by hilzoy
"President Obama is facing new pressure to reverse himself and to ramp up investigations into the Bush-era security programs, despite the political risks.
Leading Democrats on Sunday demanded investigations of how a highly classified counterterrorism program was kept secret from the Congressional leadership on the orders of Vice President Dick Cheney.
Senator Dianne Feinstein, Democrat of California, who is the chairwoman of the Senate Intelligence Committee, on Fox News Sunday called it a “big problem.” Senator Richard J. Durbin, Democrat of Illinois, on “This Week” on ABC, agreed that the secrecy “could be illegal” and demanded an inquiry.
Mr. Obama said this weekend that he had asked his staff members to review the mass killing of prisoners in Afghanistan by local forces allied with the United States as it toppled the Taliban regime there. The New York Times reported Saturday that the Bush administration had blocked investigations of the matter.
Attorney General Eric H. Holder Jr. is also close to assigning a prosecutor to look into whether prisoners in the campaign against terrorism were tortured, officials disclosed on Saturday.
And after a report from five inspectors general about the National Security Agency’s domestic eavesdropping said on Friday that there had been a number of undisclosed surveillance programs during the Bush years, Democrats sought more information."
Let me add my own little millibar to that pressure. All of these things deserve to be investigated. This is not a matter of focussing on the past at the expense of the future. We will not have the future we want if government officials can break the law with impunity, safe in the knowledge that no future administration will be willing to take the political heat and investigate them.
Since anyone who is reading this probably knows what I think about these questions, I'd like to focus instead on this:
"Senator John McCain, Republican of Arizona, said on “Meet the Press” on NBC that despite his dismay at the Central Intelligence Agency’s past interrogation methods, including waterboarding, he opposed a criminal inquiry into torture, which he said would “harm our image throughout the world.”"
I think that is exactly wrong. People around the world are not under any illusions about whether or not we tortured people. They know that we did, and that fact has already, and rightly, done enormous damage to our image.
What they don't know is whether we are prepared to do anything about it. Do we just lecture other people about their shortcomings, or are we ready to face up to our own? Most of the people I've met abroad assume that we will do nothing. They don't think this because of any particular dislike of the United States; they just assume that that is the way things work. If we do not hold anyone to account for any of the crimes that were committed under the last administration, they will not be surprised.
If we do hold people to account, on the other hand, that will make an impression.
In thinking about this, I am reminded of conversations I had when I was in Pakistan. My first trip there was in 2007, when the campaigns were just kicking into gear. People asked who I supported; I said Obama. They asked: but can he possibly win? I said that while I was reluctant to judge, I thought that he could.
The most common reaction — not uniform, but common — was a combination of several things. On the one hand, I was American and they were not, so the people I talked to naturally assumed that I probably had a better grasp of US politics than they did. Besides, I was their guest, and they were wonderfully polite. On the other hand, however, they found the idea that Barack Obama — an African-American who did not come from a privileged background, whose father was from a Kenyan village — could possibly be elected President literally unbelievable.
It was fascinating to watch them trying to reconcile these conflicting impulses: I was talking about a country I lived in, which most of them had never been to, and I was not obviously insane, but I was saying something that could not possibly be true. And, as best I could tell, there were two reasons why it couldn't be true: first, whoever the Pakistani analog of Barack Obama might be, that person would never be elected President in Pakistan, and second, they had been disappointed in America's track record in living up to its ideals, and so were not inclined to believe that it would do so this time.
The last time I went, Barack Obama had secured the nomination. People in Pakistan were astonished, but they were also really inspired. And I don't think that this was mainly about Obama's policies. It was about us living up to our ideals: about the idea that in America, anyone really can grow up to be President, and about the idea that enough of us had managed to look past our long history of slavery and discrimination and bigotry that we might elect Barack Obama President.
It gave people hope: the hope that cynics are not always right, and that the fix is not always in.
If we're interested in our image abroad, we could do a lot worse than simply deciding to live up to our ideals: for instance, the rule of law. It's the right thing to do, but it's also the smart thing.
Dear Dr Bok
I was one of those who met you in your visit to Pakistan. In fact, I had the privilege of co-lecturing with you in one of the workshops on Ethics in Agha Khan University, Karachi.
I just wanted to add to what you have mentioned. We Pakistanis are also amazed at how the US could support a military dictator in Pakistan to get its own purposes fulfilled. Not only that, even though he has been thankfully ousted from power, the law is not being allowed to take its course in his case. Sadly, the common perception amongst Pakistanis is that it is again being done at the behest of the US administration so that the future dictators are not discouraged from cooperating with the US in defending its interests.
Clearly, the US has to choose between hypocrisy and sacrificing its interests from being safeguarded by criminal dictators in the future. It’s going to be an important policy decision in its image-building strategy across the world, especially the third-world: The US must condemn Pervez Musharraf’s criminal act of usurping power in 1999 and should clarify that it was not interfering in the process of him being taken to task by the Pakistani law.
Khalid Zaheer
Dean, Social Sciences
University of Central Punjab
I think the US image would go up significantly, if heads started to roll (and I mean the latter literally). Setting up a Nuremberg tribunal that would hold accountable any US political criminal still alive*, erecting a guillotine on the WH lawn** and thus dispose of those found sufficiently guilty independent of party affiliation*** may shock the TV audience but would improve the international standing of the US beyond recognition (even where the death penalty is not seen favorably). Worldwide broadcast of the proceedings mandatory!
*a Cadaver Synod may go too far but ‘in absentia’ should be considered
**heads to be put on the fence, faces turned towards the Oval Office as a grim reminder
***for those with lesser guilt: a mineshaft prison with food only for digging deeper.
“We will not have the future we want if government officials can break the law with impunity, safe in the knowledge that no future administration will be willing to take the political heat and investigate them.”
To emphasize yet again, because the point can’t be made strongly enough, as happened during the Reagan AdministrationM, and as justice was foiled by the (George H. W.) Bush Administration’s pardons, rehiring of known criminals, and the Congress’s refusal to open an impeachment investigation into either administration. This then led, of course, to the basis of the abuses of the George W. Bush administration, as well as the continued promotion of criminals convicted of actual crimes in the wake of the (limited) Iran-Contra investigations.
Others were not convicted of crimes, but served to circumvent laws nonetheless.
To name some names, specifically, Elliott Abrams, “pleaded guilty on two counts of unlawfully withholding information, pardoned….”
Otto Reich:
Result:
!!!
John Negroponte:
Etc. Result:
Negroponte went on to be United States Ambassador to Iraq, and the first Director of National Intelligence.
The only problem with going on with a comment like this is length; I could do 10,000 words on this topic, keeping it short. It’s a very long list of criminals or people who skirted the law in outrageous ways, following outrageous policies, who only grew in governmental power during the George W. Bush administration. John Poindexter shouldn’t be neglected as another example. Etc., etc., etc.
So we know what happens when Congress and/or subsequent Presidents decide It’s Bad For The Country To Look Back.
People who tolerate torture tolerate more torture. People who start covert wars start more wars. And so on.
History is very clear on this.
“…about the idea that in America, anyone really can grow up to be President….”
This also has its downside, he observed dryly. Franklin Pierce, Millard Fillmore, James Buchanan, Andrew Johnson, Warren G. Harding, Richard Nixon, Ronald Reagan, and George W. Bush, are names that leap to mind.
Most were not born to wealth or power. Most were not, in other words, G. W. Bush. Their backgrounds were generally of everyday stock, thus proving that common people can be just as horrible at being president as the rich and powerful.
And the list of good presidents includes people of both categories, as well.
I’m not disagreeing with the fact that the very fact is itself is a good, mind. Just noting that it also doesn’t always work out for the best.
“Clearly, the US has to choose between hypocrisy and sacrificing its interests from being safeguarded by criminal dictators in the future.”
Yes, the U.S. has had a long history of dreadful failure at this, unfortunately. Even long before the Cold War, or now, the War On Being Scary. The list of dictators we’ve supported, and failed to subsequently denounce, precisely because of lack of desire to undermine future alliances with future semi-puppets/cooperative dictators, is immensely long, and rather varied.
This is not to say that diplomacy can only take place with saints, or that compromises sometimes are necessary. But. Still. Very Long List, hardly all of which can be claimed to be necessary.
It’s the history of The Great Game of world power. And originally it’s why the U.S. disclaimed interest in empire.
Except then we made an exception in 1812, which didn’t work out. Then another for the Mexican-American War, which worked out splendidly for us. And then the corallaries to the Monroe Doctrine. And then the Spanish-American War, which is where it all really went to hell.
Woodrow Wilson, for all his extremely long list of flaws, at least attempted, however imperfectly — and he was immensely imperfect about it — attempted to restore some of our ideals to our foreign policy. And FDR did some of that, as well.
But then we changed to a state of permanent National Security Emergency, which you can date to either 1941, or 1947, or some time in between, but that’s when we really went over to The Dark Side in an overwhelming way that we haven’t barely begun to seriously reconsider.
It would require a vastly more radical president than Obama, and vastly more radical Democratic Congress, and vastly more radical American people, before we can seriously begin such major considerations of our place in the world, and the place of our ideals in foreign policy. I don’t expect to see it in less than decades, if ever.
The WaPo inevitably has their own version of the Times story, btw.
There’s also more of McCain’s quote:
Well, when a friend or acquaintance, or even a stranger, has done a wrong, and you know that person has done a wrong, do you respect them more if they simply deny it forever, or do you respect them less? Do you respect them more if they bring themselves to say they did wrong, and are attempting to make amends, or do you respect them less?
These are very simple questions, actually.
One way of looking at it is that the USA needs to go through an approximate version of steps 4, 8, 9, and 10, of a Twelve Step Program.
While we’re at it this might also be a good time to finally have an investigation into the mass graves at Dasht-e-Leili (more here and here), as well as to ask hard questions about what has been and is going on in Bagram. Covering up war crimes is a war crime in its own right.
“While we’re at it this might also be a good time to finally have an investigation into the mass graves at Dasht-e-Leili”
I gather you haven’t been following the news, since that’s specifically the main event that Holder has been mentioned over and over and over and over and over as troubled by as a possible war crime (rather than as a violation of intelligence law).
“I gather you haven’t been following the news”
No, that turns out not to be true, since your very own link points out: “The New York Times is reporting new evidence that the Bush Administration impeded at least three federal investigations into an alleged massacre of as many as 2,000 prisoners in Afghanistan. This major investigative piece, now available online and slated for the front page of the July 11 print edition….”
I’m rather puzzled as to why you seem to suggest it’s an original suggestion to suggest there should be a major investigation when it’s been widely reported that there’s a major investigation going on. You don’t get more mainstream in the U.S. than the lead story on page one of The New York Times. Did you actually read the article, or any of the other mainstream U.S. press articles on this, rather than the DKos version? I mean, this Kos story simply outright casually lies in the middle of its ranting, with claims such as “Now the Obama administration is saying it can’t investigate the killings….” That’s just as direct a lie as can be. Which doesn’t exactly make getting news from a source like that a great idea. (They do quote an AP story, but the AP has been an unreliable source at best since Al Gore’s campaign, and the infamous Nedra Pickler, for goodness sake.)
Aw, crap, sorry for not previewing. I’ve got to get some sleep now.
I gather you haven’t been following the news
I have, thank you very much. I believe it when I see it, so far the Obama administration has been reluctant and has issued ambiguous statements. And should it finally come to an investigation, I’ll be suspicious until I see the outcome. In fact, probably the only way to get an objective investigation would be to have the US join the ICC.
“In fact, probably the only way to get an objective investigation would be to have the US join the ICC.”
I don’t know that that would be the only way — in the past, there have been sound Congressional motivations when the motives and conditions were right — but I certainly think the US joining the ICC would be a good thing, and should have been done from the get-go.
“…so far the Obama administration has been reluctant and has issued ambiguous statements”
The Obama administration, like all administrations, and all large governments, is large, and contains multitudes.
Great post, Hilzoy: it’s only a pity you didn’t make it back when Obama first made clear that he would not support investigation/prosecution of war crimes committed under the Bush regime: that was November 22, 2008, if you recall.
Novakant: ” In fact, probably the only way to get an objective investigation would be to have the US join the ICC.”
Asbest I recall, the ICC does not claim jurisdiction over crimes committed by a nation *before* they joined the ICC. So joining the ICC, while potentially as much of a future safeguard to America’s victims as the US being a signatory to the Geneva Conventions has been, won’t help with the investigation or prosecution of crimes committed under Bush.
FWIW: No, I do not believe that Obama will ever stand up for the rule of law: I think it much more likely that he will block any independent investigation which may lead to prosecutions of the guilty, than that he will support such an investigation. The US has never in my lifetime been a country where the rule of law would be enforced on the President, and under Bush, the principle has been made clear that the President gives the orders and he and those who obey him are immune from prosecution. I do not for a minute think that Obama will do anything to change that: I hoped, but that hope went out of the window nearly eight months ago.
“the ICC does not claim jurisdiction over crimes committed by a nation *before* they joined the ICC.”
True that.
So joining the ICC, while potentially as much of a future safeguard to America’s victims as the US being a signatory to the Geneva Conventions has been, won’t help with the investigation or prosecution of crimes committed under Bush.
Since there are still people illegally detained in both Guantanamo and Bagram and since the Obama administration has retained some central legal concepts of the previous administration, the ICC could investigate that and thus put pressure on the US to come clear.
Great post, Hilzoy. I was in and out of Northern Africa at the time, and my general impression of Arab/African opinion was the same – no way Obama would be president. Heck, even in Western Europe a lot of people figured he would be assassinated before getting close.
Obama brings the US enormous political capital internationally; I think he’s probably destined to end up being more popular abroad than at home in the end.
The most simple solution would of course be to execute all executives immediately after their tenure ends. That would also erase the difference between term limits and appointments for life. 😉
Btw, that idea is not mine. I do not know who brought this or something similar up first but it seems to be old*. The standard is not execution though but exile for life with tight limits of what the exile-to-be could take with him.
*maybe the voluntary self-exile of Solon
byrningman, I (German) thought the same and still expect that Obama will not die a natural death (and that it will be the likes of Limbaugh, O’Reilly, “Whiner” Savage, Beck etc. that inspired the killer).
Gary gave us some details of a long history that seems to demonstrate that we have no experience in the US of how to handle matters like those under discussion here, namely how do we extract ourselves from these unacceptable behaviors and start anew. Since I haven’t spent nearly as much time in contemplation of this as others here, may I ask anyone of you advocating this self-flagellation if there is a good model (another nation in similar circumstances guilty of similar behaviors) that has redeemed itself through correcting those behaviors?
I’m not sure this is what you are thinking of, but the The Truth and Reconciliation Commission approach of South Africa seems to have made progress, though much is related to specific personalities and the particular history of SA.
namely how do we extract ourselves from these unacceptable behaviors and start anew.
I think we should seek harmonization across our legal system and simply disband prosecutor offices around the country. If we’re unwilling to investigate and punish crimes committed by powerful people, we might as well be consistent and stop investigating and punishing crimes by less powerful people.
“Which doesn’t exactly make getting news from a source like that a great idea. (They do quote an AP story, but the AP has been an unreliable source at best”
Gary, blaming the messenger is not a very smart approach. In this case the messengers are a DKos poster who has done some great work documenting torture and illegal detainment, a DKos poster who is the Chief Communications Officer of Physicians for Human Rights and a major news agency.
The NYT (which might be mainstream, but has had its own problems with reliability) article you quote says:
“It is not clear how — or if — the Obama administration will address the issue.”
And the only official word from Obama is that he will have members of his National Security Team “look into the matter”, whatever that means. And the Justice Department said:
“We have made no decisions on investigations or prosecutions, including whether to appoint a prosecutor to conduct further inquiry. (…) As the attorney general has made clear, it would be unfair to prosecute any official who acted in good faith based on legal guidance from the Justice Department.”
Meanwhile prisoners in Bagram are still held without charge or access to legal means in a blatant continuation of Bush’s despicable policy. Go figure.
may I ask anyone of you advocating this self-flagellation
It is not self-flagellation. It is law enforcement.
May I ask why you favor ignoring the commission of many serious, violent, crimes, including torture and murder?
The account here is informative but it reflects my own right here in the USA. There were people here, including loyal Dems, who simply did not think Obama could be elected POTUS. A black man, particularly who isn’t a Colin Powell (that is, with some sort of military background, top governmental role in the past, etc.)? Oh come on.
The same applies to torture. People here think nothing will be done. It’s like someone watching police abuse or some local corruption. Even the McCains speak about how horrible it is, but to truly investigate and maybe get some prosecutions would be too far. Concerns about bringing out bad laundry or the reputation of the institutions in question would be raised.
Gary Farber in detail shows the product of this approach. The fact that the convicted criminals that joined future administrations was not more of a national scandal only underlines the point. How useful it might have been if such people were impeached/convicted and not able to (dis)serve in the U.S. government again.
But, that was at the end of the day “off the table.”
We need to prosecute. I believe (hope) that any delay is because Holder and Obama want to make sure that as much can be done as possible during Obama’s administration, not excluding prosecution in order to further other goals, but timing it so that as much as possible can be achieved. Obviously, I’m giving them the benefit of the doubt, but I do think they’re trying to do the most good and not let the dominoes fall before they can do anything at all. I will be extremely disenchanted if I’m wrong about this.
The more news is reported about Cheney (not that any of it is really a surprise to anyone who’d been paying attention), the more urgent it is that the prosecutions begin. I’m just hoping that Obama and Holder are master chess players who are waiting for the correct placement of the pieces.
Actually, these “things” don’t “deserve” investigation.
They are required, by law, to be investigated.
Since I haven’t spent nearly as much time in contemplation of this as others here, may I ask anyone of you advocating this self-flagellation if there is a good model (another nation in similar circumstances guilty of similar behaviors) that has redeemed itself through correcting those behaviors?
I have said repeatedly that the US has much in common with Germany pre-WW1 as far as the mentality is concerned. So two lost world wars (or at least one lost fair and square*) with following benevolent occupation until a new geeneration grows up that despises the hypocrisy of their parents and grandparents could be a good start. We have lost the appetite for foreign adventures, militarism and the “we are the designated saviours of the world” mindset so thoroughly that our neighbours are starting to get suspicious again (for there must be a nefarious plot behind it).
The part about losing a war you started big time is meant seriously.
*including the regular levelling of any town and city with more than a few hundred inhabitants by air attack.
‘May I ask why you favor ignoring the commission of many serious, violent, crimes, including torture and murder?’
I don’t, necessarily. INAL, but I sense that investigation and prosecution of these crimes is complicated by factors like having been committed outside US jurisdiction, where US law may not be effective, against persons who don’t enjoy the legal protections of US residents, in a period of international conflict, some say war. If this were a product of domestic actions and events, it would be much less complicated, legally, it seems to me.
None of my points absolves those who are guilty of crimes, but I think these factors influence how a nation approaches dealing with the issue. Some will conclude that the better approach is to effect change that prevents recurrence and move on.
Some will conclude that the better approach is to effect change that prevents recurrence and move on.
Yes, if we just make them even more illegal than they already are, next time no one will do them again! And if they do, well, I’m sure we can make them more illegal still and maybe it’ll take finally. Hope will triumph over experience; anything else is self-flagellation!
Or less sarcastically, given that we’re talking about currently illegal acts, the best approach to preventing recurrence hardly seems likely to involve failing to enforce the laws forbidding them. Rather, “mov[ing] on” without doing so seems like a fine way to ensure they do recur.
get the public health option first, then go after the bastards. worse case scenario, Zxcainee dies from one of his afflictions before we can string him up by his balls
Good Ole Boy: but I sense that investigation and prosecution of these crimes is complicated by factors like having been committed outside US jurisdiction where US law may not be effective,
Well, of course you would prefer that the American criminals should be turned over to the jurisdiction of the country where they committed the crimes. Right? So, Americans who tortured prisoners in Afghanistan, to the Afghan government, to be tried and sentenced according to Afghan law; Americans who tortured prisoners in Iraq, to the Iraqi government, Americans who tortured prisoners in Guantanamo Bay, to the Cuban government… etc. If this is what you advocate, advocate it. If you want Americans committing crimes abroad simply to be immune from prosecution by any authority whatsoever, advocate that. But arguing that it’s “outside US jurisdiction” and US law “isn’t effective” on US citizens committing crimes with US government support and/or on US military bases is just … weaselly.
against persons who don’t enjoy the legal protections of US residents
But who do enjoy the legal protection of the Geneva Conventions, to which the US is a signatory.
in a period of international conflict, some say war.
…where the Geneva Conventions apply. Indeed, where some say the US Code of Military Justice applies, “ineffective” though you may think it outside the United States. Apparently US soldiers committing crimes on US military bases are outside the jurisdiction of the USCMJ when they’re not actually on US territory. Who knew?
If this were a product of domestic actions and events, it would be much less complicated, legally, it seems to me.
Yes, because it’s proved so much less complicated to bring Bush to book for warrantless wiretapping, an entirely domestic crime to which he actually confessed on the record.
Nonsense. The reason this is complicated legally is the same reason any such criminal trial is massively complicated: these crimes were apparently authorized by the head of state and by his administration.
There is no precedent for the prosecution of a sitting head of state by outside authorities: even Donald Rumsfeld escaped being arrested abroad for his crimes when he was still part of the Bush administration. There is some precedent for prosecuting a retired head of state by outside authorities: and there is at least some precedent for investigating the actions of a former government if there is grounds to believe they were criminal.
But what this is, internationally, is the final death of the principle that founded the UN: the idea that some idealistic nations professed, at the end of WWII, that the rule of law should apply to all nations. (Why, I do believe the US was once one of those idealistic nations itself…) Obviously that has been broken, over and over again in the past – the US is one of the worst offenders. But always before there was the pretense of honoring the rule of law – under Bush, and now under Obama, there is none. The US set out to break the Geneva Conventions and the UN Convention Against Torture and to wage aggressive war against Iraq, without any pretense of law, just naked power.
The notion that Obama will change that was a nice idea, but it’s not going to happen. I was surprised he won: I was disappointed, not surprised, to find that having won, he wasn’t about to tear up the embankments of power Bush had had constructed.
(Why, I do believe the US was once one of those idealistic nations itself…)
Now that’s starry-eyed optimism.
Anyone who believes in the rule of law, and that the laws apply to everybody, (as this Republican does) knows that we simply must determine which persons are responsible for the torture and other violations of the law which occurred, bring them before a court of law, and (if they are found guilty) punish them in accordance with the law. If that means that individuals who were high government officials end up in prison, so be it.
The fact that it will also have a good effect on America’s image in the world (Senator McCain tot he contrary notwithstanding) is simply a fringe benefit. It isn’t the reason we need to get a special prosecutor in place and start the process.
Anarch: Now that’s starry-eyed optimism.
Sorry: bleary-eyed sarcasm. Often hard to tell the difference on a blog comment.
“President Obama is facing new pressure to reverse himself and to ramp up investigations into the Bush-era security programs, despite the political risks.”
My person feeling on this is that Obama should stay the hell out of it.
The AG’s last name is HOLDER, not OBAMA. Obama should neither require, nor get in the way of, an investigation of Bush-era crimes.
“Leading Democrats on Sunday demanded investigations of how a highly classified counterterrorism program was kept secret from the Congressional leadership on the orders of Vice President Dick Cheney.”
If I’m not mistaken, Congress has an investigative staff of its own. What’s stopping them from moving forward?
To address GOB’s questions:
I agree with Bernard’s comment — it’s not “self-flagellation”, it’s appropriate enforcement of law.
Some crimes were committed offshore, and some were not. Some that were still fall under the jurisdiction of various US enforcement agencies.
The reason, or one reason, it happens over and over again is because nobody pays a significant price. There is no credible incentive to not do the crime.
It’s great to say “just fix the problem and move forward”. The problem, however, is not the law, but the criminality of the people involved.
“Fixing the problem” of individual human criminal behavior is called “prosecution”.
So we know what happens when Congress and/or subsequent Presidents decide It’s Bad For The Country To Look Back.
This is such an important point, Gary.
Look at all the damage that resulted from Ford’s pardoning Nixon and the decision to simply walk away from Watergate without first salting the earth that had produced it.
Interestingly, when Ford died a couple years ago, our Village media repeatedly cited Ford’s pardon (which at the time came at a serious political cost to Ford) as one of the highlights of his presidency.
Our political elites demand that we continually reaffirm their own basic goodness. Since that basic goodness is often mythical, looking backward becomes taboo.
So I feel like everyone is talking around one of the main questions here, out of politeness or dominant-paradigms or something. We are talking about prosecuting lots of politically very powerful people with very lax personal moral standards for War Crimes. These people presumably retain lots of connections with higher-level government bureaucrats and business leaders. Some of these bureaucrats and business leaders might themselves be worried about War Crimes charges, or at least worried that their professional reputations will be ruined if certain facts see light of day. These powerful people also have a lot of sway over a right-wing movement, which, while it is getting smaller, is also largely crazy and heavily armed, and getting crazier because a black man is president. Finally, the mainstream media bends over backwards to provide these people with ‘fair’ coverage.
I want to see these people in jail. But if Obama and Holder were to seriously move forward with prosecutions, what are the chances that these people would attempt to destabilize the government, and what could our government do to stop them? And is there any possibility that Obama is avoiding prosecutions because he is worried that the targets might be willing to resort to very extreme tactics in response?
Worst Idea Ever. Most of us who got past third grade learned that sometimes other people disagree with us. None of the comments here seem to know that. We are not talking about crimes for personal gain, like Watergate. We’re talking about people who made policy decisions in the process of trying to run a government. You disagree vehemently with their decisions. Fine. But start prosecuting people for policy decisions and you will destroy the United States of America.
Don’t you think that the Republicans could find things that they consider criminal to prosecute Democrats for when they next get into power? Just ask ’em, they’ll tell you right now what they think is (a) criminal and (b) happening in Congress today, no problem. Stealing trillions of dollars of taxpayer money and giving it to their political cronies… It wouldn’t be hard to have their own public “investigations” of supposed “crimes”, if they controlled the government again.
Look up Rubicon and see why Julius Caesar ended the Roman Republic. You dare not make people afraid for their safety if they lose an election. All this high-sounding nonsense about “rule of law” really means, We’re in power now and we can punish people who disagree with us.
GOB raises a good point. If we in the US go so far as to hold accountable before the law either a former Head of State or very powerful people who were close to him at the pinnacle of power, that will be an action which is historically almost unprecedented.
I’m racking my brains and I can’t think of a single example where this has been done by a powerful state without a change not just in the government but in the system of government, either as a result of military defeat and foreign occupation (i.e. regime change) or as a result of a dramatic if not outright revolutionary overthrow of the prior system of govt.
All the examples I can think of (e.g. post-Algeria France, post-Pinochet Chile, Argentina after the Falklands War, South Africa) either involve the prosecution of “little fish”, but not the folks at the very top, or followed in the wake of a distinct rupture in the system of govt. Frankly, the impeachment of Nixon prior to his resignation is the closest parallel that I can think of which doesn’t involve any of these factors, and thanks to Gerald Ford we never really finished off Watergate either.
So for us to go down this road here in the US would be setting down a marker for the limits of unacceptable conduct by the leaders of a powerful state in a way that is new, in somewhat the same way that the post-WW2 war crimes trials in Germany and Japan were new and created a new legal world. That would IMHO be a very good thing to do, but I expect it to be an extremely difficult thing to accomplish both legally and politically, despite the fact that in the longer view this is a development which fits comfortably into the larger scheme of American history (and especially the role the US played during the early-mid 20th Cen. in helping to create the current system of international law). We really are talking about creating a new relationship between the legal system and power politics (in which the latter is more strongly subordinated to the former) which has not previously existed to anything quite like this degree.
And to answer MikeR’s comment, if a full and fair legal process is followed, there can be no criminalization of policy differences in the absence of policies which were criminal. If a future administration of whichever color is worried about this, they have a very simple remedy: Don’t break the law. That is why we have a DOJ and and OLC, so the executive can draw on their opinions to stay out of troubled waters. From evidence in the public domain it appears that Bush, et. al. deliberately disabled those safety nets on the road they traveled. If future administrations meditate on the perils of doing so, that is all for the best.
I think the talk about Dostum emanating from the Obama people stems from the fact that Karzai is no longer considered an asset, which means the war criminals he chooses to associate with are not to be considered one of Our Bastards, and therefore good, but an associate of a guy who criticizes US air strikes when they kill Afghan civilians. It is therefore okay to start talking about his murders.
And MikeR, I’d be happy to prosecute Democratic war criminals. A friend of mine in the real world wants to pretend that Bush is the first American Presidential war criminal, because he’s afraid that if people realize that both parties have been guilty, then no prosecutions will take place. He has a point, but if that’s so, then I’d rather see a widespread recognition of the history Gary outlined (hopefully accompanied by a sense of shame about it) than a hypocritical focus on one particular administration.
As for stealing trillions, you’d have to spell that out for me, but I don’t think either political party is in a strong position to run against those who favor the rich and powerful.
We’re talking about people who made policy decisions in the process of trying to run a government.
[…]
Don’t you think that the Republicans could find things that they consider criminal to prosecute Democrats for when they next get into power?
[…]
It wouldn’t be hard to have their own public “investigations” of supposed “crimes”, if they controlled the government again.
[…]
All this high-sounding nonsense about “rule of law” really means, We’re in power now and we can punish people who disagree with us.
No. We’ve been calling for this for years. This isn’t about payback. This isn’t about “supposed ‘crimes'”. This isn’t about “finding things that [Democrats] consider criminal”. And this sure as Hell isn’t about “disagreement”. This is about enforcing the law as written. Not as interpreted, as written. We’re not talking about policy decisions decisions we didn’t like, we’re talking about policy decisions to commit criminal acts violating standing US law and treaties we’re a signatory to.
Rule of law is not another way of saying “we’re in power now and we can punish people who disagree with us”. That’d be rule of man. That’d be what we’ve been opposing for years, and what you’re arguing in favor of here. Thank you, no.
MikeR: Doesn’t your argument basically boil down to Nixon’s infamous claim that “when the President does it, that means it is not illegal”?
MikeR: Doesn’t your argument basically boil down to Nixon’s infamous claim that “when the President does it, that means it is not illegal”?
That or “torture should be legal.” Can’t tell without more information. Could be both of course.
Recall what I said about third graders. None of you is willing to acknowledge that honorable men can disagree. That’s what everything you’re saying translates to. Don’t break the law – in the opinion of the administration that follows you. As written – the way we read it. We don’t care that they had their own lawyers working out what to do; we all know better and so did they!
“I don’t think either political party is in a strong position to run against those who favor the rich and powerful.” Not what we’re talking about. The show trials are only against the party that’s out. You shoot the supposedly corrupt officials from the losing party; you don’t investigate your own. No one is going to suggest prosecuting Nancy Pelosi because she knew about waterboarding, or Hillary Clinton for voting for war in Iraq. They be doing the investigating, righteously good and angry.
And you haven’t answered my basic point. I always expected the US to outlive me. But if this kind of stuff is leaking out from the extremists into the real political arena, and adversaries are considered like criminals because I know all about it and they must be evil because no one could be that wrong – then I don’t know that it will. You cannot have free elections where people are afraid for their safety if they lose.
We’re in power now and we can punish people who disagree with us.
Ironically that’s exactly how the rest of the world (95% of humanity, mind) feels about the US: they can get away with anything because they’ve got the biggest guns. If you want to change this perception, you better start prosecuting. If you’re happy with this state of affairs, I can’t help you, but note that hegemony doesn’t last forever.
None of you is willing to acknowledge that honorable men can disagree.
Who are the “honorable” men you’re thinking of in the present context?
–TP
“These powerful people also have a lot of sway over a right-wing movement, which, while it is getting smaller, is also largely crazy and heavily armed, and getting crazier because a black man is president.”
My nomination for Worst.Idea.Ever is doing things or not doing things based on whether it’s going to piss off violent right-wing extremists.
Everything pisses off violent right-wing extremists. Being pissed off is their raison d’etre.
“Look up Rubicon and see why Julius Caesar ended the Roman Republic.”
We’re not Romans.
“All this high-sounding nonsense about “rule of law” really means, We’re in power now and we can punish people who disagree with us.”
No, all this talk about “rule of law” means we want agents of the government to comply with the law.
“If we in the US go so far as to hold accountable before the law either a former Head of State or very powerful people who were close to him at the pinnacle of power, that will be an action which is historically almost unprecedented.”
I rarely disagree with TLT’s historical points, but I think this is an overstatement.
The reason most of the folks in, frex, Gary’s list of criminals are walking around today as free men is the Presidential pardon. Many of them were, in fact, prosecuted, and a regrettably small number did time. Nixon was driven from office.
So it’s not like there is no precedent for pursuing criminal investigations of government officials. We just keep letting the President pardon them.
What would be unusual in the current case is that the sitting President doesn’t have any particular connection to either the crimes in question, or the criminals. So a pardon is that much less likely.
Recall what I said about third graders. None of you is willing to acknowledge that honorable men can disagree. That’s what everything you’re saying translates to. Don’t break the law – in the opinion of the administration that follows you. As written – the way we read it. We don’t care that they had their own lawyers working out what to do; we all know better and so did they!
Are you making false statements knowingly, or are you just ignorant of the issue? Because the facts aren’t really in doubt. The Bush administration broke treaties and the law. No doubt they would argue that they thought it was necessary, but that’s unpersuasive in the criminal trial of a private citizen and it should be unpersuasive in this situation too. Why do you support the idea that the law doesn’t apply to the president?
“Recall what I said about third graders.”
Actually I’m kind of ignoring it, because it’s kind of patronizing and rude.
“You cannot have free elections where people are afraid for their safety if they lose.”
Look, if you don’t want to do time, you don’t break the law.
You appear to believe that the alleged crimes in question are really just matters of political opinion. IMO that dog really just does not hunt.
It appears that significant laws were broken. The burden is on prosecutors to prove that, and nobody should be punished for anything unless that happens. But there’s more than enough smoke for reasonable people to believe there’s a fire.
No one is going to suggest prosecuting Nancy Pelosi because she knew about waterboarding, or Hillary Clinton for voting for war in Iraq.
And no one is suggesting prosecuting GOP members of the House and Senate because they either knew about waterboarding or voted for the war in Iraq. Voting for a war is not a crime. Neither is knowing about waterboarding. Torture, however, is.
My nomination for Worst.Idea.Ever is doing things or not doing things based on whether it’s going to piss off violent right-wing extremists.
I think I was suggesting that doing something might motivate a concerted effort to overthrow, terrorize, or otherwise destabilize the government. Pissing people off isn’t really the worry. If you still think it’s a bad idea to take that possibility into account, fine. But I’d like to know why.
“No one is going to suggest prosecuting Nancy Pelosi because she knew about waterboarding, or Hillary Clinton for voting for war in Iraq.–MikeR
And no one is suggesting prosecuting GOP members of the House and Senate because they either knew about waterboarding or voted for the war in Iraq. Voting for a war is not a crime. Neither is knowing about waterboarding. Torture, however, is.–Eric Martin
Well, let me be the first to suggest it then. Though I’m really not–a fair number of people probably think that voting for an unjust war is a war crime more serious than supporting torture. There could be extenuating circumstances if someone was misled, but if so, a trial should bring those out.
Not that anything like that will happen. So I’ll grant the point that no American is going to be tried for starting an unjust war–we would need to lose such a war, as hartmut or someone upthread said for that to happen, or alternatively, there could be a near-revolutionary outbreak of honesty in American public life, which is a notion too ridiculous to entertain. But we can still go after the lesser war crimes, like torture.
MikeR could be mistaken for someone making a principled argument that there are people in both political parties who are war criminals or criminals of some sort, when he really wants to make everyone agree that nobody is a war criminal because we’re all just good Americans here having policy differences that shouldn’t be criminalized. Because otherwise we end up in civil war or political chaos. That last point is, I think, partly true, but I’m unwilling to make myself believe something that is false (that high-ranking Americans are not war criminals) because it could lead to the dissolution of politics as we know it if acted upon.
“Well, let me be the first to suggest it then. Though I’m really not-”
Really not the first to suggest it, I mean. I would have corrected that above, but the computer wouldn’t let me do it on preview, for some reason.
“Take into account” is not the same thing as “decide not to prosecute criminal behavior because you’re afraid violent people might act out”.
If someone wants to undertake a concerted effort to overthrow the government or terrorize the population, I suggest they think twice. It won’t be quite that easy, no matter how many guns they have stashed in the garage.
Those here who are adamant favoring prosecuting some high officials for certain crimes seem very sure of what crimes were committed by what persons, when, and against whom and that there must be sufficient evidence and unimpeachable eye witness testimony to achieve convictions. Again, I don’t spend my time hanging with legal types ( thank the Lord) but these seem like close to ideal conditions to motivate ambitious prosecutors to get it on. What’s up?
“I rarely disagree with TLT’s historical points, but I think this is an overstatement.
The reason most of the folks in, frex, Gary’s list of criminals are walking around today as free men is the Presidential pardon. Many of them were, in fact, prosecuted, and a regrettably small number did time. Nixon was driven from office.”
Thanks for the compliment. To clarify, what I really have in mind is that it would be unprecedented to prosecute for non-venal crimes the 3-4 or so people at the very top. So in this case that would be Bush, Cheney and Rumsfeld, and perhaps one or two others. If you can conjure up an example of a POTUS, VPOTUS, SecDef or SecState in the dock (or the equivalent officials in other states, like the British Prime Minister, etc.), please educate me. Aside from the Nixon administration I can’t think of any. Another example which springs to mind is perhaps the prosecution of former CPSU officials undertaken in Yeltsin’s Russia after the breakup of the Soviet Union, but again IIRC that was mostly going after the “little fish” and arguably after what I termed a rupture in the system of government.
Nothing in Iran-Contra rose to that level, and Watergate is the only other US domestic example that I can think of, tragically cut short of establishing a precedent which might have served us better over the last decade. And not only in terms of who was put on trial – remember the role that Rehnquist played during the Nixon administration, which didn’t stop him from rising to the level of SCOTUS Chief Justice. If you want to balance the ideological equation so we aren’t just picking on Republicans here, you could throw in the failure of the Senate to convict Bill Clinton and remove him from office as another example of past precedent falling short.
So it seems to me that the mid-level folks sometimes pay a price, but in the past legal accountability always stops short of the top layer of power, at least for states which are sufficiently secure and powerful to fend off pressure from outside.
Of course part of the reason for a lack of past examples is that most heads of state have the good sense to either avoid flagrant criminality or to do a better job of delegating and disguising it than Bush did, or do so in pursuit of interpretations of the national interest which remain broadly accepted after their tenure in office is over. What Bush and Cheney did was very unusual – they broke laws, they were obvious about it, and they did it while screwing the pooch with regard to our national interests. That combination of malevolence and stupidity has occurred many times in the past but it normally ends with a rupture in the system of govt., not a peaceful transfer of power to a successor who is faced with the issue of whether or not to prosecute while operating within the same framework of law and govt which was abused and misused by the malefactors in question.
TLT,
And if the acts committed were egregious as described, why were Bush or Cheney or both not impeached or prosecuted while in office? Agnew was investigated and would have been prosecuted while in office if he had not pled out and resigned as part of his plea agreement, so it’s not as if it cannot be pursued if the case is strong.
goodoleboy,
We prosecuted Japanese officials for waterboarding detainees during WW II. We have incontrovertible evidence that Bush administration officials authorized, and then ordered, the waterboarding of prisoners.
The US is subject to several laws prohibiting torture – not just of US citizens, but of any citizens. Not just on US soil, but anywhere. Torture statutes and treaties do not have carve outs. They are pretty unequivocal.
Waterboarding is torture under US law – hence the prior prosecutions and convictions for the use of waterboarding.
Pretty tight legal case. As to why prosecutors haven’t brought the case, there are several reasons but they’re mostly political, not legal.
“Take into account” is not the same thing as “decide not to prosecute criminal behavior because you’re afraid violent people might act out”.
Okay. So I think that if the level of violence such people could bring is serious enough, prosecuting the criminal behavior is a bad idea, because it involves more harm than good. Why am I wrong?
If someone wants to undertake a concerted effort to overthrow the government or terrorize the population, I suggest they think twice. It won’t be quite that easy, no matter how many guns they have stashed in the garage.
Would you please read my initial post. I am not worried about one or two idiots with guns. I am worried about people like Cheney. We are talking about prosecuting people with lots of contacts both within the government, including intelligence and the military, with quite well armed paramilitary groups, like Blackwater, and who can probably encourage various right-wing shills to amp up the volume enough to incite the guns-in-the-garage crowd.
Probably substantial portions of the military and the intelligence services would themselves be looking at jail time if we started getting serious about prosecution. We know that the Bush administration stacked intelligence agencies and the justice department with ideological hacks. There’s ample evidence that a substantial portion of our military is made up of fundamentalist Christians. (Read the Harper’s article Jesus Killed Mohammed.) How many of these people do you think would turn a blind eye to right-wing terrorism? How many would perform their jobs inefficiently if asked to deal with rightwing groups?
If these people were threatened with jail time, would they be able to terrorize the population effectively and cause havoc with the government? I don’t really know. But I’m unclear why anyone would be so sanguine about the possibility.
This points to the major complication in prosecuting War Criminals. They tend to be really powerful and capable of getting lots and lots of people to act out violently. That’s how they got to commit *War* Crimes rather than the ordinary sort. I don’t understand why that isn’t a factor in deciding how to deal with them, and I’m even more confused why people refuse to discuss this in the context of the current debate.
As to why prosecutors haven’t brought the case, there are several reasons but they’re mostly political, not legal.
Maybe they were too busy wondering why some other prosecutor hadn’t already done it.
“but these seem like close to ideal conditions to motivate ambitious prosecutors to get it on. What’s up?”
Is that supposed to be a subtle way of arguing that there are no Bush war crimes worthy of prosecution? Or are you really curious?
If you’re really curious, then let me join you in asking the question. I don’t know enough about the law to be able to say which prosecutors would have the right to take this up–I imagine that if Eric Holder hasn’t done anything about it, then lesser prosecutors aren’t going to jump in, but whether they could if they wanted to I don’t know.
…why were Bush or Cheney or both not impeached or prosecuted while in office?
Because the Democratic politicians decided to sit on their hands, and wait until the elections to take power. In a craven fashion IMHO.
In addition, the corporate/Washington-insiderish media was and is very much against any such impeachment or prosecution. They would have made the Dems look very bad for pressing the case.
But your logic is circular, and is begging the question. The lack of prosecution is not proof that no crimes were committed.
What’s up?
Well, it’s not much, but certain top Bush administration officials should better refrain from spending their next holiday in Spain.
“So it seems to me that the mid-level folks sometimes pay a price, but in the past legal accountability always stops short of the top layer of power”
With the significant exception of Nixon, I don’t disagree. And Nixon was neither prosecuted nor impeached, he was simply driven from office.
To address your point here as well as GOB’s, what I would like to see is a criminal investigation of the acts that are most obviously criminal — surveillance programs in violation of FISA, torture beyond the boundaries allowed even by the OLC memos — and for that investigation to proceed to its legal and logical end, whatever that might be.
I think it’s bloody unlikely that any White House principals — Bush, Cheney, Rice, Rumsfeld — will ever be charged with criminal activity. It think it’s slightly less unlikely that folks at the next level will be.
I’d especially like civilian contractors who committed torture or other acts of brutality beyond the bounds of the OLC guidance to be prosecuted. I’d like the psychiatrists and medical doctors who assisted in the torture regime to be prosecuted and/or lose their licenses to practice.
I’d like Gonzales, Yoo, Bybee, and Addington to lose their licenses to practice law. I’d like Yoo to lose his editorial post and to lose his position as a law professor. I’d like Jay Bybee to be impeached from his judgeship.
I’d like to see any of the mid-level guys for whom there is evidence of criminality or simply malfeasance to receive whatever punishment they have coming to them. I’m talking about Fleischer, Gonzales, Feith, guys like that.
If there is a way to prohibit any of these guys from ever working in any agency of government again, not to exclude mail carrier, I’d like to see that.
That’s what I want.
I’m not interested in seeing CIA or military guys who participated in torture within the OLC guidance to be prosecuted. IMO it would be asking a lot to require them to be able to evaluate legal guidance they get from their own leadership. Just my opinion.
Look, people held as prisoner were brutally beaten to death. People were snatched from the street and shipped around the world to be viciously tortured. And a war was started through a deliberate campaign of misinformation.
Those are not trivial crimes.
@russell 3:50pm
That puts it right, IMHO. That is about the maximum that I expect to be possible without a major redrawing of the relationship between law and power in this country. I’d love to see something more happen because IMHO much of our best history consists of the rare moments when that balance was shifted, but I don’t sense that today we have either the quality of political leadership or more broadly a population with the character or fortitude to do that. Indeed I will be very much surprised if we are able to accomplish even as much as what you listed. A replay of Iran-Contra minus the pardons (at least until the next GOP President is seated) seems more likely to me.
I’m not interested in seeing CIA or military guys who participated in torture within the OLC guidance to be prosecuted. IMO it would be asking a lot to require them to be able to evaluate legal guidance they get from their own leadership. Just my opinion.
I still don’t understand this objection. Everyone I’ve seen accepts that a foreign government waterboarding an American soldier constitutes torture. There is remarkable consensus on this point. The fact that soldiers were ordered to torture people doesn’t change the fact that doing so was wrong. The fact that soldiers were told “no really this is like totally legal cross my heart and hope to die” doesn’t change the fact that it was wrong.
I mean, if you think that we can’t hold soldiers responsible for their actions because someone promised them that everything was legally kosher, where do you draw the line? If soldiers are ordered to rape children, should we hold them blameless just because they were promised that the lawyers OK’d child rape? If not, what is it that distinguishes child rape from waterboarding?
russell,
I stand corrected. Prosecutions on that scale are something this country could much more likely pull off.
They’d probably have some deterent value as well, if only because the administration-level criminals would have a harder time finding mid-level people willing to be accomplices.
Unsurprisingly, I agree with Turbulence on that point. Probably because I’ve heard the “I was only following orders” defense too often.
First, I apologize if I said something condescending. I was trying to make a point, but I guess I didn’t make it nicely.
“Because the facts aren’t really in doubt.” Not to you, obviously. That’s why you linked to Andrew Sullivan. Presumably you don’t read Powerline or such, or you would have linked to it. Next time you want to claim that something isn’t in doubt, bring a few right-wingers who agree with you. This is just the kind of thing I’m talking about. You are only seeing your point of view, and everyone who seems to be disagreeing must therefore be lying.
“The burden is on prosecutors to prove that, and nobody should be punished for anything unless that happens.”
Gosh, what a relief. If I’m innocent, I have nothing to worry about! I can be tried by a committee of political opponents eager to smear my name, then by a jury and prosecutor who hate me, and the legal system will surely exonerate me if I’m innocent, at least about half the time. And I can pay the legal bills and try to fix the wikipedia entry written by all the people who knew I was guilty anyhow. Why was I thinking that this is a bad thing?
“that this would piss off right-wing extremists” – not saying that. I’m saying that there would be a very understandable fear by anyone in office, left or right, that losing the election could cost them their liberty, because there are people out there like you-all who think it’s okay to prosecute you because they are sure that you’re wrong, and everyone they talk to thinks so too.
And a lot of people would feel that the “rule of law” would require them to oppose the legal authorities. For instance, I imagine that a very large fraction of Americans think that waterboarding KSM was an okay thing to do or at least not criminal.
http://www.audacityofhypocrisy.com/2009/04/28/poll-55-of-americans-support-waterboarding-al-qaeda-suspectsgallup/
Not saying they’re right or wrong, but it’s important to take that into account. And even it were a fairly small fraction of Americans, but still roughly mainstream, it would be really dangerous to start prosecuting government officials just cause you’re quite sure it’s wrong and illegal. Even if you’re right.
I’d like to see everyone prosecuted who did anything to further the crimes of the Bush administration. But until at least the main perpetrators are convicted, we Americans will all bear the stigma. I don’t want it.
If soldiers are ordered to rape children, should we hold them blameless just because they were promised that the lawyers OK’d child rape? If not, what is it that distinguishes child rape from waterboarding?
Probably the idea that unless the soldier in question is psychotic he should probably realize that his commanding officer is lying to him when he says that child rape is okay.
While you would think this goes for waterboarding as well, apparently 1 out of three Americans, or maybe two out of five, would not realize that their superiors were lying if they were told that waterboarding is okay.
People are stupid and tend to trust authorities.
Also, keeping the prosecutions focused would make it less likely that the Republicans could make political hay of them. This should be a real worry, since a Republican President would be, as has been mentioned, more likely to pardon the people who gave the orders. And securing their convictions should be more important.
“And if the acts committed were egregious as described, why were Bush or Cheney or both not impeached or prosecuted while in office??”
GOB,
Eric at 3:47pm said most of what I was going to respond with. In some cases too, crucial evidence was concealed or destroyed (the CIA interogation tapes, White House emails). I expect that some of the charges eventually prosecuted will be for obstruction of justice rather than the primary crimes.
Also note that the publically documented basis for us knowing what was going on under Bush and how far up the chain of command it went has improved over the last 12-18 months or so. Impeachment before that point was on a thinner evidentiary basis than it is today, and then once the 2008 campaign began politics in this country became fixated on the issue of who would succeed Bush electorally rather than making a case for removing him by impeachment. Impeachment is not a purely legal process as it also carries the additional baggage of involving a struggle between different branches of the US Govt., which means that a certain amount of political willpower and attention span is required to carry it out, which became less easy to justify as the end of Bush’s term in office approached.
IMHO a special prosecutor appointed by the AG would be a better way to handle the investigatory needs in this case, not to mention that to adequately investigate and document what happened will take years. I don’t expect the actions taken during the Bush years to be sorted out in a short span of time.
“Because the facts aren’t really in doubt.” Not to you, obviously. That’s why you linked to Andrew Sullivan. Presumably you don’t read Powerline or such, or you would have linked to it. Next time you want to claim that something isn’t in doubt, bring a few right-wingers who agree with you.
If you disagree with the claims presented at that link, please explain why. Otherwise you’re just muddying the waters.
While you would think this goes for waterboarding as well,
You are correct sir!
apparently 1 out of three Americans, or maybe two out of five, would not realize that their superiors were lying if they were told that waterboarding is okay.
Wouldn’t most soldiers know that “torture” is wrong no matter who orders it? And wouldn’t most soldiers know that waterboarding a captured American soldier was torture? Wouldn’t most soldiers know that torture is not OK just because the torturers are American? And do we really want a military full of people that don’t believe those three things?
My point here is that it is quite possible that if you gave a poll, 30-40% of American soldiers would say waterboarding people is clearly OK. But I’d expect that most of them would have some serious reservations after they drowned their first few victims.
People are stupid and tend to trust authorities.
Well, people are stupid, but their willingness to trust authorities depends a lot on whether we prosecute them for torturing people. I think most human beings would have a moment of real hesitation before drowning someone or chaining them to a wall exposed to freezing temperatures for the night. People who don’t hesitate at all have no business in an intelligence service or in the military. But those that do can easily assume that “it is OK because I have orders and as long as I’m following orders
being a good little German, I’ll be OK”.would be really dangerous to start prosecuting government officials just cause you’re quite sure it’s wrong and illegal. Even if you’re right.
“Even if you’re right”? So it would be dangerous to prosecute government officials that broke the law?
Next time you want to claim that something isn’t in doubt, bring a few right-wingers who agree with you.
Andrew Sullivan is a right winger! There’s also Bruce Fein. And Daniel Larison. To name but a few.
But let me ask you this: If we prosecuted and convicted Japanese officials/military personnel for waterboarding, then why would we doubt whether or not it is legal? Just because Powerline says so?
Gosh, what a relief. If I’m innocent, I have nothing to worry about! I can be tried by a committee of political opponents eager to smear my name, then by a jury and prosecutor who hate me, and the legal system will surely exonerate me if I’m innocent, at least about half the time. And I can pay the legal bills and try to fix the wikipedia entry written by all the people who knew I was guilty anyhow. Why was I thinking that this is a bad thing?
What on earth does this mean? Are you suggesting that we don’t prosecute criminals because the justice system is onerous and tilted against the defendant? Wouldn’t that lead to anarchy?
Or are you suggesting reforming the justice system to make it more fair to the accused?
But please don’t destroy the goodwill and comity that has developed between Obama and the Republicans. The goodwill that has manifested itself in Republican attempts to destroy and frustrate Obama from Day One.
it would be really dangerous to start prosecuting government officials just cause you’re quite sure it’s wrong and illegal.
It might well be more dangerous not to.
Your argument seems to boil down to,
“We have to let people get away with doing terrible things, because otherwise they will do terrible things.”
“Gosh, what a relief. If I’m innocent, I have nothing to worry about! I can be tried by a committee of political opponents eager to smear my name, then by a jury and prosecutor who hate me, and the legal system will surely exonerate me if I’m innocent, at least about half the time. And I can pay the legal bills and try to fix the wikipedia entry written by all the people who knew I was guilty anyhow. Why was I thinking that this is a bad thing?”
What makes you think that any high level former officials who are prosecuted won’t have the best legal defense team money can buy and will be able to make use of all the features of our legal system designed to prevent things like stacking a jury with people who hate you (unanimously? really? doesn’t that contradict your claim that a near majority of Americans approve of what was done?).
Do you really have that little in the way of confidence in our system of criminal justice? If so, I expect you’ve spent years working to reform our court system so that the ordinary folks who are crushed between the millstones have a better chance. Or is it only the powerful who have to worry about getting a fair shake in our courts?
As for the low level grunts, there I can see where you have a valid concern – but from the standpoint of Bush and Cheney that is a feature not a bug. If the little people take a fall for following their orders, not a problem.
“If you disagree with the claims presented at that link, please explain why. Otherwise you’re just muddying the waters.” “Andrew Sullivan is a right winger!”
You persist in missing the point. I am not discussing the issue of waterboarding. I am discussing: You are only looking at people who agree with you. That’s why I suggested powerline, because they don’t. You can’t really have a clue on a subject where you only read one side of an issue. Plus, of course, to broaden your horizons, you read your side’s description of the other side’s misrepresentations!
Look, I’ll make a deal with you. You read powerline every day, the whole thing, checking out the links to verify. I’ll read a blog of your choice (maybe this one counts?)
Otherwise, I think I can rest my case here. All your answers are: Yes, but we’re right. You remain blissfully unaware that the other side feels exactly the same way. They can’t really, of course – ’cause we’re right.
Well, people are stupid, but their willingness to trust authorities depends a lot on whether we prosecute them for torturing people.
Who are the “authorities” that people “trust”? President Obama seems like an “authority” to me. Senator Whitehouse is as much of an “authority” as Senator Cornyn. Why was AG Gonzales an “authority” but AG Holder not?
Maybe people respect “authority” more than they should, but only when “authority” asserts itself. If we allow to go unchallenged the notion that “authority” means “chest thumping Republicans” and not, for instance, the Democrats people elected to run both the executive and the congress, we do “the people” a disservice.
–TP
You can’t really have a clue on a subject where you only read one side of an issue.
But I read the other side of the issue all the time! I’m a lawyer, that’s what we’re trained to do. I read Powerline. I read The Corner. And I read other conservatives like Larison. Used to read QandO more frequently. Greg Djerejian when he finds the time to blog. Volokh. Douthat. Reihan. Pejman. Ed Morrissey. Rick Moran. McCardle.
I find many of their arguments on this subject unconvincing, although some of the aforementioned actually think torture is wrong, that Bush administration officials ordered torture and that prosecutions should follow. Not all, but some.
What would help me more, though, is not reading Powerline more religiously for a week or month. What would help would be you telling me what you think the strongest arguments are that these sites/pundits put forward. Then we can discuss those ideas.
All your answers are: Yes, but we’re right.
Actually, almost everyone that responded to you on this site responded to the substance of the critique, or tried to elicit more substance from you so that they could move the conversation forward. No one, to my knowledge, responded by saying, without evidence or justification, “but we’re right” or anything to that effect.
Quite the opposite.
“Frankly, the impeachment of Nixon prior to his resignation is the closest parallel that I can think of which doesn’t involve any of these factors….”
Uh, that never happened. Nixon was about to be impeached, in the very near future, as a surety, but he resigned before it got to that point. And, as everyone has noted, was then pardoned unconditionally by his successor.
One of the reasons I’ve never been able to forgive Gerald Ford for that act is that the U.S. pardon power includes the power to set conditional partdons. If Nixon somehow “had” to be pardoned, that’s how Ford could have done it: by requiring that Nixon testify under oath about everything that he knew of that was done, even while he himself was spared prosecution, that he couldn’t fight for years to try to keep his papers private, but had to turn them all over, and so on. Ford instead just said “go on your merry way, and have fun, Dick!”
If not for Congress passing the Presidential Records Act of 1974, we’d still know squat about Nixon’s crimes. And the legal battles still went on for umpty years.
Stanley Kutler is one of the best of the Nixon historians (this was written in 2003):
And the Nixon Library is run by sycophantic liars.
Minimally?
“Otherwise, I think I can rest my case here. All your answers are: Yes, but we’re right. You remain blissfully unaware that the other side feels exactly the same way. They can’t really, of course – ’cause we’re right.”
So let me get this straight – you are making an argument about how we should or should not administrate our system of justice, and determine what facts rise to the level of possible indictments, prosecutions and convictions, because there are some folks out there who feel differently. Not a nation of laws, nor even a nation of men, but a nation of feelings.
Geeeesh, and I thought the Left was supposed to be the side who got all squishy in the head about paying too much respect to other people’s subjective experiences and not enough to hard-headed objective reality! Talk about a role reversal!
I am not discussing the issue of waterboarding.
This is not true. To quote you in your 1:19 p.m. comment: “We’re talking about people who made policy decisions in the process of trying to run a government. You disagree vehemently with their decisions. Fine. But start prosecuting people for policy decisions and you will destroy the United States of America.”
The policy decisions you referred to are whether to torture prisoners, the most famous method of which was waterboarding. I take it you mean that you don’t want to talk about waterboarding? I can’t blame you for that, but that makes it hard to discuss politics in general these days.
Look, I’ll make a deal with you. You read powerline every day, the whole thing, checking out the links to verify. I’ll read a blog of your choice (maybe this one counts?)
This looks like a lose-lose situation to me.
“We are not talking about crimes for personal gain, like Watergate.”
Nixon didn’t engage the vast multitude of governmental abuses subsumed under the name of “Watergate” for personal gain in the sense of obtaining riches. He did what he did because he felt that only he was smart enough to run the country correctly, and that his enemies were the country’s enemies, and that he was doing what was right to protect him and the state, which was him. According to your logic, he shouldn’t have been investigated, nor impeachment attempted, nor prosecution of anyone involved.
Loads of crimes aren’t crimes because they’re for personal gain. This doesn’t stop them from being crimes. Torture is not done to become rich; it’s still a crime. If I shoot a politician because I disagree with their policy, my murder of them suddenly doesn’t become a non-crime because it was over a “policy disagreement.” It’s a crime because it’s a crime.
The laws should be enforced because they’re the law. Period. (If they’re bad laws, they should be changed, but that’s another discussion.)
“All this high-sounding nonsense about “rule of law” really means, We’re in power now and we can punish people who disagree with us.”
Nonsense. The Laffer Curve was terrible economics, but nobody advocates criminal prosecution of those who engaged in it, or in any other policy they disagreed with. Reagan’s folks wanted to support the contras in Nicaragua. I disagreed with the policy, but there was nothing criminal about advocacy. It wasn’t until they violated the law prohibiting what they actually did, and violated the laws about lying to Congress that they crossed the line.
Deciding when a law has or hasn’t been violated is a professional decision that should be made by professionals. As noted above (as I’ve noted myself in the past several times, including here), the President shouldn’t in any way be involved in making such decisions; that would be involving politics; it should be left up to people as unpolitical as can be found who are hired to be professionals at the Department of Justice.
Actually, almost everyone that responded to you on this site responded to the substance of the critique, or tried to elicit more substance from you so that they could move the conversation forward. No one, to my knowledge, responded by saying, without evidence or justification, “but we’re right” or anything to that effect.
Posted by: Eric Martin | July 13, 2009 at 05:30 PM
To be fair, I’ve been pretty snippy. I haven’t said what he’s accused somebody or other here of believing (who, exactly? Name the commenter, please), and I don’t see anything I feel I should apologize for, but I hope my uncivil example won’t invalidate your attempt at reasoned debate with a Powerline fan who thinks torture is just another policy disagreement over which reasonable people can see both sides.
Wouldn’t most soldiers know that “torture” is wrong no matter who orders it?
Why would they know that? Who taught them?
My point here is that it is quite possible that if you gave a poll, 30-40% of American soldiers would say waterboarding people is clearly OK. But I’d expect that most of them would have some serious reservations after they drowned their first few victims.
No. People are generally stupider than that. See our air-strikes in Iraq, Afghanistan, and Pakistan, for instance.
I think most human beings would have a moment of real hesitation before drowning someone or chaining them to a wall exposed to freezing temperatures for the night.
Yeah. A lot of these guys probably had a moment’s hesitation. Then they did it anyway. Read about the Milgram experiments.
But those that do can easily assume that “it is OK because I have orders and as long as I’m following orders being a good little German, I’ll be OK”.
Maybe a few of them are thinking something like that. Again, I think most people aren’t that reflective. Probably their superior officer tells them there are some new rules. They read the rules. The rules are on official looking paper and have lots of legal jargon. The people think, “Okay, that’s what I’m supposed to do.”
All your answers are: Yes, but we’re right. You remain blissfully unaware that the other side feels exactly the same way. They can’t really, of course – ’cause we’re right.
You know, waterboarding either is, or is not, torture; and torture either is, or is not, illegal under US law. This isn’t something where some folks feel one way about it, and some feel the other, and the truth lies somewhere in the middle, like, say, minimum wage laws or Title IX or something. Some issues really are black-and-white.
@Eric:
Actually, almost everyone that responded to you on this site responded to the substance of the critique, or tried to elicit more substance from you so that they could move the conversation forward. No one, to my knowledge, responded by saying, without evidence or justification, “but we’re right” or anything to that effect.
In his defense, I for one was pretty exasperated and dismissive, and left more of my justification unstated than I should have (e.g., that the other side of the “policy disagreement” was ignoring conflicting legal precedents).
DBake, I think you’re quite right that an awful lot of people are stuck somewhere on level 1 or 2 of the Kohlberg model. But the question remains: if we don’t hold them accountable, how are universal ethical principles supposed to be implemented at all?
“What on earth does this mean? Are you suggesting that we don’t prosecute criminals because the justice system is onerous and tilted against the defendant? Wouldn’t that lead to anarchy?”
No, I’m suggesting that political witch hunts by partisans aren’t the same thing as the criminal justice system. For the eleventieth time, decisions made by government officials in good faith should not be considered crimes, even if you disagree with them. Good faith is to be judged not by partisans, even if every single blog they read agrees with them, but by reasonable objective standards like: Does a decent fraction of Americans feel this way too? If so, presumably the officials should be assumed to have done this because they thought it was the right thing to do, whatever you think of them.
Are you actually suggesting that you think that being tried in the justice system is not a hardship, and therefore we shouldn’t mind if our opponents are put through it because we’re sure they deserve it? After all, we wouldn’t mind. Or we would, but there’s no way that any reasonable person like us could think we deserve it.
Ben Alpers: “Our political elites demand that we continually reaffirm their own basic goodness. Since that basic goodness is often mythical, looking backward becomes taboo.”
This is an extremely acute point, by the way. It’s Broderism 101. It’s “he trashed the place,” “the place” being close to “Our Thing,” the Cosa Nostra, than anything else.
“Our sort of people.” What some like to call “the Village” (a usage I’ve yet to become fond of because it’s so unobvious what it means to those not given tutelage in it; hell, it took me months to figure out what the heck people were talking about when they started using it; what’s wrong with “the political Establishment”?).
“Good faith is to be judged not by partisans, even if every single blog they read agrees with them, but by reasonable objective standards like: Does a decent fraction of Americans feel this way too?”
De-lurking out of complete disgust.
So, if a poll indicates torture, murder, or other crimes are ok, it’s best not to investigate or prosecute?
I’m now convinced – it is time for the DOJ to get to the bottom of this, before our collective will to live by the rule of law goes completely down the drain.
Back to depressed anonymity
“No one is going to suggest prosecuting Nancy Pelosi because she knew about waterboarding, or Hillary Clinton for voting for war in Iraq.”
What laws do you suggest they violated?
Pardon me while I add some footnotes:
“No, I’m suggesting that political witch hunts by partisans”
[Using a standard of what is to be considered ‘partisans’ defined solely and exclusively by right wing propagandists who have been proved wrong on a number of important points (*cough* Iraq WMDs *cough* self-regulating markets *cough*) over the last decade and have yet to admit anything when their claims were given the lie by measurable and verifiable facts]
“aren’t the same thing as the criminal justice system.”
[Which would be the precise reason why folks here are advocating using the *ahem* criminal justice system as a vehicle for investigations and (if supported by sufficient evidence) indictments and prosecutions, with all of the protections and safeguards it provides, including the presumption of innocence. Nice strawman, though]
“For the eleventieth time, decisions made by government officials in good faith”
[ditto for the definition of “good faith” which is stated as a premise rather than being a conclusion derived from evidence. Also, what happened to the small-c conservative principle of not trusting everything decided by a govt. official. Or does that only apply when a Dem is in office?]
“should not be considered crimes, even if you disagree with them. Good faith is to be judged not by partisans,”
[i.e. no Democrats or anyone to the left of say Karl Rove need apply. Don’t mess in the business of your betters]
“even if every single blog they read agrees with them, but by reasonable objective standards”
[“reasonable”, “objective” – that is what is known in the trade as a tell – we are about to get to the good stuff now]
“like: Does a decent fraction of Americans feel this way too?”
[A decent fraction of Americans smoke dope and break the speed limit. Does that make it OK in the eyes of the law? Also note the way that “fraction” is qualified by the word “decent”. I can drive a truck through that 28 percent loophole]
Thank you for playing.
Good faith is to be judged not by partisans, even if every single blog they read agrees with them, but by reasonable objective standards like: Does a decent fraction of Americans feel this way too?
Not to put too fine of a point on it, but what you propose is nothing resembling an objective standard. Rather, it is the very model of subjectivity. Decisions to prosecute should not be made on the basis of post-hoc opinion polls, especially given that they’d be coming after relentless media pressure to view the actions in question as harmless water under the bridge.
Again, rule of law. If the laws are on the books, they should be enforced or repealed. If the officials thought it was “the right thing to do”, let them argue that at trial. If they wish to claim to have followed White House legal counsel in good faith, let them argue that at trial. But do not call for laws on the books to go unenforced simply because you find it politically distasteful.
A hypothetical: would you cry “Partisan witchhunt!” were Obama’s successor to question a “good faith” finding from his OLC that his CoC authority included him personally leading a platoon of soldiers to hunt down and kill drug dealers in and around the capitol at night in order to protect the nation? Would a decision to bring murder charges against him and his cohorts be a ridiculous attempt to criminalize a “policy disagreement” even if the successor could show clear legal precedents against government agents carrying out summary executions had been wholly ignored in crafting the exculpatory legal advice? Would it be divisive partisan vengeance to seek to bring him to court, or would we need to check whether the public approved of his actions?
For the eleventieth time, decisions made by government officials in good faith should not be considered crimes, even if you disagree with them. Good faith is to be judged not by partisans, even if every single blog they read agrees with them, but by reasonable objective standards like: Does a decent fraction of Americans feel this way too?
Unmitigated piffle. The whole point of the law is that even if “a decent fraction of Americans feel” that Cheney, Addington and Yoo should be thrown in jail without a trial, those “feelings” should NOT be honored.
If MikeR wants to hang his hat on what “a decent fraction of Americans feel”, that’s fine. But I wonder how sure he is about what “a decent fraction of Americans feel”, never mind how much deference such feelings deserve.
–TP
“let them argue that at trial”*
*Assuming the investigation that would precede such a trial found cause to move forward to indictment, etc. Obviously. Well, I *hope* obviously.
“For the eleventieth time, decisions made by government officials in good faith should not be considered crimes, even if you disagree with them. ”
This is a centrist attitude, which Gary and many others call Broderism after its chief high priest–the idea is that American officials are by definition Good and so long as they act in what they conceive to be the national interest (or claim to be), the worst that can be said about them is that they might make mistakes. To see them as war criminals is simply insane, in this way of thinking.
Do you feel this way about officials in other countries? Is the idea that so long as a country is democratic and a significant fraction of the electorate supports committing war crimes, the war crimes aren’t really crimes, but policy mistakes? Or does this only apply to America?
Are you actually suggesting that you think that being tried in the justice system is not a hardship, and therefore we shouldn’t mind if our opponents are put through it because we’re sure they deserve it?
Of course it’s a hardship, but one that we accept for all citizens, politicians included. The question is, did they break the law. Even if they thought they were doing the right thing in good faith, that doesn’t matter in most legal settings. An investigation into whether any laws were broken is not an unreasonable hardship. If the investigation concludes there was wrongdoing, then a trial is not an unreasonable hardship either.
Your standard of “good faith” gives political leaders carte blanche to break any and all laws. It’s an impossible standard.
I thought of quibbling with this statement of TLT’s, myself, but decided not to because, a) I’ve already written far more on this thread than it’s reasonable to expect everyone to read; and b) it’s not that far off.
Yes, it’s a mild over-statement. But only mild.
I’d have to footnote this, as well: “The reason most of the folks in, frex, Gary’s list of criminals are walking around today as free men is the Presidential pardon.”
As much or more of a reason are that a) Congress f*cked up the ability of Walsh to prosecute by giving immunity to many of the figures when they testified to Congress, which required prosecutors to go through extraordinary hoops to actively prove that such knowledge had no bearing on their investigations and prosecutions. That’s an extraordinary burden on prosecutions.
But b) is far more important and general, which is that Congress has always been, at best, wishy-washy about such investigations, no matter it’s, say, a Democratic Congress and a Republican administration. Impeachment proceedings should have been opened on Reagan; at the very least, committee hearings and investigations: laws were broken, as we know for absolute uncontrovertible fact.
But Congress overall thought “we can’t put the country through another impeachment,” and Reagan was too popular, and the Democrats wouldn’t be helped politically. Etc. That was the root of the failure of our country in these matters.
And when G. H. W. Bush was elected, and he issued the pardons, the whole thing just politically disappeared into the ether. Again, as happened after Watergate, but far more deeply and worse, “We Can’t Look Back, We Have To Look Ahead.” It wouldn’t be good politically for Democrats, they thought. Etc.
The Democratic Congresses of recent decades have, in such matters, with some exceptions here and there, have never remotely had the stones to go after Presidential crimes, let alone presidential grabs for power, and as a result (hardly the sole reason, of course), we continue to have a Semi-Empire.
Which is one reason it’s so laughable to hear about “far leftists” in Congress, rather than what we do have, which are crazy extremist rightwingers, rightwingers, centrists, and a handful of mild leftists, who mostly get publically known outside their districts for their occasional flaws or stupidities, which are hardly unique in Congress, but which otherwise don’t tend to get remotely as much national publicity.
GOB asks why the Democratic Congress in the last couple of years didn’t seek prosecutions of Bush, Cheney, et al. The reasons are perfectly obvious: they feared it would simply look political — as they are now being accused of being — and they were cowards, as most politicians tend to be. HTH.
“Everyone I’ve seen accepts that a foreign government waterboarding an American soldier constitutes torture.”
And I’ve always been far more concerned that not enough high-ranking and mid-ranking German and Japanese officials were either successfully prosecuted for war crimes, or got off on technicalities, or in most cases, were released after a handful of years, than I care about the fact that the hundreds of thousands of ordinary soldiers, or even low-ranking members of the SS, were generally not punished. I’m actually entirely consistent in thinking that people responsible for policy are responsible for policy, and that low-ranking soldiers and government employees, if they have good reason to think that what they are doing is legal and morally reasonable, are not responsible for policy, and don’t deserve remotely the same level of blame, don’t remotely have the same level of responsibility, and thus don’t remotely deserve the same level of punishment.
So we’ll just have to agree to disagree about this point.
“If not, what is it that distinguishes child rape from waterboarding?”
Actually, I think it’s fairly clear that lots of people not well educated in the law on torture could easily conceive, if assured by their legitimate authorities, that waterboarding is within the realm of what’s legal.
There’s also the point that, so far as we know, only three people were waterboarded, so it’s not as if we’re talking about large numbers of people involved.
I find it hard to believe that many people could believe that raping children is within the realm of what’s legal. Again, this is a point we’ll have to agree to disagree about.
“And wouldn’t most soldiers know that waterboarding a captured American soldier was torture?”
Maybe. I’d like a cite before making a conclusion.
“Wouldn’t most soldiers know that torture is not OK just because the torturers are American?”
As phrased, this begs the question. If rephrased in many possible ways that are reasonable, I think the answer is “no.”
“And do we really want a military full of people that don’t believe those three things?”
What evidence is there that we have such a thing?
“My point here is that it is quite possible that if you gave a poll, 30-40% of American soldiers would say waterboarding people is clearly OK.”
Lots of things are possible: do you have a cite on this possibility existing? If not, perhaps we should not bother discussing a hypothetical. What we do know is that not even .001% of American soldiers engaged in waterboarding. So your hypothetical seems to have little connection with any reality.
MikeR: “I am discussing: You are only looking at people who agree with you.”
Almost every time I read Powerline, I notice that their grasp of the facts of what they’re discussing aren’t, in fact, supported by cites that are objective, and that their alleged facts are, in fact, fantasies.
To be sure, I’ve only read a few hundred Powerline posts over the years, which is a very small proportion of their posts.
“You remain blissfully unaware that the other side feels exactly the same way.”
On the contrary, I read lots of rightwingers I think are lunatics. I’m entirely aware they think that I, and people who think as I do, and who think we know facts that they don’t regard as facts, and vice versa, are equally lunatic.
Of course, they’re wrong, and I’m not. I’m not sure what more I can do about that then try to make as many factual assertions as possible and do my best to support them with as objective cites as I can find.
“For the eleventieth time, decisions made by government officials in good faith should not be considered crimes, even if you disagree with them.”
This is wrong. “Good faith” isn’t what’s relevant: it’s if an actual crime was or wasn’t committed that’s relevant. Not what some politician thinks of it: what non-political professional prosecutors think of it.
If any of these issues are professionally investigated, and found to be unfounded, fine. If they’re found to be founded enough to warrant indictments, or trials, but people are found innocent, fine.
Political views have noting whatever to do with any of this. Nobody whatever is in favor of criminalizing policy they disagree with.
I might be helpful if you’d choose to argue specific issues, specific accusations, and specific events, rather than airy generalizations that aren’t falsifiable.
MikeR: piffle.
We don’t take votes on whether or not to act ethically, or whether or not to uphold the law. Prior to Truman integrating the armed forces in 1949, a “decent fraction of Americans” strongly objected to him doing that very thing. He tried to do it through the Congress in July 1948, and it didn’t pass. So he did it another, legal, way, by executive order. I have no doubt that without this move, the whole history of the civil rights struggle in the US would have been quite different — bloodier, uglier (if possible) and way way longer than it was and still is. Yet by your way of thinking, Truman should not have done it, since a majority of the country wouldn’t have agreed with it. Nor should Eisenhower have sent the Army to Little Rock in 1957; after all, Governor Faubus was an elected official acting in good faith, and 95% of the voters of his state probably believed that what he was doing was moral, completely legal, and certainly not criminal.
“Good faith is to be judged not by partisans, even if every single blog they read agrees with them, but by reasonable objective standards like: Does a decent fraction of Americans feel this way too?”
You’re advocating that whether or not people are guilty of criminal acts should be subject to popular vote? That’s one heck of an interesting view on how justice should be administered. Ever hear of “due process”?
A decent fraction of Americans thought locking up all Japanese Americans was a good idea. That didn’t make it right, and it shouldn’t have made it legal. “Popular” doesn’t equal “legal.”
Neither are all the provisions of the Constitution “popular” these days. Polls consistently find that a “decent” proportion of the population don’t want the First Amendment upheld, or any of a number of other provisions. This is not an argument that these people are correct, morally or legally. Subjectivity and pure popularity are not the founding principles of America, or American justice (or justice anywhere, if it’s true justice).
Another term for that sort of thing is “lynch mobs.” When they’re happening, they’re actually quite popular. And lynchings often took place to break people out of jail, and then hang someone else instead.
Neither is popularity a defense against violating the law. These are very odd arguments to be making. They seem, at best, to depend on a view of the law as purely subjective and purely political, as well as being purely results-oriented.
If you’re a Republican, I was under the impression that Republicans were supposed to be against all these sorts of things. Aren’t you arguing for “empathy” for the accused, rather than the rule of law?
Lizzy L,
That’s an interesting analogy you bring up, since it seems to me that the argument MikeR is making bears at least a mild resemblance to the theory of jury nullification in the old South: good people meant well and anyways that’s what the the folks what matters in the community want, so whatever they did, it must have been OK; best to just move along and not stir up trouble.
I’m glad that at least one commentator here reads right-wing blogs regularly. More power to him. He has the right to say that he finds their arguments unconvincing. Most people here, though, have responded in the last few comments as in the earlier ones: We are right, it’s objective fact, there’s nothing to think about.
I shan’t respond by presenting arguments on the subject, as the first commentator suggested. Waterboarding is not the subject. The subject is, Is this a political policy disagreement? To that question, it’s not enough to say that you find powerline et al’s arguments unconvincing. They may find them convincing, and indeed of course do.
And my criterion is not subjective, it’s an objective moral imperative. Consider this: A good fraction of Americans think that a certain approach is moral and proper. Part of them, namely, the ones in the administration, implement that approach, believing as part of their group’s point of view that it is moral and proper.
Other Americans feel strongly that it isn’t, but this group disagrees. And after all they are then running the government, and responsible to do what they consider their best job according to their best judgment.
Later they lose their jobs and a new group comes to power, representing the other Americans who felt that this was illegal and immoral. They then begin persecuting the first group in Congress. They also get themselves a Supreme Court which agrees with them, and all nine justices find it totally unconstitutional and unjustifiable.
With all that, it is still immoral to persecute the first group, which represented a certain point of view on what was right. You may not understand it, but they were doing what they could with their point of view. I don’t have to prove that they are right. The situation speaks for itself; they were working within their group’s picture of what should be done.
How is that you don’t see this as evil? It is the moral equivalent of a law ex post facto.
And I’ve always been far more concerned that not enough high-ranking and mid-ranking German and Japanese officials were either successfully prosecuted for war crimes, or got off on technicalities, or in most cases, were released after a handful of years, than I care about the fact that the hundreds of thousands of ordinary soldiers, or even low-ranking members of the SS, were generally not punished.
I’m totally confused as to what this statement has to do with the part of my statement that you quoted. I don’t disagree with it — I just have no idea how it is connected to what you quoted. Do you?
I’m actually entirely consistent in thinking that people responsible for policy are responsible for policy, and that low-ranking soldiers and government employees, if they have good reason to think that what they are doing is legal and morally reasonable, are not responsible for policy, and don’t deserve remotely the same level of blame, don’t remotely have the same level of responsibility, and thus don’t remotely deserve the same level of punishment.
I don’t know who you’re arguing with here. I’m pretty sure that I never said that every low level CIA officer or consultant who beat a detainee to death was just as morally culpable as Dick Cheney. I don’t think I’ve ever equated the culpability of low and high level offenders. You seem to be carrying out a very spirited argument with…no one in particular.
Actually, I think it’s fairly clear that lots of people not well educated in the law on torture could easily conceive, if assured by their legitimate authorities, that waterboarding is within the realm of what’s legal.
If you had suggested ten years ago that the US military was full of people who thought child rape was beyond the pale but that torture was plausible, I think most soldiers would have reacted with anger. Even today, many retired soldiers react with horror and disgust at the thought of torturing people, no matter how nice the legal justifications are.
Let me just say that if the military really is full of people who think that under some conditions, hooking up a car battery to a prisoner’s testicles might be legally OK, then we should probably disband the military right now.
There’s also the point that, so far as we know, only three people were waterboarded, so it’s not as if we’re talking about large numbers of people involved.
My complaint is not specific to waterboarding but covers all manner of torture including physical mutilation, locking people in tiny boxes, beatings, exposure to the elements, etc.
“And wouldn’t most soldiers know that waterboarding a captured American soldier was torture?”
I feel pretty confident that if North Korea captured an American military officer and waterboarded him, most people, including most soldiers would claim that is torture. Certainly, most people familiar with John McCain’s story say that he was tortured. If you disagree, do tell. I’d find that fascinating.
There are other misreadings you’ve engaged in Gary, but I’m too tired to enumerate them. And I doubt you’ll respond meaningfully anyway.
And my criterion is not subjective, it’s an objective moral imperative. Consider this: A good fraction of Americans think that a certain approach is moral and proper.
Let’s try this one more time: your criterion is almost the definition of subjective. It’s not a question about whether “a good fraction of Americans” think certain actions are “moral and proper”; it’s a question of whether those actions are illegal.
To be clear, MikeR, what you’re proposing is nothing less than the complete overturning of the rule of law. What you’re proposing is that the highest law — higher even than the Constitution — is the dictates of one’s conscience… or, if you’re a realist, the dictates of our rulers’ whims. What you’re proposing, in other words, is complete anarchy. That may be the system in which you want to live, I don’t know, but it is profoundly anti-American* and nothing I want any part of.
And nor, I suspect, do you.
* Profoundly anti-Enlightenment, really, but I somehow think you’ll find that less persuasive.
MikeR,
Does the law apply to elected officials?
I have no doubt that Cheney et al. thought that what they were doing was moral and necessary, but that’s not the question under consideration. The question is whether what they were doing was legal. Now you, and possibly many others, might like to argue that torture was moral in this circumstance and therefore they should be given a pass, but I think that’s a highly dangerous precedent to set. As a minimum, if to break the law is to do the moral thing, then those wanting to break it need to accept that there will be an investigation and likely a trial over the matter. Furthermore, if there is such a conflict between the law and morality, then those wishing to break law have an imperative to argue why the law should be changed – law and morals don’t always match up as well as they should. But elected officials can’t just break the law in secrecy and assert that it’s just a policy difference and therefore can’t be questioned.
MikeR: I also read right-wing blogs regularly. So?
The law is what it is. Some people don’t know what it is. I, for instance, know nothing at all about patent law. I’ll bet a lot of other people don’t know much about it either. Maybe a lot of us would say, offhand, that the idea that you can legally patent a gene or a living organism is silly.
But what would that show? Just that we don’t know the law. If I was going to apply for a patent, or to do something that seemed like it might infringe one, I would read up on it. Then I might be a good person to ask. As it is, I’m not. Likewise, if I were planning to do something that might be torture, or withholding information I was legally bound to give to Congress, or violating FISA, I would absolutely make it my business to know what the law says.
Why people who have no reason to know what the law says on a given topic should be the arbiter of what’s legal and what isn’t is a mystery to me. Should we do the same thing with the tax code, and decide that we should count non-payment of taxes as perfectly fine so long as some people — not necessarily a majority, not necessarily well-informed people — think it’s OK?
“I shan’t respond by presenting arguments on the subject, as the first commentator suggested.”
Well, then, there’s nothing to discuss but your feelings, which won’t be a profitable discussion. Either choose to discuss objective, citable, facts, or don’t bother commenting at all, I suggest. I know of no reason you should care about my personal philosophy or opinions, any more than I should care about yours. I’m interested in provable facts.
“And my criterion is not subjective, it’s an objective moral imperative.”
Following which, the entire content of your comment is about people’s feelings, and that’s all you discuss. That, and subjective assertions.
This is uninteresting. When you have some facts to discuss, any facts at all, about anything, come back.
(The consistent lack of citations to facts at Powerline is, as I said, the primary reason I find them an uninteresting source; who cares what opinions unrelated to checkable facts are?)
Turbulence: “Let me just say that if the military really is full of people who think that under some conditions, hooking up a car battery to a prisoner’s testicles might be legally OK, then we should probably disband the military right now.”
I’m past the point of bothering to continue this discussion with you. Either I am, as you claim, incapable of correctly reading what you write, or something else is going on. Either way, I don’t find it a profitable use of my time. Thanks for your contributions.
MikeR, many, many criminals have justifications for their crimes. They may even believe that they’re in the right, that their victims deserved it, or that what they did was necessary for the greater good. We don’t avoid prosecuting people for that.
Also, waterboarding is the subject. You can’t talk about whether authorizing waterboarding is a policy disagreement without talking about waterboarding.
If we can’t prosecute people unless we first convince their supporters that the people committed crimes, if no prosecution is valid unless the populace is unanimously agreed that a crime was committed, then we might as well dismantle our justice system completely. There’s almost always someone who supports anyone accused of a crime.
Where do you draw the line in your popularity-based justice system? How many people need to support something in order for those who did it to be immune from prosecution? 40 percent? 28 percent? 10 percent? Certainly I can imagine circumstances in which some significant minority of the American population would be in favor of murder of certain people. By your logic, such murders should go unpunished. How is it that you don’t see this as evil?
Waterboarding is not the subject. The subject is, Is this a political policy disagreement?
By this measure, all decisions to break the law are “political policy disagreements.” This is just pure sophistry masquerading as some sort of moral insight.
With all that, it is still immoral to persecute the first group, which represented a certain point of view on what was right. . . .
How is that you don’t see this as evil? It is the moral equivalent of a law ex post facto.
Well, no, see, the thing that they did was illegal at the time that they did it.
You can continue to blather on and on, Obi-Wan Kenobi like, about “a certain point of view,” but the US had laws against torture at the time these acts were being committted, and these acts are torture under any reasonable definition of the word. What’s more, Powerline and any other group of right-wing pinheads you want to dredge up know it, because if it were done to one of our soldiers, or if the Iranian regime were doing it to political dissidents, they’d be calling it “torture” so quickly the cognitive dissonance alone might snap their necks.
I mean, how can you not see that you’re arguing in favor of allowing blatant lawbreaking by the executive branch to go unpunished if the executive can dress it up as a policy decision?
MikeR ought to ponder this point: if “it” was a mere “policy difference”, the Cheney administration would not have tried so mightily to keep “it” a secret. If it was a mere policy difference, Dubya would NOT have publicly proclaimed that “We do not torture”, after suborning legal malfeasance to obtain legal cover for “it”.
Policy, even if unpopular, is what you do in the light of day. Crimes are what you try to keep secret. Prosecution of crimes that come to light is not “persecution” of “policy differences”.
–TP
Turbulence,
Maybe I can try and state this again. I am reluctant to prosecute soldiers who carried out good faith orders which they had reason to believe were legal because I seriously doubt that they have been trained to the degree necessary to recognize that their actions were illegal, especially after receiving a bunch of impressive looking legal documents telling them otherwise. I would have a harder time believing that they couldn’t recognize that child rape was illegal after receiving impressive looking legal documents. That level of common sense I would hope they have, or they should not be allowed to carry a rifle.
Possibly ethics and legal training for soldiers should be taken more seriously. But I’d like some evidence it is taken more seriously before prosecuting these guys.
Let me just say that if the military really is full of people who think that under some conditions, hooking up a car battery to a prisoner’s testicles might be legally OK, then we should probably disband the military right now.
Agreed. But that seems consistent with everything I said and everything Gary Farber said.
America’s image should never be an overriding concern. It should be an important but minor factor in the face of moral questions. Sen. McCain’s statement reminds me of the memoes in the Pentagon Papers dating the latter years of the Vietnam war. America’s top priority for fighting in that country turned from stopping the spread of communism to preserving their image as the world’s “guarantor”. As a result, the fighting and bombings escalated for the wrong reasons, and victory saw a chance to flee and took it. So perhaps a safe rule of thumb in a circumstance such as this one is that once your primary concern becomes America’s image, it’s time to accept that you’ve lost the battle.
DBake, I think you’re quite right that an awful lot of people are stuck somewhere on level 1 or 2 of the Kohlberg model. But the question remains: if we don’t hold them accountable, how are universal ethical principles supposed to be implemented at all?
I take it the best way to implement these principles is in one’s own conduct. As far as getting most of the world to act according to universal principles, why assume there is anything we can do? I seriously doubt that punishing people too stupid or poorly educated to understand what they did was wrong will do much to help implement universal principles, unless these people are supposed to serve as an example to others. But if we want to make an example of someone, I’d prefer we use a higher up.
Maybe I can try and state this again. I am reluctant to prosecute soldiers who carried out good faith orders which they had reason to believe were legal because I seriously doubt that they have been trained to the degree necessary to recognize that their actions were illegal, especially after receiving a bunch of impressive looking legal documents telling them otherwise.
ISTR that, back when Andrew was still with us, he offered some first-hand experience into what kind of training soldiers actually receive along these lines. But I’ll be darned if I even begin to know how to find that discussion on the site. Can anyone with better Google-fu lend a hand?
Two quick queries, and an observation:
First, how is the scenario you outline here substantially different than the one I laid out earlier? If an administration decides that it must perform extralegal summary executions of those American citizens it deems a threat to the public, and has its lawyers draft a legal memo stating that it’s legal (despite the fact that there are laws and clear legal precedents that flatly forbid it)… is this a criminal act, or “just” a “political policy disagreement”? More generally, is there anything that a president cannot do if they claim they believe it’s legal, so long as a carefully undefined “good fraction of Americans think that [it] is moral and proper”? Does the law apply to the executive?
Second… how is your “objective moral imperative” anything but a Brodarian rubber stamp?
Actually, as the subject is suspected illegal activities carried out under Bush with the blessing of his OLC, waterboarding (being one of the questionable acts in question) is the subject. You’ve made a sweeping generalization: all the aforementioned policies are a priori political policy disagreements, and not potential criminal offenses. This means the Bush administration’s decision to authorize waterboarding as non-torture would, per you, be a political policy decision. If you can’t defend it as a policy decision which cannot be called illegal by any non-partisan measure, nor defend OLC claims of its permissibility against accusations of bad faith, your argument isn’t even internally consistent. As was mentioned earlier, waterboarding can easily be shown by prior legal precedent to be considered torture, and its practice worthy of prosecution. This strongly undermines your assertion that its green-flagging was a good-faith policy decision rather than a disingenuous attempt to justify a criminal act.
The last cohesive scraps of your argument hinge on the good faith presumption of legality by an administration; without that, the notion that a given questionable act’s permissibility is strictly a question of political policy (and not legality) vanishes, along with any substance in your argument beyond vague calls to unfettered mob rule. So do you now care to actually argue against this point? Or shall you continue to blithely assert “[I am] right, it’s objective fact, there’s nothing to think about”?
I don’t know why anybody thinks the average soldier has a problem with raping children. Lots of Vietnamese girls were gang-raped by GIs during the Vietnam War. This is not an especially controversial fact, it’s just something nobody likes to talk about. Google “rape + ‘war crime’ + Vietnam.” A fairly typical result of that search is in this paper: http://www.law-lib.utoronto.ca/Diana/fulltext/tomp.htm,
These people are aware of what American soldiers do to them, so naturally they tried to hide the young girls. We found one hiding in a bomb shelter in sort of the basement of her house. She was taken out, raped by six or seven people in front of her family, in front of us, and the villagers. This wasn’t just one incident; this was just the first one I can remember. I know of 10 or 15 of such incidents at least. – Specialist/4 Joe Galbally, United States Army
I suppose that in some sense our soldiers knew it was wrong to rape. But let’s be blunt: the whole POINT of military training is to get soldiers to reflexively follow orders to do horrible things. After you get a teenage boy to the point where he will set strangers on fire or pump them full of bullets, it turns out to be not very difficult to push them to rape, too. And most of them go home after the war and sleep soundly about it, secure in the knowledge that war is hell, and they were doing what they were told, so it was in some sense legal and moral.
American soldiers are no more moral than any other soldiers. We can only hope to lead them more morally. That sometimes means prosecuting immoral leaders.
The reason to do this is a lot more acute than preserving America’s image in the world. MikeR, you’re quite right that Caesar’s enemies selectively prosecuted his crimes, precipitating his invasion. But you miss a vital lesson from that episode:
Every single thing you let your soldiers do abroad, they will sooner or later do at home.
The horror of Caesar’s coup is not that he was pushed to the wall. It’s that when he decided to fight back, his troops happily followed him. Rome was just another city to sack, and Roman women were just more rape victims. The marvelous, brutal machine Rome had built up was casually turned on itself (“alea iacta est” = “whoopee!”).
In this regard, please note how often commenters at your beloved Powerline (yes, I read it sometimes. With Pepto-Bismol on hand) advocate using the Army to keep order inside the nation because only the Army can really be trusted. I recall a lot of those proposals shortly after Hurricane Katrina. That reasoning made sense to Marius and Sulla, too.
Trilobite, were American soldiers actually ordered to rape children? I knew that many rapes occurred but I thought they were for the most part not conducted under orders, so to speak.
“Trilobite, were American soldiers actually ordered to rape children?”
No, you’re quite right that those weren’t under orders. Trilobite is quite correct in pointing out that there was an awful lot of raping in the Vietnam War, though. Soldiers in the field were given a high degree of autonomy to be abusive, and kill and torture as they wished, in “free-fire zones,” as well as a strong racist mindset against the gooks and slopeheads.
I in no way wish to tar all or the majority of American soldiers who served in Vietnam with such a mindset, or accuse them of having committed war crimes, or of rape specifically. I’m just saying there were a lot of soldiers there, most of whom were unwilling draftees, and a lot of bad sh*t* happens under those conditions, if no one in authority is around and thinks it important to stop it.
“But let’s be blunt: the whole POINT of military training is to get soldiers to reflexively follow orders to do horrible things.”
True.
“And most of them go home after the war and sleep soundly about it”
That, not so much, based on my relatively brief year working at the Seattle Veterans Action Center in Seattle, circa 1980 or so.
“Every single thing you let your soldiers do abroad, they will sooner or later do at home.”
That’s an extreme, almost crazy, exaggeration.
Many develop problems, many develop PTSD, absolutely. But that absolute statement? Nonsense.
It’s the discontinuity between the war zone experience and the home experience that really causes so many problems. It’s not like one can just turn a switch on or off on what are almost entirely different worlds, and entirely different sets of appropriate responses.
Longtime convicts coming into the outside world have somewhat similar problems, too, despite the prison environment and wartime military environment having many overwhelmingly different aspects, of course. But in both cases, reflexes don’t change easily, because in life, humans rarely change reflexes easily, period.
As far as getting most of the world to act according to universal principles, why assume there is anything we can do?
I am disillusioned, sometimes to the point of cynicism, about the chances of such principles ever taking a firm hold in humanity, because I’ve seen too many examples of outrageous cruelty and, probably even more importantly, widespread and casual callousness towards “the other” (and I’m not a misanthrope at all, humans are capable of all sorts of wonderful things as well and anyway humanity is all we got). That makes it all the more important to punish such behaviour and make it clear that we consider this to be outside the moral consensus, even if that consensus should not be backed wholeheartedly by the majority. Anything else is a surrender to the basest impulses of the reptile brain and we can forget about ever achieving a higher stage of humanity.
I seriously doubt that punishing people too stupid or poorly educated to understand what they did was wrong will do much to help implement universal principles, unless these people are supposed to serve as an example to others.
I really don’t understand how lack of intelligence or education is an excuse for cruelty. Are you saying that less intelligent or educated people are more likely or find it easier to be cruel? Are plumbers or secretaries more cruel or less good-hearted than lawyers or politicians? You don’t need to have a PhD in ethics to see that killing and torturing people is wrong, all you need is a basic sense of decency that your grandma could have instilled in you.
Of course formal education can help develop a moral sense and undermine prejudice, but we cannot solely rely on that and education can be used for sinister purposes just as well. There is something terribly wrong with the picture of a lower middle and lower class that paints them as people who are incapable of independent moral judgement and exonerates their actions on the basis of that.
MikeR, there are policy disagreements, and there is the law. The US constitution has a (very sensible) clause about no post-facto law or bill of attainder being passed. There is no plan to violate that (except through Telecom immunity…) Simply to enforce the law of the land. If you are actively claiming that you are above the law of the land then there is no way you can be taken as an honorable opponent.
If you disagree with the law, you have three choices as long as you are operating in good faith.
1: Work to get it changed. And then act under the new laws (which given the Republican party has a majority in the Senate, in Congress, and on the Supreme Court in addition to the Presidency wouldn’t have been too hard). This didn’t happen.
2: Civil Disobedience. Act in the full knowledge and expectation of the consequences of the law. Do what you feel you need to, and then take the consequences. This clearly isn’t happening here.
3: Don’t sweat the small stuff. Some you lose. Some simply aren’t worth the fight. Either way, ignore it if it isn’t that serious.
Instead the cabal went for option 4: Ignore the law and do whatever the fuck you want. n This isn’t a policy disagreement. It’s a direct attack on the rule of law that can only be undertaken by people not acting in good faith. And it’s a direct assault on the very constitution and legal framework on the United States of America.
And as for the arguments about a round of partisan recriminations using the legal system, do the names Kenneth Star and Monica Lewinsky mean anything to you? When the Republicans were unable to find anything legal to throw at President Clinton, they developed an obsession with the President’s Pecker. This isn’t in the same category despite your attempts to make it appear so.
novakant,
I think you and I disagree seriously about the usefulness of punishment. I do not understand why we must punish callous behavior even if there is no hope of preventing that callous behavior. This seems like beating up on people for meeting standards it was unreasonable to expect them to meet.
And I made no claim that stupid or poorly educated people find it easier to act cruel than the intelligent or well-educated. I said that it is unfair to hold stupid or poorly educated people accountable in some cases, because it is not reasonable to expect that they knew their behavior to be wrong. And unless the ethical and legal training our soldiers get is particularly good, it is unreasonable to expect them to know that waterboarding is illegal after receiving a number of legal opinions from the White House saying otherwise.
My understanding is that officers are required to take classes in ethics and law, and so holding them responsible strikes me as more reasonable. But this largely depends on whether it would seem reasonable to expect them to know that the legal opinions they were receiving from the White House might be fraudulent.
Without prejudice to anything I said in Hilzoy’s goodbye post:
I think the US is still freakin’ insane. Sorry.
I think I’m going to quit commenting here now: on this thread, at least, and on Obsidian Wings, for a while.