamined.
This remains the single most notable and revealing fact of American political life: that (with some very important exceptions) those most devoted to maintaining and advocating government secrecy is our journalist class, of all people. It would be as if the leading proponents of cigarette smoking were physicians, or those most vocally touting the virtues of illiteracy were school teachers. Nothing proves the true function of these media stars as government spokespeople more than their eagerness to shield government actions from examination and demand that government criminality not be punished.
(3) The single most sacred Beltway belief is that elites are exempt from the rule of law. Amidst all the talk about how prosecutions would destroy post-partisan harmony and whether torture “works,” it is virtually impossible to find any media star discussions about the fact that torture is illegal and that those who order, authorize or engage in torture are committing felonies. That is because — other than for fun sex scandals and other Blagojevich-like sensationalistic acts — the overriding belief of the political class is that elites (such as themselves) have the right to break the law and not be held accountable.
Amazingly, when it comes to crimes by ordinary Americans, being “tough on crime” is a virtually nonnegotiable prerequisite to being Serious, but when it comes to political officials who commit crimes in the exercise of their power, absolute leniency is the mandated belief upon pain of being dismissed as “shrill” and extremist. Can anyone find an establishment media pundit anywhere — just one — who is advocating that Bush officials who broke the law be held accountable under our laws? That view seems actively excluded from establishment media discussions.
The OLC memos that were released last week reflect a deeply corrupted, criminal and morally depraved political class (see this video clip for a strangely affecting demonstration of that fact – linked fixed), but our media stars are a vital reason why that has happened. It cannot be overstated the extent to which they are nothing but appendages of, servants to, political power (as one Twitter commentator said today about this painfully vapid video from the painfully vapid David Gregory: when media stars say “my reporting,” what they usually mean is: “this is what I was told to repeat”). These three media rules repeatedly shape how they talk about government actions, and these rules are particularly pronounced as the establishment media now is finally forced to discuss what to do about the fact that our highest political leaders repeatedly broke our most serious laws.
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As a testament to the positive effect media criticisms can have, Columbia Journalism Review‘s Charles Kaiser has been tenaciously criticizing The New York Times for failing to challenge — and instead mindlessly adopting — the claim of Bush officials that torture “worked” by producing valuable intelligence. Yesterday, a NYT Editor told Kaiser that he agreed that more attention needed to be paid to this issue, and today, the NYT published a very potent Op-Ed from an FBI interrogator at Guantanamo who aggressively disputes the claim that torture “worked.”
Also: I’ll be on Warren Onley’s To the Point program today at 2:10 p.m. EST (along with The New Yorker‘s Jane Mayer and National Review‘s Cliff May) to debate the question of investigations and prosecutions. Local listings and live audio feed can be found here (the segment will be posted to their website later today).
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UPDATE: As the recent debate-changing discovery of Marcy Wheeler demonstrated, one extremely important way to improve media coverage of these issues is to have independent journalists able to work on them. Marcy has long been one of the hardest-working and most important writers on these matters, yet has been doing it all for free, as a side hobby before and after her full-time job. FireDogLake is now attempting to raise funds to hire Marcy to enable her to work on her investigative journalism full-time. For those able to do so, contributing to that fund is something I’d highly recommend. That can be done here.
UPDATE II: The link to the video I referenced above was wrong; the correct link is here. In addition to Generals Taguba and McCaffrey, the Hard Left has another new member: Sheperd Smith (here and here). And Greg Sargent makes a key point: whether torture “worked” is, among other things, entirely irrelevant. As I pointed out more times than I can count during discussions of the warrantless eavesdropping debates, we don’t have a country where political leaders are free to commit crimes and then, afterwards, claim that their doing so produced good outcomes.
UPDATE III: The Atlantic‘s Ta-Nehisi Coates posts video of the Peggy Noonan comments and writes:
The job of journalists is to challenge the government and to challenge their readers and viewers. What sort of journalist tells his readers that some things must be mysterious? What sort of writer tells her readers, and viewers, essentially, to not ask too many questions? We have a fine era, when otherwise respected, intelligent, and well-read people step on a national stage and endorse national ignorance.
There’s nothing unusual about Noonan’s mentality; it’s the dominant mindset of our political and media class. The American Prospect‘s Adam Serwer notes a column from The New York Times‘ Roger Cohen today arguing against prosecutions (of course) and observes:
Cohen’s argument simply reflects the consensus among certain journalistic and political elites that the powerful simply shouldn’t be held accountable when they make mistakes, because, after all, we all make mistakes. This compassionate attitude naturally doesn’t extend beyond this small group. America has the highest incarceration rate in the world, fully 1 percent of the population. I’m sure there are millions of people currently incarcerated who would like it if Cohen’s policy of absolution for crimes was extended to them.
That elite-protecting consensus is the central affliction of America’s political culture. It explains not only how we continuously shield our elites from the consequences of their crimes, but also explains the reason such crimes keep happening. If you constantly announce to a small group of people that they will be able to break the law with impunity, you are rendering inevitable future rampant criminality. That’s just obvious.
Obama, Bush Secret-Keeper March 8, 2009Posted by rogerhollander in Criminal Justice.
Tags: bush administratio, bushs secret keeper, Criminal Justice, dahlia lithwick, eric holder, executive privilege, Guantanamo, harriet miers, john yoo, Karl Rove, olc, patrick leahy, president obama, roger hollander, sheldon whitehouse, state secrets privilege, stephen bradbury, torture, torture memos, us attorney firings, War Crimes, war on terror, warrantless surveillance, warrantless wiretapping, yoo memos
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Posted Friday, March 6, 2009, at 6:40 PM ET
Having inherited an undifferentiated mass of legal “war on terror” doctrine from the Bush administration’s constitutional chop shop, President Obama finds himself in the position of being Bush’s Secret-Keeper. Picking its way warily through a minefield of secrecy and privacy claims, the Obama administration this week released nine formerly classified legal opinions produced in the Office of Legal Counsel (while holding back others that are being sought) and brokered a deal whereby Karl Rove and Harriet Miers will finally testify about the U.S. attorney firings (but not publicly). Meanwhile, the administration clings to its bizarre decision to hold fast to the Bush administration’s all-encompassing view of the “state secrets” privilege, and the Nixonian view of executive power deployed to justify it. The Obama administration has also been quick to embrace the Bush view of secrecy in cases involving the disclosure of Bush era e-mails and has dragged its feet in various other cases seeking Bush-era records. If there is a coherent disclosure principle at work here, I have yet to discern it.
Trying to tease out a unifying theme here is probably not possible; there are not, as yet, enough data points. I have argued before that one of the reasons Obama will want to keep Bush’s secrets is that he wants to protect his own. What’s good for the goose and all. But it seems to me that along with good (or at least plausible) reasons for shielding Bush-era misconduct from public scrutiny, President Obama may also have some wrongheaded ideas about protecting Americans from knowing the truth.
Americans beg to differ. The president has been proved wrong in his claim that there is no political will in this country for unearthing wrongdoing. Polls increasingly show that—despite the tanking economy—close to two-thirds of the public want investigations into the Bush team’s use of coercive interrogation and warrantless wiretapping. My guess is that those numbers will only go up, as America digests the OLC’s newly released constitutional quilting projects. This latest batch of memos, after all, offers us the proposition that U.S. citizens wouldn’t be protected by the Fourth Amendment if the military were deployed against suspected terrorists in the United States and that the president (as channeled by then-OLC lawyer John Yoo) had secretly granted himself the right to suspend free speech and a free press.
What else might the president be wrong about when it comes to concealing Bush’s mistakes from Americans? Here’s a partial list:
The line between “before” and “after.” The position of the executive branch is that Obama believes in looking forward. America needs to turn the page; nothing is to be gained by digging up old skeletons; choose your future-facing metaphor. But as Sen. Patrick Leahy has taken to saying, “We need to be able to read the page before we turn the page.” All crimes happen in the past. A legal regime that perpetually looked forward would be absurd. For years now, conservatives and victims’ rights groups have used the language of “closure” to demand that rights be wronged and reparations be made when crimes occur. That’s why 9/11 families were invited to witness tribunals at Guantanamo. Yet liberals, somehow, are loath to demand “closure” or “healing” or “resolution.” When it comes from the left, such sentiment is perceived as bloodlust. Conservatives don’t have a monopoly on looking backward.
Yikes! We can’t criminalize “policy differences.” This was Attorney General Eric Holder’s line at his confirmation hearings last month, when asked if he would take action against Bush administration officials who authorized waterboarding or warrantless surveillance. But as Sen. Sheldon Whitehouse has pointed out, that very formulation is offensive. What Whitehouse has called the “pervasive, deliberate, and systematic damage the Bush administration did to America” cannot really be brushed aside as a mere difference in policy. One can choose between two legal options and call it a policy dispute. When one’s policy is to break the law, that’s what we call a crime.
People just doin’ their jobs. Former Bush administration officials do themselves no good when they simultaneously argue that their actions were lawful and necessary—and saved our lives many times over—and that they should also be excused because they were terrified. Stephen Bradbury, then acting head of OLC tells us that the appalling work in the newly declassified memos should be filtered through the prism of temporary insanity: “It is important to understand the context of the  Memorandum,” Bradbury wrote, in a memo to the file. “It was the product of an extraordinary—indeed, we hope, a unique—period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”
Obama made the same leap when he said “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.” But of course nobody is saying that everyone at the CIA needs a lawyer, or will be prosecuted for mistakes made in the field. This isn’t about going after people who were just doing their jobs under tough conditions. It’s about understanding how just doing their jobs came to include torture.
The fundamental mistake underpinning all the thinking above is that openness about past errors leads inexorably to ugliness, politicization, and rancor. But it’s worth recalling for a moment that we are already knee-deep in ugliness, politicization, and rancor. Transparency is not necessarily the first step toward indiscriminate prosecutions of everyone who ever worked for President Bush. It doesn’t mean that from now until forever, each administration will criminalize the policy differences of the administration before. It doesn’t mean that all mistakes are war crimes, or that hereinafter all investigations are all “perjury traps.” That’s the kind of binary, good/evil thinking we were supposed to have left behind us last November.
If President Obama has some better rationale for hiding the markers along the road to torture or eavesdropping from the American people, it’s time we heard it. But keeping this information from us for our own good is not an acceptable argument. The most recent OLC memos demonstrate precisely why the last eight years were so extraordinary. The suggestion that we just need to get over it is starting to sound extraordinary, too.
Bush Punk’d Us Again January 30, 2009Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush.
Tags: Alberto Gonzales, cheney, cia, david latt, executive privilege, George Bush, harriet miers, house judiciary, John Conyers, Karl Rove, presidential pardon, roger hollander, rumsfeld, torture, War Crimes
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David Latt, www.huffingtonpost.com, January 30, 2009
A lot of ink was spilled by many writers, myself included, who were convinced that President Bush would pardon key members of his administration before he left office. We were certain he would protect Cheney, Rove, Rumsfeld, Gonzales and others who were important architects of his expansion of executive power. As January 19th approached we beat the war drums ever more loudly, hoping to keep the issue in the public’s eye. We believed that by publicizing the issue Bush wouldn’t be able to hide in the shadows and sign pardons without public notice.
And then on January 20th Barack Obama was inaugurated as our 44th president. We took a collective breath and relaxed. Apparently Bush really didn’t believe in granting pardons.
Michael Isikoff reported for Newsweek that while many of us were fomenting about Bush preemptively pardoning at-risk members of his administration, he and his lawyer Fred Fielding (White House Counsel) were concocting one last expansion of executive privilege. Four days before he left office, Mr. Bush authorized Fielding to write letters to Harriet Miers and Karl Rove giving them “absolute immunity” from Congressional inquiry and prosecution. Preemptively. In perpetuity. Absolute and irrevocable.
The letters set the stage for what is likely to be a highly contentious legal and political battle over an unresolved issue: whether a former president can assert “executive privilege” — and therefore prevent his aides from testifying before Congress — even after his term has expired.
These letters were delivered before Congress or any prosecutor had initiated action against Miers and Rove. Clearly Bush sought to inoculate Rove and Miers from all attempts to prosecute them for their actions during his administration. Only when John Conyers (Chairman, House Judiciary Committee) subpoenaed Mr. Rove did the letters come to light. Waving his letter in the air, Karl Rove refused to appear before the committee.
In December while Bush was giving a round-robin of legacy interviews proclaiming his two terms as successes, Vice President Dick Cheney was taking his own victory lap. In two of those interviews he said something interesting: I authorized the CIA’s use of torture and I did it because my boss wanted me to. The Vice President had pointed a smoking gun right at Bush’s heart. Cheney was clearly prodding Bush to issue pardons to protect his underlings AND to protect himself.
Every protective measure by Bush is self-protective. If Karl Rove and Harriet Miers don’t testify under oath, then they can’t reveal what Bush agreed to and authorized. How many more such letters did Bush have Fielding write?
With so much public attention focused on whether Bush would pardon his associates, the ex-president did an end-run around the issue. Ultimately, his claim to broad powers of executive privilege may be overturned in the courts. But how long will that take? And at what expense? Clearly Bush hopes that by making inquiries so difficult, he will dissuade Congress and prosecutors from even trying to look into the dark recesses of his administration’s activities.
Back home in Texas, surely Bush is having a good chuckle right now. He punk’d us again!
Conyers Subpoenas Rove January 27, 2009Posted by rogerhollander in Criminal Justice, George W. Bush.
Tags: bob riley, bush administration, doj, don siegelman, executive privilege, hohn conyers, house judiciary, justice department, Karl Rove, roger hollander, subpoena rove, susan crabtree, us attorneys
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26 January 2009
by: Susan Crabtree, The Hill
House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) subpoenaed former White House senior adviser Karl Rove, a sign that Democrats are not letting go of investigations the Bush administration stonewalled.
The subpoena requires Rove to testify regarding his role in the Bush administration’s politicization of the Justice Department, including the firings of nine U.S. attorneys and the prosecution of former Alabama Gov. Don Siegelman.
The House Judiciary panel granted Conyers the power to subpoena several White House officials, including Rove, in 2007 after they failed to testify voluntarily before the House and Senate about the U.S. attorney ousting. The White House claimed executive privilege but offered to grant Democrats in the House and Senate private interviews with administration officials, conducted with neither oaths nor transcripts.
Democrats want Rove to appear at a deposition on Monday, Feb. 2. He has claimed that the executive privilege protections from testifying extend to former presidential advisers, but a federal judge has rejected that argument.
“I have said many times that I will carry this investigation forward to its conclusion, whether in Congress or in court, and today’s action is an important step along the way,” said Conyers.
Noting that the change in administration may affect the legal arguments available to Rove in this long-running dispute, Conyers added, “Change has come to Washington, and I hope Karl Rove is ready for it. After two years of stonewalling, it’s time for him to talk.”
Conyers has released information he believes implicates Rove in the prosecution and conviction of Siegelman on corruption charges for political reasons. Rove has been accused of hatching a plan to prosecute Siegelman because he didn’t back down from contesting the 2001 gubernatorial election results that handed the office to Republican Bob Riley.
If Obama Doesn’t Prosecute Bush’s Torture Team, We’ll Pay a Big Price Down the Road January 26, 2009Posted by rogerhollander in Barack Obama, Criminal Justice, Dick Cheney, George W. Bush, Human Rights.
Tags: Abu Ghraib, Alberto Gonzales, Barack Obama, bush administration, carl levin, cheney, cia secret sites, civil liberties, david addington, democracy, doj, eric holder, George Bush, guatanamo, International law, James Bybee, john yoo, justice department, Karl Rove, linda segura, nuremberg, patriot act, rendition, roger hollander, rule of law, rumsfeld, scott horton, special prosecutor, torture, War Crimes, waterboarding, william haynes
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December 7, 2008
“How did it come about that American military personnel stripped detainees naked, put them in stress positions, used dogs to scare them, put leashes around their necks to humiliate them, hooded them, deprived them of sleep and blasted music at them? Were these actions the result of ‘a few bad apples’ acting on their own? It would be a lot easier to accept if it were. But that’s not the case.”
– Sen. Carl Levin, D-Mich., Chairman of the Senate Armed Services Committee, June 17, 2008
It was a short but significant report in Newsweek last week, and it began like this:
Despite the hopes of many human rights advocates, the new Obama Justice Department is not likely to launch major new criminal probes of harsh interrogations and other alleged abuses by the Bush administration. But one idea that has currency among some top Obama advisers is setting up a 9/11-style commission that would investigate counterterrorism policies and make public as many details as possible. “At a minimum, the American people have to be able to see and judge what happened,” said one senior adviser, who asked not to be identified for talking about policy matters. The commission would be empowered to order the U.S. intelligence agencies to open their files for review and question senior officials who approved “waterboarding” and other controversial practices.
The article, written by Michael Isikoff, came at the heels of another report by the Associated Press, which quoted a pair of anonymous Obama advisors as saying that there was little-to-no chance that an Obama Justice Department would try to prosecute Bush-era officials for torture. The same report quoted Senate Judiciary Chairman Patrick Leahy, D-Vt., as saying that members of the Bush administration would not face war crimes charges in the United States. “These things are not going to happen.”
Common consensus is that the Bush administration has been the most lawless in U.S. history. From its illegal invasion of Iraq to the corporate-assisted, warrantless wiretapping of its own constituents, the Bush White House seems never to have held a view of the law from below. And, since long before the election of Barack Obama, a number of groups and individuals have called for accountability, from a vocal network of people calling for impeachment for Bush’s illegal and fraudulent invasion of Iraq, to, this summer, the bluntly labeled campaign, Send Karl Rove to Jail.
But if ever there was a stain on the fabric of American democracy that must be deserving of prosecution, it is the dark legacy of torture left by the Bush administration. From Abu Ghraib to Guantanamo to the CIA’s “secret sites,” proof abounds that the U.S. government engaged in systematic torture that was approved by top government officials. Ironically, a central laboratory for this corrosion of the country’s moral and legal code was the very office charged with defending the rule of law: the Department of Justice.
“It is these attorneys — Alberto Gonzales, John Yoo, James Bybee, David Addington and William Haynes — who provided the legal basis for much of the torture and abuse that occurred at Guantanamo, Abu Ghraib, and other U.S. detention facilities around the globe,” Michael Ratner, president of the Center for Constitutional Rights, writes in the recently published The Trial of Donald Rumsfeld: A Prosecution by Book. In Ratner’s view, the prosecution of these attorneys, as well as Bush, Cheney and the rest, is a critical part of not just imposing accountability on those who approved and carried out torture in the name of the American people, but in dismantling a legal framework that could lead to more torture in the future.
‘This Was an Assault on the Law Itself’
Members of the legal and human rights community are currently grappling with the question of how to hold the Bush administration accountable for its crimes. In a recent cover story of Harper’sMagazine, human rights legal scholar Scott Horton lays out the rationale for pursuing the crimes of the Bush administration. The good news is there is plenty of historical precedent for going after government torturers in the United States. The bad news is that they have been uneven, at best. From an Army captain who was court-martialed for imposing the “water cure” on Filipinos during the Spanish-American War (”He was forced to pay a $50 fine”) to Japanese military officials tried for war crimes (including waterboarding) after World War II — some of whom were sentenced to death, the severity of the sanction has depended on who is meting it out.
Prosecuting the torturers of accused “terrorists” in far-away places may not inspire a call to action by Americans now — especially when a few token prosecutions of soldiers have taken place (most famously, Abu Ghraib Army Reservists Cpl. Charles Graner and Pfc. Lynndie England). But a policy systematically designed to subvert the law should be intolerable to those who place any kind of faith in American democracy. Horton’s article — parts of which should be required reading — discusses how, during the Nuremberg trials, “the Americans and Soviets … wanted to prosecute the people who had created the legal framework for the Nazi regime, but British and French leaders objected.”
“Consequently, the United States, acting on its own, convened a separate Nuremberg tribunal to try lawyers, judges and legal policymakers,” thereby establishing “the principal that policymakers who occurred the mandatory prohibitions of international law against harming prisoners in wartime could be prosecuted as war criminals, no matter how many internal memos they had written to the contrary.”
This leads to a critical point: “The key issue that Scott pointed out in his article,” Ratner says, “is that this was an assault on the law itself.” If legal opinions that sanctioned torture are left untouched, it sets a dangerous precedent. As Ratner recently wrote on his blog, “If laws can be broken with impunity today, they can and will be broken with impunity tomorrow. Not just laws against torture and war crimes, but any and all laws; any and all limits on government.”
“The only way to prevent this from happening again,” he tells me, “is to have prosecutions that will send a deterrence message” to future administrations.
‘We Owe the American People a Reckoning’
How to do this is the most pressing — and difficult — question. Horton considers the various forms such prosecutions might take, from the International Criminal Court (too dependent on the support of the United States) to foreign courts (viable, but “true justice cannot be compelled from without”), to domestic courts (unlikely, because prosecuting war crimes are rarely done against those at the top of the chain of command). Ultimately, he settles on a model of the truth-and-reconciliation commissions carried out in South America and South Africa. Although they have had imperfect results in the past — “In some cases, a bargain was struck under which the truth about past misconduct was divulged in exchange for a pardon” — the value of the commissions largely lies in the educational benefits a commission might bestow on the public. But beyond that, a “commission plus special prosecutor,” as Horton calls it, could be carried out in public, in order to “find the facts, weigh them, and if the facts warrant, make a formal recommendation for the appointment of a prosecutor.”
For Ratner, the models that have been suggested thus far don’t go far enough. In his view, the only way to restore the rule of law is to pursue criminal investigation and prosecution. “People have been pulling their punches when it comes to seeking full prosecutions,” he says, “because of the feeling that is not politically feasible.” It may be true in the end, “but unless you demand it, you’re not going to get it.” Failing to try, he says is “the worst defeatism you can have.”
Indeed, given the destruction of the past eight years to the fabric of American democracy, to shy away from torture prosecutions would seem profoundly — and dangerously — shortsighted. Obama has stated that as a country, the United States does not torture — most recently in an interview with 60 Minutes – and much of the support he gained as a candidate from the legal and human rights community was based on his vocal opposition to the Military Commissions Act. Although his opposition to torture has been unequivocal in tone, Obama has been hesitant to state in solid terms what exactly he would do about the torture that already took place. Responding to the question this summer, from a reporter from the Philadelphia Daily News, Obama responded:
What I would want to do is to have my Justice Department and my attorney general immediately review the information that’s already there and to find out are there inquiries that need to be pursued. I can’t prejudge that because we don’t have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we’ve got too many problems we’ve got to solve.
So this is an area where I would want to exercise judgment — I would want to find out directly from my attorney general — having pursued, having looked at what’s out there right now — are there possibilities of genuine crimes as opposed to really bad policies. And I think it’s important — one of the things we’ve got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings, and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.
It’s hard to imagine the lawlessness of the Bush administration falling short of “exceptional.” But regardless, whether Eric Holder, Obama’s pick for attorney general, would take this on is questionable. “Everybody has advice for Holder,” Slate legal correspondent Dahlia Lithwick recently wrote, “starting with shuttering Guantanamo and repairing detention and interrogation policies; recalibrating the legal limits on information-gathering by intelligence agencies; doing away with provisions of the Patriot Act that encroach on civil liberties; and restoring the integrity and independence of the Office of Legal Counsel, which advises the president on the lawfulness of a proposed action.” But Holder has been known to criticize the violations committed by the Bush administration. “We owe the American people a reckoning,” he said in a speech in June.
Still, in Horton’s opinion, although torture is a federal crime and a federal prosecutor has the power to prosecute it, it is unlikely any U.S. attorney would possess the independence to do so. “Indeed,” says Horton, “so many high-level figures at Justice were involved in creating the legal mechanism for torture that the Justice Department has effectively disqualified itself as an investigative vehicle, even under a new administration.” Ratner agrees.
So what is a “reckoning”? And where are the consequences?
For Ratner, now is the time to push Obama, hard, on seeking independent prosecutions, “partisan witch hunt” concerns be damned. After all, Obama brings with him enormous moral credibility. Lifting the stain of torture is a project that could — and should — transcend partisan politics. “Obama could change this (discussion) as he changed the dialogue on race in this country,” suggests Ratner, “with a speech on torture.”
“People say that prosecuting torture is ‘looking backward,’ ” says Ratner, “but in my view, prosecutions are looking forward — looking forward so that this doesn’t happen again.”