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On Broder’s “Stop Scapegoating”

Posted by Thomas Nephew on April 27th, 2009

We have, in my view, a fairly simple set of connected propositions:

  1. Torture is illegal under United States law and international law.*
  2. The United States of America knows of Americans who have committed torture, as well as of Americans who have conspired to commit torture.**
  3. The United States of America is required by U.S. statute and international treaty to prosecute such crimes when it becomes aware of them.***

It’s really all over but the shouting and denials when you set these propositions next to each other.

Of course, shouting and denials there will be.  But while I’d expect it from borderline psychopaths like Karl Rove, Rush Limbaugh, and Dick Cheney, it remains unsettling to see it from David Broder, who this weekend penned the most shameful editorial of a once illustrious career. Broder’s Sunday “Stop Scapegoating” piece is a kind of negative Gettysburg Address: a radical downward redefinition of the American creed.  His lazy, deeply dangerous argument against prosecution boils down to one irrelevant canard, one telling assertion, and one pitiful abdication of what it means to be an American citizen.

Accountability cloaks vengeance – so no accountability
Broder’s irrelevant canard comes early in the piece in guessing at the motives of those who want prosecution, and pretending that should matter:

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.

As hilzoy writes, “First, who died and made David Broder Sigmund Freud? How on earth does he presume to know what the actually motivates those of us who think that the people who authorized torture should be investigated?” But also: So what? Suppose our “plausible-sounding argument” is actually true: “without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations.” In that case, by not investigating torture now, we would be setting ourselves up for future government lawbreaking. Isn’t it obvious that preventing this matters more than anyone’s motives?”

Everything was done properly
But Broder’s most telling assertion — and, in the context of the rest of his opinion piece, the most deeply shameful one — comes next:

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.

Let’s assume Broder was right (although he isn’t****).  Would that be sufficient?

No it absolutely would not.  No doubt the Bad Wannsee Conference featured all the proper officials, too; there were agendas, documents, minutes and meetings.  Everything properly done, by the proper people — and irredeemably corrupt and evil all the same.

Mr. Broder asserts that since these things were decided by the right people, they were therefore defensible and legal.  Nothing could be further from the truth, nothing could be further from anything our common law, the U.S. Constitution, and the rule of law, and hundreds of years of struggle stand for.  It is precisely when people in power break the law and bonds of humanity that they must be held accountable; distrust of power and penalties for its abuse are (or were) the hallmarks of the American political system.  Like some child or imbecile angrily tearing apart an annoying puzzle he can’t solve, Broder is helping tear down something he barely understands.

You say war crimes, I say policy disagreements, let’s call the whole thing off
That assertion is followed on its heels by a rank abdication of citizenship and responsibility:

One administration later, a different group of individuals occupying the same offices has — thankfully — made the opposite decision. Do they now go back and investigate or indict their predecessors?

That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness — and injustice.

Suppose that Obama backs down and Holder or someone else starts hauling Bush administration lawyers and operatives into hearings and courtrooms.

Suppose the investigators decide that the country does not want to see the former president and vice president in the dock. Then underlings pay the price while big shots go free. But at some point, if he is at all a man of honor, George W. Bush would feel bound to say: That was my policy. I was the president. If you want to indict anyone for it, indict me.

Is that where we want to go? I don’t think so. Obama can prevent it by sticking to his guns.

Perhaps if it’s said very slowly and loudly, Mr. Broder will understand: if Obama commits war crimes, I’ll want him prosecuted, too.  If he doesn’t, I won’t.  No doubt there will be some wingnuts who’ll want him prosecuted, anyway, to teach us all a lesson, but they won’t matter and it won’t happen.  The reason that Bybee and Yoo, Rumsfeld and Gonzales, and Cheney and Bush are in hot water now — or at least see the steam rising off in the distance — is because they deserve to be, and certainly not because they face unusually cunning or powerful political foes.

Now I’m inclined to agree that it would be an injustice to stop at the underlings before getting to the higher-ups.  Trouble is, that’s what we’ve done already.  How is it that Lynndie England served time for her pitiful role in Abu Ghraib, or Spc. Glendale Walls for his in Bagram — and John Yoo hasn’t?  Or are grunts like England and Walls too lowly to even qualify for “scapegoat” status?  To paraphrase Lincoln’s famous question (and with at least as much if not more justice), “Must I jail a simple-minded soldier girl who leads a man on a leash, while I must not touch a hair of a wily lawyer who approves waterboarding and stress positions?”

As for Broder’s big nightmare — bring it on.  First and least, say the words “man of honor” in connection with George W. Bush, and the phrase “fat chance” powerfully suggests itself.  Second, Bush can say whatever he wants, that won’t drive a prosecutor’s decision, the ability to get a guilty verdict will.  And should.

But third, and most importantly, far from being something to be feared, ’tis a thing devoutly to be wished that a President be proven not to be above the law.  Don’t let them tell you it’s happened before — it never has: Ford famously short-circuited the possibility with Nixon, no doubt to Broder’s strong approval.

No, this is arguably a test all of American history has been preparing for — the proof that no one, not even the most powerful person in the land, is above the law.  Broder acts as if that’s a shameful possibility driven by nothing more than the desire for partisan vengeance.  To the contrary, it would be the most glorious demonstration of the rule of law, and of the primacy of human rights — anyone’s human rights– humanly conceivable.  And Wormtongue Broder counsels us to avoid it.

Misfire?
There’s more, of course.  There’s a whole post, no, a whole magazine article in Broder’s (and his ilk’s) euphemisms for torture — Broder’s own weasel phrase is “painful coercion.” There are also the familiar Broderian tropes of “standing up to the grassroots” and “confronting populist anger” — as if truths become less convincing the more people strongly hold them to be self-evident.

The one good thing about Broder’s piece is that it’s hard for me to imagine Obama reading it and not feeling a flush of shame creep over his cheeks.  True, Obama is all too much like Broder in putting a premium on avoiding conflict.  He’s all too slippery when it comes to honoring campaign promises (like the ones about not supporting FISA bills with telecom immunity, or about not undermining a publicly financed presidential election campaign.) And he’s been far too willing to take up Bush administration arguments — from secrecy to habeas corpus — and make them his own.

But it’s hard to imagine him reading this piece and saying “Yes, exactly; that is who I am; the chance to duck this responsibility is why I’m President.  David Broder’s way with words has convinced me at long last!”  At the end of the day, I pray that Broder’s approval — based on such a pitifully weak sense of what America is, and based on such an embarrassingly self-centered sense of what it should be — cannot mean more to Obama than his own self-respect, and his own deeper sense of what this country should stand for.

=====
* U.S. Code § 2340A. Torture; CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment
** Holder: Waterboarding Is Torture, And The President Can’t Torture; OLC memorandum: Khalid Sheikh Mohammed was waterboarded 183 times in one month; Judge Susan Crawford: Detainee Tortured, Says U.S. Official Trial Overseer Cites ‘Abusive’ Methods Against 9/11 Suspect; International Committee of the Red Cross report: “the ICRC clearly considers that the allegations of the fourteen [Guantanamo interviewees] include descriptions of treatment and interrogation techniques — singly or in combination — that amounted to torture and/or cruel, inhuman or degrading treatment.”
*** See, e.g., U.N. Rapporteur on Obama Amnesty for CIA Agents (Scott Horton translation of Austrian newspaper DER STANDARD interview with Manfred Nowak); Glenn Greenwald interview with Mr. Nowak.
**** See various items listed under “Practice to Deceive,” and more recently, Philip Zelikow’s revelation that copies of his memorandum opposing an OLC memo were gathered up and destroyed.

OTHERS ON BRODER: Andrew Sullivan, digby (“Hullabaloo”), Glenn Greenwald, Scott Horton, Brian Tamanaha: “Broder is wrong because the OLC lawyers were not asked for their opinion on policy. That lies beyond their charge. They do not have final authority on policy. They were asked to render a legal opinion on the legality of the proposed use of the abusive interrogation techniques. If the policy was illegal, it was the job of the OLC lawyers to say “NO,” as Bradbury asserts in his OLC Best Practices Memo, “even when that advice may be inconsistent with the desires of policymakers.””

MORE AMUSINGLY: Charles Pierce’s “Trust Me, Mr. President, I can take it,” excerpted here by Patrick Nielsen Hayden.
UPDATE, 4/28: Fareed Zakaria joins the “prosecutions would be criminalizing policy disagreements” brigade.
UPDATE, 4/29: So does Garrison Keillor — under the inexcusable title “Let War Crimes be Bygones.”  Also: Thomas Friedman (h/t RobertNAtl).
UPDATE, 5/1: Et tu, Michael Kinsley.  Also (but somewhat less of a surprise) Charles Krauthammer.

20 Responses to “On Broder’s “Stop Scapegoating””

  1. WWWeber Says:

    Broder hasn’t been right in the head for some time now.

  2. Nina Says:

    Although I am generally in agreement with you, I have to admit that the one argument Broder makes that gives me pause is: “It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness — and injustice.”

    That truly concerns me. I realize I’m wandering pretty far off the reservation here, but, I can entertain the thought that maybe the way it’s happening is the way it’s supposed to happen. Congress, and the Press and the American people weren’t able to get it together and confront torture at the time. So, the way we dealt with it was to have an election and throw the Party out — dramatically, decisively. And, that’s how it is supposed to work. True, we didn’t have the opportunity to prosecute, but, waterboarding was abandoned after it was reported on — again, isn’t that how journalism in a democracy, is supposed to work?

    So, what if by insisting on prosecutions, we end up disrupting the “ecosystem” of democracy? What if we interfere with democracy’s self-healing process?

    Anyway, for what it’s worth, these are just the musings of an open mind….

  3. Nell Says:

    for turning all future policy disagreements into political or criminal vendettas

    Torture is a crime. It’s not a choosable policy, so there can be no “policy disagreement” about it.

    It’s also pretty self-absorbed to talk about ‘healing’ as if it’s the American people that need it.

    If there’s any reconciliation, it’s not in our power to grant it — that’s in the hands of the men, women, and children that we abused and tortured. They’re the ones who need healing, and justice is the absolute minimum they require in order for that to be possible.

  4. Thomas Nephew Says:

    Thanks for dropping in, Nina! Sorry for the delayed response — I fell asleep sooner and more completely than I thought I would last night. To get this out of the way, there’s no reservation here that you could wander off.

    That said, I disagree that the concern about endless political vendettas should outweigh the need to simply do what our laws require of us.

    Maybe I’m misunderstanding, but your concern seems somehow based on the notion that we failed so badly in the last eight years that we should settle for accepting our failure and our inability to do better. I disagree on both counts.

    First, I think enough of the American people registered opposition and worked against torture and for Bush’s defeat that the country is not somehow tainted by the Bush years. It’s not what it might have been, but it was significant. The results were paltry mainly because the institutional decks were stacked against us — first the secrecy had to be penetrated, then minds had to “come about” from rage about 9/11, then the story had to be understood, then we had to wade into the molasses of American public opinion and politics (with a truly pitiful party as our ‘champion’).

    Yet we’ve prevailed to an extent I didn’t think possible in 2004 when I posted this (“Moral Values” — nothing but a picture of Lynndie England and the slogan “four more years”). A lot of facts are out, the terms of the debate are vastly different, there’s a recognition of how torture is — for lack of a better word — a sin. So only now do we finally have a realistic opportunity to do what ought to be done. To my mind, to quit now would be the failure, not what has gone before.

  5. Nina Says:

    Thomas, I guess I think there is an argument to be made that the clock simply ran out — we did what we were able to do within the given timeframe, but we didn’t meet the deadline. If we do take the unprecedented step of going back and prosecuting a previous administration, we can count on the next Democratic president (Barack Obama) being prosecuted as soon as he leaves office — guarenteed. In terms of the workings of our democracy, that gives me pause. If we push for prosecutions, I think we need to know that Obama’s prosecution will come next and be prepared to take responsibility for it. We need to acknowledge that the medicine, in this situation, has perhaps as much potential to harm the patient as the disease.

  6. Thomas Nephew Says:

    clock ran out
    What clock? What timeframe? What deadline? We are simply required to prosecute torture. It’s the second we say we *won’t* that we’re in another legal zone — one where other countries are permitted and even required to take action of their own.

    we can count on the next Democratic president (Barack Obama) being prosecuted as soon as he leaves office — guarenteed
    Well, I don’t think it’s as guaranteed as you do. But like I wrote, if it’s warranted, fine; if it’s unwarranted, little will come of it. I can live with either scenario. I don’t think the latter (unwarranted prosecution of Obama) is likely, but more importantly I don’t think it would ‘harm the patient’ anywhere near as much as not surgically removing the disease of government-approved torture.

  7. RobertNAtl Says:

    Just noting that history did not begin with Bush 43′s inauguration; Clinton was prosecuted during his administration for a far lesser offense than what Bush et. al might be charged with. I say this to point out that the Republicans are likely to gin up something against Obama as soon as they are in an electoral position to do so (which looks a long ways off to me anyway), so catering to their political desires by not prosecuting Bush et. al doesn’t really gain you anything at all, IMO.

    My overall position is that an investigation and, if the prosecutors think it is warranted, a series of indictments, is necessary because we as a nation need to confront this issue through our existing constitutional structure, and then let the chips fall where they may. I think that taking investigations/indictments off the table a priori because of their potential political impact is a no-confidence vote in our entire constitutional system (which I think would be unwarranted).

  8. RobertNAtl Says:

    Your post wasn’t about Thomas Friedman’s column today in the NY Times (http://www.nytimes.com/2009/04/29/opinion/29friedman.html) , but his column relates closely to the issues raised in David Broder’s column, and so I felt it appropriate to add a comment in this thread about Friedman’s column. I felt compelled to respond to that column, and herewith a copy of my response:

    Mr. Friedman,

    I read your column about Obama getting it right on the torture prosecutions with great interest. I am a regular reader of your columns (and books).

    I do respectfully disagree with your latest column and wanted to set out my reasons why, even realizing that you hardly have time to read e-mails from everyone who disagrees with a position you take in a column.

    To be brief, I think that an investigation and, if the prosecutors think it is warranted, a series of indictments, is necessary because we as a nation need to confront this issue through our existing constitutional structure, and then let the chips fall where they may. I think that taking investigations/indictments off the table a priori because of their potential political/social impact (as you put it, they would “tear our country apart”) is at its core a no-confidence vote in our entire constitutional system (which I think would be unwarranted).

    As to the other argument, that al Queda is a enemy sui generis, I think that could and should be raised as a potential defense in any prosecution. But let it be subjected to tests of factual accuracy and legal relevance in the institutions we have set up in this society to judge such defenses (i.e., the court system).

    Unlike many of the comments I have read disagreeing with your column, I don’t think it is a foregone conclusion that any defendants are obviously guilty under our nation’s laws. I do think our nation’s laws should be applied to them by independent DoJ prosecutors and, if an indictment is warranted, their individual guilt or innocence should be determined in a court of law. I suppose your arguments didn’t convince me otherwise and wanted to convey my thinking to you.

    Thanks for your consistently interesting columns and books.

    Sincerely,

    Robert Nephew

  9. Nina Says:

    Okay, this is really long. First, it wasn’t that long ago that Clinton was impeached for getting a blow job and lying about it — the Republicans will serve up plenty of revenge, even if they have to serve it cold.

    There was no literal deadline, there was a traditional one. Traditionally, U.S. presidents don’t prosecute their predecessors. In my opinion, we should have impeached Cheney and Bush when we had the chance, and we do bear responsibility for not doing that (although I hear you that, in our defense, the deck was stacked very heavily against us).

    But, I’m really playing Devil’s Advocate with myself. The truth is, I make the argument all the time that really the simplest thing to do is just to follow the law. However, I don’t think we should be surprised if the consequences of prosecutions aren’t all that we’d hoped for. I think, in terms of deterrance, the most important thing is getting all the information out there — right now, 49% of Americans still think torture is okay under some circumstances. That won’t change with prosecutions — that will change with information and education — and prosecutions have the potential to limit the amount of information coming out.

    There will be a political price if we succeed in getting prosecutions. And, we may feel that our lofty principles make that irrelevent, but, it might not seem so irrelevent to our children, when they look back and say that we blew the best chance in a generation to get healthcare and education and save the planet.

    Prosecutions, I believe, will wreak havoc on the Democratic agenda, and make Obama very vulnerable — I guess if we believe the rule of law is more important than all that, we have to be prepared to make those sacrifices. I just think we should take responsibility for the choices we’re making, not kid ourselves that there will be no blowback. The Obama administration is not stupid –they know there will be blowback and that’s why they really, really, really don’t want to go down this road.

    Roosevelt and Wilson got away with their wartime abuses, and we pardoned Nixon. Maybe the truth is that Nixon was right, “it’s not illegal when the president does it.” We have evidence that our leaders have, in fact, been above the law — and somehow the Republic has survived. Even now, after the abuses of the Bush administration, democracy seems to be self-correcting — we put the Democrats in charge.

    All that having been said, I am still willing to take a huge gamble and say that the Republic could not just survive, but thrive, if we took the unprecedented step of saying not even the president is above the law. If we attempted to truly live up to our values, we would be a better nation. But, every time we try to live up to our values, it comes at a price. It’s a price worth paying, but, it’s sometimes a terrible price.

    60% of the country, at last count, wants investigations — 40% wants prosecutions. Personally, I’m still ready to go forward with prosecutions, but, I think we should be as careful as possible with how we proceed and be prepared to deal with the fall out.

    All speculating aside, will there be prosecutions? I’d bet no. But, the upside of that would be that we could quit focusing on Bush and start pressuring the Obama administration to stop with the “Sovereign Immunity” and Get FISA Right.

  10. RobertNAtl Says:

    Thank you for your comment, Nina. I agree with your comment that prosecutions “may not give us all we hope for,” and I personally don’t prejudge the guilt of anyone if indictments are eventually brought. As an aside, I don’t think that prosecutions, if they occur, would necessarily include Bush 43. The Spanish prosecutor acting overseas, for example, is not seeking indictments against Bush (or Cheney or Rumsfeld, for that matter); he is seeking criminal indictments against David Addington, Doug Feith, Alberto Gonzales, Jay Bybee, John Yoo, and a guy names Haines who was the chief legal counsel to the DoD. If indictments are ever brought in the U.S., therefore, it’s conceivable that they would not include Bush or Cheney.

    It’s also an open question in my mind whether any prosecutions would be successful. I haven’t researched the law, but I wonder, especially in any cases against the lawyers involved (Yoo, Bybee, Gonzales, Haines), whether the issue wouldn’t boil down to whether the legal arguments in their various briefs were even remotely plausible (as opposed to “correct” or even “within the mainstream of legal thought”). Couple that with the burden of proof on the prosecution in a criminal case (“beyond a reasonable doubt”), and it would seem to me that the prosecutors would face a difficult task indeed to prove a criminal conspiracy on their part, as suggested in Thomas’ original post above.

    I do think these factors tend to argue in favor of *not* taking indictments off the table a priori because of the potential political damage. Rather, I think they would restore confidence in our entire constitutional system, a confidence that could itself be damaged if indictments are pre-empted by a “truth commission” or by a political decision to simply not even open an investigation. And, I don’t *necessarily* want prosecutions; if an independent DoJ prosecutor (think of someone like Patrick Fitzgerald) investigates the matter and issues a statement that no prosecution is warranted, I would be satisfied. I guess I just don’t want that decision to be taken out of his hands for political reasons.

  11. Thomas Nephew Says:

    Great letter to Friedman, Robert.

    You’re the lawyer, not me, so your judgment about the difficulty of successfully prosecuting the OLC lawyers carries that much more weight than mine. I think re Bush and Cheney, there may be a “sovereign” exception in international law, but I’m just dredging that up from vague memory, not from recent research let alone expertise.

    I suppose I necessarily prejudge the guilt of the people I’m after (Yoo, Haynes, etc.) or I wouldn’t harp on the issue so much. So I’m “biased,” and I admit it. I understand that a forthcoming DoJ Office of Professional Responsibility report will presumably deal with the issue of whether the OLC opinions were “facially” incompetent; I suppose I’ve relied on commentaries saying they were fairly clearly so (e.g., not citing Youngstown Sheet and Tube even as they asserted complete executive branch dominance in wartime, war-related decisionmaking).

    Some of the next line of defense appears to be “good faith” rather than “remotely plausible.” Aside from the legal malpractice in the memos themselves, the numerous deceptions Cheney et al engaged in to push these policies argue the opposite to me. See again “Practice to Deceive” for my attempt to argue and support this.

    But at the end of the day I also simply don’t accept that high government officials can concoct rationales for torture, approve of torture, and then get away with it — I don’t care whether they did so in good faith, or whether one argument out of ten that they made was plausible. If they can, we live in a worse country and a worse international system than I thought, and I can’t help but say so. It seems extremely critical to me to make torture a “third rail” that you touch at your legal peril — even and especially when you’re a government official.

  12. RobertNAtl Says:

    Well, I’m a lawyer, but not a criminal defense lawyer, so my limited “expertise” is largely the result of me dredging up vague memories of criminal law principles from law school 23 years ago. For that reason, I don’t really think that my background makes me any more of an expert than you or any other fairly well-informed blogger or poster on this issue. I do think that criminal trials are very unpredictable at the outset, and so I am hesitant to predict that Yoo et. al would be found guilty (assuming that an investigation would even yield an indictment). I think they may well be guilty in a colloqial usage of that term, but nonetheless would be found guilty in a court of law (kind of like O.J., say).

  13. Nell Says:

    Traditionally, U.S. presidents don’t prosecute their predecessors.

    Traditionally, U.S. presidents don’t make torture official policy.

    All that having been said, I am still willing to take a huge gamble and say that the Republic could not just survive, but thrive, if we took the unprecedented step of saying not even the president is above the law. If we attempted to truly live up to our values, we would be a better nation. But, every time we try to live up to our values, it comes at a price. It’s a price worth paying, but, it’s sometimes a terrible price.

    Your concern about getting information out in order to bring more of the public around is a legitimate one. There is a coalition of legal and human rights organizations who are pushing a Commission on Accountability to accomplish that (none are ruling out prosecutions as a result, in fact most of the organizations are supporting it to ensure that enough information is on the table to achieve political support and to make clear the imperative of prosecution).

    I’m not convinced we need that. The release of more images and video of torture in Afghanistan, Iraq, and Guantanamo scheduled for late May will almost certainly fuel public demand for some action toward accountability, and maybe this will be the form it takes. I’m only willing to support inquiries/investigations if they don’t unduly postpone or undercut prosecutions, and certainly not as a substitute for them. But for now it certainly seems like an effort you could support.

  14. Nell Says:

    On the ‘good faith’ question in possible trials for the OLC lawyers: A reliance opinion from the Office of Legal Counsel is a very specific kind of legal writing, one that used to be considered the gold standard of legal scholarship before the office was populated with mob lawyers of the Bush-Cheney ‘get your judgeship here’ syndicate.

    Reliance opinions need to cite a wide and relevant range of the cases that bear on the issue being assessed. The OLC memos omit major, well-known cases with a direct bearing on the issue.

    They need to introduce facts bearing on the issues derived from the actual consensus and leading scholarship on those subjects. The OLC lawyers accepted every bit of data about the effects of given “procedures” fed to them by the CIA’s lawyers, who cherry-picked it from very restricted and self-interested sources to begin with. The OLC lawyers failed to seek out any additional facts for themselves.

    Right there, on those two grounds alone, the OLC memos released don’t even come close to meeting the standard for a genuine, good-faith reliance opinion. A jury of lawyers having any familiarity at all with traditional OLC products would find that to be true beyond a reasonable doubt. Any old jury? Tough call, requiring a very patient and skilful prosecutor.

  15. Nell Says:

    Scott Horton’s post The Torture Tango does a masterful job of demonstrating the bsd faith involved in the production of the OLC memos without detailed reference to the contents of the memos or lawyer-knowledge of OLC tradition.

    Horton relies on the timing and context of what was going on within the CIA and between the CIA and other parties wrt the prisoners to make a very convincing case that the memos couldn’t possibly have been written in good faith.

  16. Thomas Nephew Says:

    @Nell: Thanks very much for the links and the discussion. Horton’s arguments are particularly good; I don’t know the day by day chronology of these things very well at all, and this helps clarify the argument a lot.

    Is there discussion somewhere by the sponsors of the “Commission on Accountability” that they don’t support immunity for testimony? That’s been a sticking point for me — Leahy is open to that, or was last time I looked.

    @Nina: Thank you, too, Nina. I think we agree that we’d both want prosecutions do be done properly and soberly, so that sane and honest people could agree they weren’t witch hunts. I just don’t want them called “witch hunts” or “retribution” in advance and then ruled out; not saying you were, but others do (e.g., Garrison Keillor recently), and it drives me up a wall.

  17. Nell Says:

    Is there discussion somewhere by the sponsors of the “Commission on Accountability” that they don’t support immunity for testimony?

    An excellent question to which I don’t know the answer. It might be that they do support granting immunity for testimony, which is why the ACLU and CCR (leaders of the prosecution effort) don’t back such a commission.

  18. Mary Ray Worley Says:

    The whole “scapegoating” thing just blows me away. The scapegoating has already been done, perhaps not in the CIA, but the supposed “few bad apples” in the military who were convicted of torturing prisoners in Iraq are the real scapegoats here.

    And calling this “policy” turns my stomach completely. This is not a question of “policy.” It’s a question of the Rule of Law.

  19. Thomas Nephew Says:

    I should note that my concern (about truth at the price of immunity) was directly addressed in a facebook group about these issues, “Mr. President: Please Establish a Truth Commission on Torture.” Human Rights First’s (HRF) David Danzig sent the following e-mail to that group (so he has admin privileges for the group) on February 27:

    I have read with interest the comments posted on our Facebook page (http://www.facebook.com/group.php?gid=51018523737). Thank you to everyone who has posted for contributing to the discussion.

    Many people wrote to express concern over the relationship between a truth commission and prosecutions.

    For example, Thomas wrote, “A truth commission must *not* preclude a special prosecutor or the possibility of prosecutions.”

    We agree. A truth commission can not and should not stand in place of prosecutions. These two methods of accountability can work side by side.

    Those who have committed crimes should be prosecuted.

    The commission’s purpose would be to evaluate the implications of past abuses and to identify lessons learned in order to guard against future abuse.

    We believe a truth commission would help this country move forward and put torture behind us. The latest polling suggests that 43% of Americans are in favor of using torture against suspected terrorists, with 48% opposed.

    Many Americans who are for torture believe that these methods are effective. We believe that a truth commission would show definitively that torture is not only morally wrong, but that it is also a counterproductive way to fight terrorism.

    The commission would look at cases where the U.S. used torture and make judgments about its intelligence value. Was the intelligence gathered using torture accurate? Could it have been gathered in other ways? What negative repercussions has the U.S. faced as a result of the use of these techniques? What laws, regulations and guidelines were compromised in order to allow for abusive interrogations?

    The answers to these questions – presented by a blue-chip, a-political set of panelists – will help settle the still lingering public debate in this country over the use of torture. Fully understanding the mistakes of the past is vital to forging responsible forward looking policies.

    As Senator Whitehouse told Salon, “We have this American government, which has an architecture and a shape and a system that drives it, and constrains it, and that keeps it honest. And what happened is that the Bush administration figured out a lot of ways to tunnel through the walls and sneak over the fences. So now we need to go back and say, ‘We have got to plant those walls deeper so you can not tunnel under them.’ We’ve got to spotlight how they did it. The ultimate goal in this is to protect and enhance American democracy.”

    Best,

    David Danzig
    Human Rights First

    (Emphasis added.) So given Danzig’s position within HRF, I know HRF wanted the right thing. Thing is, Leahy’s Truth Commission may head somewhere else.

  20. Nell Says:

    I was wrong to include the ACLU in the “hardcore” prosecutions coalition (organized by the Robert Jackson Steering Committee). The ACLU has called on Holder to name a special counsel to investigate for prosecution (in a petition on their own site), but they haven’t signed on as an organization to the RJ letter of February 27.

    The RJ coalition is fundamentally the Center for Constitutional Rights, National Lawyers Guild, After Downing Street, and a collection of lawyers and researchers with expertise in human rights issues (e.g., Philippe Sands, Andy Worthington).

    The very name of the Commission on Accountability is a strong hint that the organizations pushing it don’t see ‘truth’ as a substitute for accountability but a precondition, so it’s encouraging to have the confirmation of David Danzig’s statement.

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