a citizen’s journal by Thomas Nephew

Department of followups

Posted by Thomas Nephew on July 12th, 2009

An occasional review of further developments in stuff I’ve written about before.

Practice to deceive, 04/22/08 — This was a post about how several key figures like John Yoo, Douglas Feith, David Addington, and William Haynes II used outright deceit to advance the torture policies they favored. I argued that

“In each case, the deception was needed in order to grease the skids for an immoral and criminal policy, by either sidestepping persons or offices with inconvenient integrity, or by pretending to agree with them even as the diametrically opposite decision was taken. In each case above the deception itself answers the question, “was the torture policy advocate acting in good faith?”

That, in turn, arguably speaks to a so-called “consciousness of guilt“, which can be proven by showing such deceptions and which is admissible circumstantial evidence in criminal trials.

Eric Holder: Yes We Can

The question may well be on Attorney General Eric Holder’s mind.  A number of reports over the weekend have suggested that Holder is seriously considering a special prosecutor, at least of those actors who overstepped even the loose legal limits imposed by the flawed Yoo/Bybee and Bradbury OLC memoranda.  The memo writers themselves shouldn’t rest easy quite yet, either.  At the “Daily Beast,” human rights legal expert Scott Horton writes,

As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House—so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented.

(See also Marcy Wheeler’s comments here.)

It’s by no means clear (to put it mildly) that Holder will call for a special prosecutor; while he values the independence of the Justice Department, it can’t hurt to remind him you have his back if he bucks the likes of the West Wing Weasels (TM, but please use widely) David Axelrod and Rahm Emanuel on this.  Please avail yourselves of the opportunity to do so using the ACLU button to the right or the Holder “Yes We Can” button on the left.  You can also visit the “AfterDowningStreet” site linked by the orange “Torture is a war crime! Prosecute” button at the upper right; David Swanson is currently asking people to call or write the Justice Department at 202-514-2001 or

Weymouth: What did I know and when did I know it?, 07/09/09 — Washington Post ombudsman Andrew Alexander had a lengthy post-mortem of the “pay to play” Post ‘salon’ proposal in the Sunday, July 12 edition. Calling it an “ethical lapse of monumental proportions,”, Alexander found that early scapegoat and Post business exec Charles Pelton had in fact tried to sound out “questions about ethics […] with both [CEO K. Weymouth and executive editor Marcus Brauchli] months ago.” For their part, the two seem to have believed that their underlings’ silence at a June 24 meeting signalled consent, when of course it merely signaled wanting to stay employed:

Several [newsroom employees] now say they didn’t speak up because they assumed top managers would eventually ensure that traditional ethics boundaries would not be breached. […] Neither Weymouth nor Brauchli can recall anyone raising concerns, although both say they wish someone had. […] In an interview, Brauchli said it was his responsibility to vet the concept and that it is “understandable” that no news managers at the meeting raised a caution. “When the publisher and the editor both appear to have signed off on an idea, I think it is perhaps true that a certain complacency sets in,” he said. For that reason, lower-level managers might be less inclined “to stand up and say: ‘Whoa, this is a bad idea.’ ”

Ya think? Alexander draws on interviews with Weymouth and Brauchli for the piece. Meanwhile, in “Veteran editors offer advice to the Post,” Northwestern media ethics professor Loren Ghiglione displays a keen eye for the main chance: “The board has audit, compensation and finance committees. Why not one focused on the company’s values and ethics, headed by an ethics prof?” Oh hell, why not.

On the irrelevance of “Balkinization in particular and the legal profession in general, 05/25/09 — In an irritated post I decried the growing irrelevance of the legal blog ‘Balkinization’ to ongoing, urgent issues such as torture, the abrogation of habeas corpus at Guantanamo and elsewhere, and other abuses of executive power — all matters that the blog had once been at the forefront of covering.

Of late, though, there have been a number of posts on precisely these subjects, including ones by Jack Balkin, (“The Inspector General’s Report and The Horse that is Already Out of the Barn Door“, “We believe that anyone suspected of war crimes should be thoroughly investigated“)  Sandy Levinson (“A further disappointment from the Obama Administration“, and newcomer Deborah Pearlstein (“Post-Acquittal Detention“).

While I don’t agree with all of what they have to say, I agree with a lot of it.  Regardless, it’s all worth reading — and it’s rarely wise to generalize too much along the lines of “the dog that didn’t bark” with blogs or the busy people who are taking time out to write them.  I shall meditate on my impatience.

NOTES: links to my posts are highlighted in gray and dated. Washington Post item via Yglesias.

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