Tags: congress, constitution, crimes against humanity, Criminal Justice, cynthia boaz, Dick Cheney, extraordinary rendition, ford, George Bush, george stephanopoulos, gonzales, high crimes, International law, Iraq invasion, justice, justice committee, nixon, nuremberg, nuremberg principle, nuremberg trial, ollie north, president obama, reagan, reconciliation, retribution, roger hollander, rule of law, rumsfeld, special prosecutor, torture, truth commission, us attorney, War Crimes, weinberger, wiretapping, wolfowitz
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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.
Tags: Abu Ghraib, armed services, Barack Obama, bush administration, carl levin, cia secret prisons, doj, eric holder, geneva conventions, George Bush, Guantanamo, harry reid, house judiciary, jason leopold, John Conyers, justice department, mukasey, Nancy Pelosi, rendition, roger hollander, special counsel, torture, us attorney, war on terror, warcrimes, warrantless surveillance
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As President Barack Obama reverses some of ex-President George W. Bush’s most controversial “war on terror” policies, a consensus seems to be building among Democratic congressional leaders that further investigations are needed into Bush’s use of torture and other potential crimes.
On Wednesday – the first working day of the Obama administration – Senate Majority Leader Harry Reid said he would support funding and staff for additional fact-finding by the Senate Armed Services Committee, which last month released a report tracing abuse of detainees at Guantanamo Bay and Abu Ghraib to Bush’s Feb. 7, 2002, decision to exclude terror suspects from Geneva Convention protections.
Senate Armed Services Committee Chairman Carl Levin, who issued that report, echoed Reid’s comments, saying “there needs to be an accounting of torture in this country.” Levin, D-Michigan, also said he intends to encourage the Justice Department and incoming Attorney General Eric Holder to investigate torture practices that took place while Bush was in office.
Two other key Democrats joined in this growing chorus of lawmakers saying that serious investigations should be conducted.
Sen. Sheldon Whitehouse, D-Rhode Island, a former federal prosecutor and a member of the Senate Judiciary Committee, said in a floor speech, “As the President looks forward and charts a new course, must someone not also look back, to take an accounting of where we are, what was done, and what must now be repaired.”
Democratic Majority Leader Steny Hoyer of Maryland told reporters: “Looking at what has been done is necessary.”
On Jan. 18, two days before Obama’s inauguration, House Speaker Nancy Pelosi expressed support for House Judiciary Committee Chairman John Conyers’s plan to create a blue-ribbon panel of outside experts to probe the “broad range” of policies pursued by the Bush administration “under claims of unreviewable war powers.”
In an interview with Fox News’ Chris Wallace, Pelosi specifically endorsed a probe into the politicization of the Justice Department, but didn’t spell out a position on Conyers’s plan to examine the Bush administration’s torture and rendition policies, which could prove embarrassing to Pelosi and other Democratic leaders who were briefed by the CIA about these tactics.
Still, when Wallace cited Obama’s apparent unwillingness to investigate the Bush administration, Pelosi responded: “I think that we have to learn from the past, and we cannot let the politicizing of the — for example, the Justice Department, to go unreviewed. Past is prologue. We learn from it. And my views on the subject — I don’t think that Mr. Obama and Mr. Conyers are that far apart.”
The emerging consensus among top congressional Democrats for some form of investigation into Bush’s controversial policies has surprised some progressives who had written off the leadership long ago for blocking impeachment hearings and other proposals for holding Bush and his subordinates accountable.
In 2006, for instance, Pelosi famously declared that “impeachment is off the table,” and prior to Election 2008, the Democratic leadership largely acquiesced to Bush’s demands for legislation that supported his “war on terror” policies, including a compromise bill granting legal immunity to telecommunications companies that assisted in Bush’s warrantless wiretaps.
A Changed Tone
Since the election – in which the Democrats increased their congressional majorities and won the White House – key Democrats have begun releasing more information about Bush’s abuses of power.
Besides Levin’s findings on mistreatment of detainees, Conyers published a 487-page report entitled “Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush” that calls for the creation of a blue-ribbon panel and independent criminal probes into the Bush administration’s conduct in the “war on terror.”
Conyers urged the Attorney General to “appoint a Special Counsel or expand the scope of the present investigation into CIA tape destruction to determine whether there were criminal violations committed pursuant to Bush administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.”
Last year, Bush’s Attorney General Michael Mukasey appointed U.S. Attorney John Durham as special counsel to investigate whether the destruction of CIA videotapes that depicted interrogators waterboarding alleged terrorist detainees violated any laws. Durham was not given the authority to probe whether the interrogation techniques themselves violated anti-torture laws.
“At present, the Attorney General has agreed only to appoint a special U.S. Attorney to determine whether the destruction of videotapes depicting the waterboarding of a detainee constituted violations of federal law,” Conyers’s report said.
“Despite requests from Congress, that prosecutor has not been asked to investigate whether the underlying conduct being depicted – the waterboarding itself or other harsh interrogation techniques used by the military or the CIA – violated the law. … Appointment of a special counsel would be in the public interest (e.g., it would help dispel a cloud of doubt over our law enforcement system).”
Additional evidence about the Bush administration’s actions is expected to become available in the coming weeks as the Obama administration loosens the secrecy that has surrounded Bush’s “war on terror,” a phrase that Obama and his team have effectively dropped from Washington’s lexicon.
Obama’s aides have indicated that there soon may be a “public airing” of secret Justice Department legal opinions and other documents that provided the underpinning for the Bush administration’s brutal interrogation policies.
Levin also indicated that he expects to release the full Armed Services Committee report – covering an 18-month investigation – in about two or three weeks. Levin added that he would ask the Senate Intelligence Committee to conduct its own investigation of torture as implemented by the CIA.
Meanwhile, Republicans have grown increasingly worried that Holder, as Attorney General, will launch a criminal investigation into Bush’s interrogation policies. They delayed a vote on his nomination demanding that he respond to questions about whether he intends to investigate and/or prosecute Bush administration officials.
Sen. John Cornyn, R-Texas, said he wants to ask Holder whether he intends to investigate the Bush administration and intelligence officials for torture
Last week, at his confirmation hearing before the Senate Judiciary Committee, Holder was asked about the practice of waterboarding, a form of simulated drowning that the Bush administration has acknowledged using against three terror suspects. Holder answered that “waterboarding was torture.”
Cornyn said Holder’s view means there is a possibility that investigations might be on the horizon.
“Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was,” Cornyn said Wednesday.