Do We Still Pretend That We Abide By Treaties?
On Friday in Salon, Joe Conason argued that there should be no criminal investigations of any kind for Bush officials “who authorized torture or other outrages in the ‘war on terror’.” Instead, Conason suggests that there be a presidential commission created that is “purely investigative,” and Obama should “promis[e] a complete pardon to anyone who testifies fully, honestly and publicly.” So, under this proposal, not only would we adopt an absolute bar against prosecuting war criminals and other Bush administration felons, we would go in the other direction and pardon them from any criminal liability of any kind.
I’ve already written volumes about why immunizing political officials from the consequences for their lawbreaking is both destructive and unjust — principally: the obvious incentives which such immunity creates (and, for decades, has been creating) for high-level executive branch officials to break the law and, even worse, the grotesque two-tiered system of justice we’ve implemented in this country (i.e., the creation of an incomparably harsh prison state for ordinary Americans who commit even low-level offenses as contrasted with what Conason calls, approvingly, “the institutional reluctance in Washington to punish political offenders”). Rather than repeat those arguments, I want to focus on an issue that pro-immunity advocates such as Conason simply never address.
The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compelall signatories — in language as clear as can be devised — to “submit the case to its competent authorities for the purpose of prosecution” (Art. 7(1)). And the treaty explicitly bars the standard excuses that America’s political class is currently offering for refusing to investigate and prosecute: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture” and “an order from a superior officer or a public authority may not be invoked as a justification of torture” (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention’s obligations.
There is reasonable dispute about the scope of prosecutorial discretion permitted by the Convention, and there is also some lack of clarity about how many of these provisions were incorporated into domestic law when the Senate ratified the Convention with reservations. But what is absolutely clear beyond any doubt is that — just as is true for any advance promises by the Obama DOJ not to investigate or prosecute — issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention. There can’t be any doubt about that. It just goes without saying that if the U.S. issued pardons or other forms of immunity to accused torturers (as the Military Commissions Act purported to do), that would be a clear violation of our obligation to “submit the [torture] case to [our] competent authorities for the purpose of prosecution.” Those two acts — the granting of immunity and submission for prosecution — are opposites.
And yet those who advocate that we refrain from criminal investigations rarely even mention our obligations under the Convention. There isn’t even a pretense of an effort to reconcile what they’re advocating with the treaty obligations to which Ronald Reagan bound the U.S. in 1988. Do we now just explicitly consider ourselves immune from the treaties we signed? Does our political class now officially (rather than through its actions) consider treaties to be mere suggestions that we can violate at will without even pretending to have any justifications for doing so? Most of the time, our binding treaty obligations under the Convention — as valid and binding as every other treaty — don’t even make it into the discussion about criminal investigations of Bush officials, let alone impose any limits on what we believe we can do.
What was all the sturm und drang about in 2003 over Bush’s invasion of Iraq without U.N. approval, in violation of the U.N. charter? Wasn’t it supposed to be a bad thing for the U.S. to violate its own treaties? What happened to that? Conason himself was actually one of the clearest and most emphatic voices presciently highlighting the deceit on which the pro-war case was based, stridently warning of “ruined alliances and damaged institutions.” Why, then, is it acceptable now to ignore and violate our treaty obligations with regard to torture and other war crimes committed by high-level Bush officials? What’s the argument for simply pretending that these obligations under the Convention don’t exist?
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On a related note, Conason, in the very first paragraph of Friday’s article, plainly misstated the results of a new Gallup poll on the question of whether Bush officials should be prosecuted and/or investigated. I have no doubt it was unintentional, but his error highlights a very important point about how this debate has proceeded. Here’s what Conason wrote in his first paragraph (emphasis added):
More than 60 percent of Americans believe that alleged abuses and atrocities ordered by the Bush administration should be investigated either by an independent commission or by federal prosecutors, according to a poll released yesterday by the Gallup Organization. A significant minority favors criminal sanctions against officials who authorized torture or other outrages in the “war on terror” — yet a considerably larger minority of nearly 40 percent prefers that the Obama administration leave its wayward predecessors be.
That last assertion (the one I bolded) is simply untrue. As Jim White notes here, the Gallup poll asked about three different acts of Bush lawbreaking: (1) politicization of DOJ prosecutions, (2) warrantless eavesdropping on Americans, and (3) torture. For each crime, it asked which of three options respondents favored: (1) a criminal investigation by the DOJ; (2) a non-criminal, fact-finding investigation by an independent panel; or (3) neither. The full results are here.
For all three separate acts of alleged crimes, the option that receives the most support from Americans is criminal investigations (i.e., the exact opposite of what Conason wrote). And the percentage that favor that nothing be done is in every case less than the percentage that want criminal investigations, and the “do-nothing” percentage never reaches 40% or close to it (the highest it gets is 34% — roughly the same minority of pro-Bush dead-enders that continue to support most of what was done).
As White notes, the breakdowns are even more revealing. For all three areas of lawbreaking, majorities of Democrats (which, by the way, is now the majority party) favor criminal investigations. For each of the three areas, more independents favor criminal prosecutions than favor doing nothing, and large majorities of independents — ranging from 59% to 71% — want either a criminal investigation or an independent fact-finding investigation. A Washington Post poll from a couple weeks ago found very similar results: majorities of Americans (and large majorities of Democrats) favor investigations into whether Bush officials broke the law and, by a wide margin, oppose the issuance of pardons to Bush officials.
Imagine what those numbers would be in a world where virtually every establishment political pundit — literally: whether Democratic or Republican, liberal or conservative — weren’t uniting together to oppose prosecutions for torture and war crimes. Even with that unified anti-prosecution stance from a trans-partisan rainbow of Beltway opinion-makers, criminal investigations remain the leading position among Americans generally and among majorities of Democrats specifically. Those are just facts.
As is always the case, the mere fact that majorities of Americans believe X does not mean that X is right or true. But pundits, journalists and politicians should stop claiming that they’re speaking for most Americans when they argue that we should just “move on” — or that the belief in investigations is the province of the leftist fringe — because that claim is demonstrably false.
Recall when opposition to the Iraq War and a demand for a withdrawal timetable was routinely depicted by the Beltway class as a “liberal” or even Far Left position — even though large majorities of Americans held exactly those views. Apparently, the Far Left encompassed more than 60% of the country. Or recall when Time‘s Managing Editor, Rick Stengel, went on national TV andclaimed that Americans don’t want Bush officials and Karl Rove investigated for the U.S. Attorney scandal even when polls showed that large majorities of Americans favored exactly those investigations (a false claim which, to this day, Stengel refuses to retract).
That is the same flagrant distortion of public opinion that one finds here in the debate over investigations. The Washington Post‘s David Ignatius claims that a desire for investigations of Bush crimes is confined to “liberal score-settlers.” Lindsey Graham asserts that only the “hard Left” wants criminal investigations. Newsweek‘s Jon Barry is certain that the desire for investigations is only about “vengeance, pure and simple.”
Apparently, huge numbers of Americans — majorities, actually — are now liberal, vengeance-seeking, score-settlers from the Hard Left. What we actually have is what one finds again and again: establishment journalists who will resort to outright distortions about American public opinion in order to render it irrelevant, by claiming that “most Americans” believe as they believe even where, as here, that claim is categorically false. It’s hardly surprising (except to an insular Beltway maven) that Americans, who know that they will be subjected to one of the world’s harshest and most merciless criminal justice systems if they break the law, don’t want political elites exempted from the rule of law. Imagine that.
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Finally, Newsweek‘s Michael Isikoff — echoing a report from John Yoo’s Berkeley colleague, Brad DeLong — reports that an internal DOJ probe (initiated during the Bush administration) has preliminarily concluded that Bush DOJ lawyers who authorized torture (John Yoo, Jay Bybee, Stephen Bradbury) violated their professional duties as lawyers by issuing legal conclusions that had no good faith basis, and that this behavior will be referred to their state bar associations for possible disciplinary action. Those conclusions so infuriated the allegedly honorable Michael Mukasey that he refused to accept the report until changes were made. Now it is up to Eric Holder to accept and then release that report.
The implications of this event can’t be overstated. One of the primary excuses offered by Bush apologists and those who oppose investigations is that Bush DOJ lawyers authorized the torture and opined that it was legal. But a finding that those lawyers breached their ethical obligations would mean, by definition, that the opinions they issued were not legitimate legal opinions — i.e., that they were not merely wrong in their conclusions, but so blatantly and self-evidently wrong that they were issued in bad faith (with the intent to justify what they knew the President wanted to do, rather than to offer their good faith views of what the law permitted).
The Convention Against Torture explicitly prohibits the domestic legalization of torture, and specifically states that it shall not be a defense that government officials authorized it. So whether or not these legal opinions were issued in good faith is irrelevant to our obligations under that treaty to investigate and prosecute. But a finding that these legal opinions were issued in bad faith — with the deliberate intent to knowingly legalize what was plainly criminal behavior — will gut the primary political excuse for treating Bush officials differently than common criminals.
UPDATE: Citing numerous leading international law authorities, Valtin has an excellent discussion of the obligations the U.S. has to criminally investigate Bush crimes, not only under the Convention Against Torture but also under the Geneva Conventions. If we don’t consider ourselves bound by the treaties we sign, we should just say so and abrogate them. Those demanding criminal immunity for Bush officials are advocating that we can and should violate our treaty obligations; they really ought to be honest about it.
UPDATE II: On June 28, 2004, George Bush commemorated the U.N. Day to Support Torture Victims and vowed that the U.S. “will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction.” In doing so, he specifically cited the U.S.’s binding obligation under the Convention to do so (h/t leftydem):
To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction. American personnel are required to comply with all U.S. laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees. . . .
The United States also remains steadfastly committed to upholding the Geneva Conventions, which have been the bedrock of protection in armed conflict for more than 50 years. . . . [W]e will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere.
If George Bush, citing our obligations under the Convention Against Torture and the Geneva Conventions, can publicly vow that “we will investigate and prosecute all acts of torture,” why can’t Democratic politicians and liberal pundits simply cite the same treaty obligations and make the same commitment?
Former Gitmo Guard Tells All
Army Private Brandon Neely served as a prison guard at Guantánamo in the first years the facility was in operation. With the Bush Administration, and thus the threat of retaliation against him, now gone, Neely decided to step forward and tell his story. “The stuff I did and the stuff I saw was just wrong,” he told the Associated Press. Neely describes the arrival of detainees in full sensory-deprivation garb, he details their sexual abuse by medical personnel, torture by other medical personnel, brutal beatings out of frustration, fear, and retribution, the first hunger strike and its causes, torturous shackling, positional torture, interference with religious practices and beliefs, verbal abuse, restriction of recreation, the behavior of mentally ill detainees, an isolation regime that was put in place for child-detainees, and his conversations with prisoners David Hicks and Rhuhel Ahmed. It makes for fascinating reading.
Neely’s comprehensive account runs to roughly 15,000 words. It was compiled by law students at the University of California at Davis and can be accessed here. Three things struck me in reading through the account.
First, Neely and other guards had been trained to the U.S. military’s traditional application of the Geneva Convention rules. They were put under great pressure to get rough with the prisoners and to violate the standards they learned. This placed the prison guards under unjustifiable mental stress and anxiety, and, as any person familiar with the vast psychological literature in the area (think of the Stanford Prison Experiment, for instance) would have anticipated produced abuses. Neely discusses at some length the notion of IRF (initial reaction force), a technique devised to brutalize or physically beat a detainee under the pretense that he required being physically subdued. The IRF approach was devised to use a perceived legal loophole in the prohibition on torture. Neely’s testimony makes clear that IRF was understood by everyone, including the prison guards who applied it, as a subterfuge for beating and mistreating prisoners—and that it had nothing to do with the need to preserve discipline and order in the prison.
Second, there is a good deal of discussion of displays of contempt for Islam by the camp authorities, and also specific documentation of mistreatment of the Qu’ran. Remember that the Neocon-laden Pentagon Public Affairs office launched a war against Newsweek based on a very brief piece that appeared in the magazine’s Periscope section concerning the mistreatment of a Qu’ran by a prison guard. Not only was the Newsweek report accurate in its essence, it actually understated the gravity and scope of the problem. Moreover, it is clear that the Pentagon Public Affairs office was fully aware, even as it went on the attack against Newsweek, that its claims were false and the weekly’s reporting was accurate.
Third, the Nelly account shows that health professionals are right in the thick of the torture and abuse of the prisoners—suggesting a systematic collapse of professional ethics driven by the Pentagon itself. He describes body searches undertaken for no legitimate security purpose, simply to sexually invade and humiliate the prisoners. This was a standardized Bush Administration tactic–the importance of which became apparent to me when I participated in some Capitol Hill negotiations with White House representatives relating to legislation creating criminal law accountability for contractors. The Bush White House vehemently objected to provisions of the law dealing with rape by instrumentality. When House negotiators pressed to know why, they were met first with silence and then an embarrassed acknowledgement that a key part of the Bush program included invasion of the bodies of prisoners in a way that might be deemed rape by instrumentality under existing federal and state criminal statutes. While these techniques have long been known, the role of health care professionals in implementing them is shocking.
Neely’s account demonstrates once more how much the Bush team kept secret and how little we still know about their comprehensive program of official cruelty and torture.
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Iraq to Reopen Abu Ghraib
The Iraqi government will reopen the notorious Abu Ghraib prison next month under the name of Baghdad Central Prison, a senior justice official has said.
The announcement came as the US military began handing over detainees in its custody to the Iraqis under a new security agreement.
Busho Ibrahim, Iraq’s deputy justice minister, said on Saturday the Abu Ghraib prison had been renovated to meet international standards.
“We have named it Baghdad Central Prison because of its bad reputation as Abu Ghraib prison, not just because of what the Americans did there but also because of what the regime of Saddam has done,” he said.
Abu Ghraib shot into notoriety after photographs of US prison guards torturing inmates at the facility just outside Baghdad surfaced.
While Saddam Hussein, Iraq’s deposed leader, was in power, his administration held thousands of inmates at the prison.
‘Solving problems’
Iraq has been under pressure to increase the capacity and quality of its prisons and improve the transparency and efficiency of its criminal justice system.
Under a pact which took effect on January 1, US forces in Iraq lost the power to hold without charge the approximately 15,000 detainees they have and are supposed to turn them over to Iraqi justice or set them free.
Ibrahim said the prison would house 3,500 inmates when it reopens in mid-February and would have a capacity for at least 15,000 by the end of this year.
“This prison will solve many problems for us – huge problems,” he said.
Abu Ghraib is in an area where heavy fighting took place during the early years of the US invasion in Iraq. The US military closed the facility in 2006 after constructing a giant, purpose-built prison camp in the desert on the Kuwaiti border.
Choosing Between Our Safety and Ideals
During his inauguration, Barack Obama defiantly rejected the notion that America must choose between its safety and its ideals. However, immediately following the signing of an executive order to close Guantanamo Bay within the year, the media began a campaign to choose between those non-exclusive essentials. They depicted the closing of Gitmo as an epic struggle between our safety and our ideals, the very battle Obama labeled false. The negated variable in this debate appears to be proportionality. If there is a conflict between our safety and our ideals, the weight of morality surely favors the side of our Constitution and human rights legislation. Additionally, the media suggests that every Gitmo prisoner is guilty, and if released, will surely scamper off to do terroristy things.
In today’s New York Times, a front page story entitled Freed by U.S., Saudi Becomes a Qaeda Chief portrays the possibility of a released Guantanmo prisoners returning to the battlefield as an inevitability rather than a minimal risk. If, for every one hundred innocent men released from the detention island, one returns to fight with the enemy, is this really an epic battle between our safety and our ideals? The mainstream press never considers the danger that imprisoning innocents in fact creates new terrorists out of men that would have otherwise gladly lived out their days as farmers, or politicians, or police officers in Iraq’s rebuilding society.
The real risk exists in keeping a terrorist factory like Guantanamo open. There is no way to legally or morally convict prisoners using evidence gained through “coercion” i.e. torture. Therefore, America would either have to illegally convict men with evidence gained through torture, or detain possibly innocent men indefinitely, which also violates international law and a basic pillar of our own Constitution.
It’s also essential that we examine the concept of “risk” and “safety.” America can never be 100% safe — ever. No matter how many phones we tap, no matter how many “bad guys” we torture, we can’t secure our boarders everywhere. There will always be the remote possibility that one looney will slip through the cracks and throw anthrax in the faces of schoolchildren. We must choose between if we value our freedom more, or some elusive concept of security. Personally, I would rather build bridges with our international brothers and sisters than burn a million bridges by locking up young men based on shoddy rumors. Making friends is a pretty good way to secure our future. Bombing villages and indefinitely detaining 15-year-old farmer boys is a good way to make a lot of enemies that may grow up and try to destroy the country that robbed them of their freedom and dignity.
As I write this, I just popped over to the maddeningly articulate Glenn Greenwald’s site, and see he has posted yet another beautifully polished summation of the same article. Glenn describes this assertion that every released Gitmo prisoner will become a Lex Luthor-like master villain as a fantasy. The fear-mongering hypotheticals do appear to be largely speculative, and numbers of these released super villians fluctuate greatly depending on who you ask.
America has the ability to gather intelligence and convict terrorists in a court of law. America has done this for hundreds of years, so there’s no need for a sudden exception to the rule, even when Condoleezza Rice tries to scare the crap out of us with talk about mushroom clouds. The Executive branch will always tried to expand its power, and it’s up to the Congress to tell them to back off, and that our system of justice works just fine with the tools of Habeas Corpus and public courts. Otherwise, we get a lawless mess like Guantanamo, which will act as a catalyst for future conflict, domestic and abroad.
Blowback with a capital “B.”
Media Desperately Tries to Assure Us That Obama Loves Torture
In his post today, Glenzilla thoroughly parses the new Washington Post poll which indicates that solid majorities of the American people believe that torture should not be used in any circumstances, that terrorist suspects should be tried in regular courts and that there should be official investigations into the Bush era torture regime. It would seem that the beltway elite’s characterization of people who hold such opinion as being “liberal score settlers” would both indicate that a majority of the country is liberal and that they actually believe that torture is wrong. Imagine that.
This brings up an interesting dilemma for our old pal Christopher Hitchens who held a fabulous village gala the other night at his place andsaid:
“I know something for a sure thing,” Hitchens continued. “The demand for torture and other methods I would describe as illegal, the demand to go outside the Geneva conventions — all this came from below. What everyone wants to say is this came from a small clique around the vice-president. It’s not educational. It doesn’t enlighten anyone to behave as if that were true. This is our society wanting and demanding harsh measures.” Therefore, he went on, the demand for prosecution or other measures against Bush administration officials would likewise have to come from below, via the grassroots. “Otherwise it’s just vengeful, I suppose, and partisan.”
But, as I wrote earlier, when Hitchens talks about coming from below he really means the media elite who “represent” Real Americans. They don’t listen to the polls, they listen to their guts, which are a far more reliable gauge of what the grassroots really believe than polls or elections.
Meanwhile, here’s Town Crier Chuck Todd reassuring us all that these new executive orders won’t allow the terrorists to kill us all in our beds:
Todd: There are still some loopholes. Those who are worried that somehow there isn’t going to be a way to get intelligence out of them… for instance, while there is a mandate, one of these executive orders says that the Army Field Manual is what needs to be used to decide how to interrogate these folks, there is also going to be an allowance by this new commission to come up with a protocol to deal with intelligence, you know detainees that are detained from the intelligence battlefield, not necessarily the actual combatant, you know, one that would be soldier to soldier.
Now the administration says this does not mean they will invite new methods of interrogation back into the fold, but like I said Andrea, you could go through here with a fine tooth comb and could find plenty of loopholes that would allow certain things to happen.
Now, it’s hard to make sense out of that, and I don’t know specifically what loopholes he’s talking about, but it’s clear that Chuck Todd is seeking to reassure everyone that some kind of torture will be allowed if it’s really necessary. (Boy that’s a relief, huh?)
In fact, the whole tenor of the coverage of today’s executive orders seems to be about how Obama has done this because Guantanamo and torture “look bad” but that he’s got to find some legal means to circumvent constitutional principles because well … he just does:
Pete Williams: The most controversial aspect of this is that there will still be a category of detainees that can’t be released but can’t be put on trial because there isn’t enough evidence or because the evidence was obtained in some way that couldn’t be used in court and they seem to say in this document, “we’re still probably going to have to hold those people if they’re dangerous, we just don’t know how,” so one of the things this document says is to the government, look at our legal options, there must be some legal way to do this.
And, of course, human rights groups have been saying “you can’t have it both ways” you can’t both detain them and not put them on trial.
Where do those human rights groups get those crazy ideas?
I honestly don’t know why we shouldn’t apply this logic across the board. If the authorities “know” that someone is guilty of murder but they don’t have any evidence or coerced an unreliable confession out of them under torture, why isn’t there some legal way to hold this alleged murderer anyway? Indeed, it would save a lot of time and money if we could just dispense with the whole trial process at all — if the government just “knows” when someone is dangerous and that they’ve committed crimes then what’s the point of all this “proof” business in the first place?
I have no idea what Obama really has in mind with these orders — although they are certainly a welcome step in the right direction this commission he’s forming to assess interrogation techniques seems superfluous to me. The Geneva Conventions aren’t obscure on these points and neither is the scholarship on effective interrogation techniques. I assume that he’s simply trying to appease the intelligence community by not being unequivocal in the first few days.
But regardless of his intentions, it’s clear that the media has decided that he’s trying to have it both ways. I’m sure that’s very reassuring to them — they all love torture and indefinite detention (except for themselves and their friends, who “suffer enough” if they are simply publicly embarrassed.) But if Obama’s intention is to send a clear signal that America is not going to torture and imprison people in violation of the law and the constitution, the media that’s supposed to convey that view isn’t getting the message.
Let’s hope they are just being myopic and stupid as usual. If they aren’t, or this “confusion” is allowed to stand, then it’s likely that the foreign policy benefit of changing the policies are going to be compromised. I hear that the foreigners have the internet these days.
Here’s the Center For Constitutional Rights’ statement on today’s orders.
The Washington Establishment’s Plans for Obama’s Executive Orders
“The case against Clevinger was open and shut. The only thing missing was something to charge him with.”
– Joseph Heller, Catch-22
Barack Obama will have spent his first several days in office issuing a series of executive orders which, some quibbling and important caveats and reservations aside, meet or actually exceed even the most optimistic expectations of civil libertarians for what he could or would do quickly — everything from ordering the closing of Guantanamo to suspending military commissions to compelling CIA interrogators to adhere to the Army Field Manual to banning CIA “black sites” and, perhaps most encouragingly (in my view): severely restricting his own power and the power of former Presidents to withhold documents and other information on the basis of secrecy, which was the prime corrosive agent, the main enabler, of the Bush era. As a result, establishment and right-wing figures who have been assuring everyone (most of all themselves) that Obama, in these areas, would scorn “the Left” (meaning: those who believe in Constitutional safeguards) and would continue most of Bush’s “counter-Terrorism” policies are growing increasingly nervous about this flurry of unexpected Bush-repudiating activity.
The Washington Post‘s Fred Hiatt has an Editorial today purporting to praise what he claims is Obama’s “appropriate prudence in taking things slowly — at least for now.” Hiatt further praises Obama for his intention to scrap the current military commissions system, because, as Hiatt puts it, “a deeply flawed and unjust legal process such as the one in place at Guantanamo is untenable.” Yet this is what Hiatt says about what should replace the Guantanamo military commissions system:
Mr. Obama should order trials in federal court when possible. For those for whom traditional prosecutions would not be feasible, he should ensure robust due process, whether in courts-martial or aversion of existing military commissions. If there are dangerous detainees who cannot be tried— a possibility that Mr. Obama has acknowledged — the president should consider creation of a specialized court, akin to the Foreign Intelligence Surveillance Court, in which such detainees would be guaranteed periodic review of their detentions by a federal judge empowered to order their release.
This paragraph, which more or less embodies the conventional wisdom about what should be done with Guantanamo detainees once that camp is closed, is about as ironic a claim as can be imagined. Just think about what Hiatt, masquerading (as always) as the defender of democracy and Western justice, is actually saying:
In the name of due process, we should give Guantanamo detainees a trial in our normal civilian courts, using our normal rules of justice —but only if we’re certain ahead of time that we can win and convict them. For those we’re not certain we can convict using our normal standards of due process (because the evidence against them is “tainted”), we should re-write the rules of justice and create a whole new tribunal (similar to the Guantanamo military commissions that Hiatt pretends to decry, which advocates, in Orwellian fashion, typically call “national security courts”) in order to make it easier for us to win against them and keep them incarcerated. And then, for those who we can’t convict even in the new, “looser” tribunals, we’ll just create a wholly separate, new, presumably secret tribunal that has the power to keep people detained indefinitely without having to prove that they violated any laws at all.
Rather obviously, if you afford due process safeguards only to those people you’re sure you can convict anyway, but then deny them at will to whomever you think can’t be convicted under the normal rules, that isn’t “due process.” That’s a transparent sham, a mockery of justice. You can’t have different due process standards and entirely different courts that you pick and choose from based on how many rights you think you can afford to extend and still be assured of a conviction (e.g.: “we’ll probably lose in a real court against this detainee because the prime evidence we have against him is a coerced confession, so let’s stick this one in a national security court where we can use the coerced confession and don’t have to extend other rights and safeguards that will get in our way, and thus be assured of winning”).
More obviously still, the U.S. will not, as Hiatt puts it, “end the discredited practices for handling foreign detainees that have blemished the United States’ reputation worldwide” if we simultaneously, as Hiatt advocates, create a new court that is empowered to keep accused Terrorists in cages indefinitely without having to give them a trial at all (i.e., a “preventive detention” scheme). If all we end up doing is re-creating the travesties of Guantanamo inside the U.S., we will not have taken a step forward. One could plausibly argue that replicating Guantanamo inside the U.S. will be to do the opposite.
This is why the understandable enthusiasm (which I definitely share) over Obama’s pleasantly unexpected commitment in the first few hours of his presidency to take politically difficult steps in the civil liberties and accountability realms should be tempered somewhat. There is going to be very concerted pressure exerted on him by establishment guardians such as Hiatt (and the Brookings Institution, Jack Goldsmith and friends), to say nothing of hard-line factions within the intelligence community and its various allies, for Obama to take subsequent steps that would eviscerate much of this progress, that render these initial rollbacks largely empty, symbolic gestures. Whether these steps, impressive as they are, will be symbolic measures designed to placate certain factions, or whether they represent a genuine commitment on Obama’s part, remains to be seen. Much of it will depend on how much political pressure is exerted and from what sides.
Obama deserves real praise for devoting the first few days of his presidency to these vital steps — and doing so without there being much of a political benefit and with some real political risk. That’s genuinely encouraging. But ongoing vigilance is necessary, to counter-balance the Fred Hiatts, Brookings Institutions and other national security state fanatics, to ensure that these initial steps aren’t undermined.
Torture Prosecutions Finally Begin in U.S.
While fiercely loyal establishment spokespeople such as The Washington Post‘s Ruth Marcus continue to insist that prosecutions are only appropriate for common criminals (“someone breaking into your house”) but not our glorious political leaders when they break the law (by, say, systematically torturing people), the Bush administration has righteously decided that torture is such a grotesque and intolerable crime that political leaders who order it simply must be punished in American courts to the fullest extent of the law . . . . if they’re from Liberia:
MIAMI (AP) — U.S. prosecutors want a Miami judge to sentence the son of former Liberian President Charles Taylor to 147 years in prison for torturing people when he was chief of a brutal paramilitary unit during his father’s reign.
Charles McArthur Emmanuel, also known as Charles “Chuckie” Taylor Jr. is scheduled to be sentenced Jan. 9 by U.S. District Judge Cecilia M. Altonaga. His conviction was the first use of a 1994 law allowing prosecution in the U.S. for acts of torture committed overseas.
Even in the U.S., it’s hard to believe that federal prosecutors who work for the Bush DOJ were able to convey the following words with a straight face:
A recent Justice Department court filing describes torture – which the U.S. has been accused of in the war on terror – as a “flagrant and pernicious abuse of power and authority” that warrants severe punishment of Taylor.
“It undermines respect for and trust in authority, government and a rule of law,” wrote Assistant U.S. Attorney Caroline Heck Miller in last week’s filing. “The gravity of the offense of torture is beyond dispute.”
The AP article which reported on these proceedings, by Curt Anderson, is almost as illustrative an exhibit of how our country operates as the trial itself is. Marvel at this passage:
Emmanuel had argued in previous court papers that he was being unfairly prosecuted for acts similar to those committed by U.S. personnel in Iraq and elsewhere.
The administration of President George W. Bush has been criticized by some around the world and in Congress forusing aggressive interrogation techniques. Justice Department memos were seen as providing legal underpinnings for some of the techniques.
However, administration officials have blamed abuses at places such as Iraq’s Abu Ghraib prison on a small number of soldiers or agents and insisted there has been no systematic mistreatment of detainees in Iraq, Afghanistan or the prison camp at Guantanamo Bay, Cuba.
Acts which, when ordered by Liberians, are “criminal torture” meriting life imprisonment magically become, when ordered by Americans, mere “aggressive interrogation techniques.” And while not all of the “techniques” used by the Liberians were authorized by Bush officials (“hot clothes irons” and “biting ants shoveled onto people’s bodies”), many of the authorized American techniques are classic torture tactics and resulted in thedeaths of many detainees and the total insanity of many more.
Worse, AP — with canine-like subservience — mindlessly recites the Bush administration’s excuses (Abu Ghraib was due to low-level rogue bad apples and “there has been no systematic mistreatment of detainees”) without even mentioning the ample evidence proving how false those government claims are. That’s standard American “journalism” for you: “Our Government says X, and even if it’s false and even if it’s intensely disputed, we’ll just leave it at that.” Doing anything more — as NBC News’ David Gregory pointed out — is “not their role.”
There’s something beautifully illustrative about this torture prosecution. Apparently, it’s not just appropriate, but necessary and urgent, for American courts to be used to prosecute the leaders of small African nations who order torture exclusively in their own land. Doing that is necessary to uphold what the Bush DOJ calls “respect for and trust in authority, government and a rule of law.”
But — say Bush loyalists and our pliant political class in unison — the one thing that we cannot tolerate is for American courts to be used to impose accountability on American leaders who authorized illegal torture. And, of course, the only thing worse than doing that would be to subject them to prosecution by another country or, creepier still, an international tribunal. That would be an intolerable infringement of our sovereignty, we say as we prosecute the son of Liberia’s President for acts he undertook exclusively inside Liberia.
In Liberia, the Taylor regime, for many years, was genuinely threatened by numerous rebels and revolutionary factions — ones supported by other countries — seeking to overthrow the Liberian government. The torture which Taylor, Jr. was accused of ordering occurred during a brutal civil war.
Liberia undoubtedly has its own Jack Goldsmiths and Stuart Taylors who insist that the torture which the Taylors ordered — though perhaps “crossing a line or two” — was done for the Good and Safety of the Liberian People and to defend the Government against these foreign and domestic threats. The Taylors undoubtedly have their loyalists who echo our own Cass Sunsteins and Ruth Marcuses, urging that it would be so much better for the country if everyone just let bygones be bygones and looked to the pretty future and the challenges Liberians face and not get distracted by litigating the unpleasant and partisan fights of the past.
But, like most of the alleged principles to which our political elite professes allegiance, America and its leaders are entitled to a different set of standards and better treatment. Thus, Charles Taylor belongs at the Hague, being prosecuted as a war criminal. His son belongs in an American criminal court being prosecuted by the Bush DOJ for torture. And George Bush and Dick Cheney belong on their “ranches,” enjoying full-scale immunity for the crimes they committed and a rich and comfortable retirement, treated as the esteemed and well-intentioned (even if sometimes misguided) dignitaries that they are. Virtually the only people in the world who fail to recognize this self-evident, ludicrous and disgusting hypocrisy are America’s political and media elites and those who are misled by them.
UPDATE: Michael Mukasey, who refuses even to say whether waterboarding is torture and has repeatedly acted to protect Bush officials from prosecution, appeared two weeks ago at the U.S. Holocaust Memorial Museum and actually spoke these words (h/t sysprog):
It serves as a daily reminder to the leaders of the free world, and to the many visitors to our nation’s capital, that law without conscience is no guarantee of freedom; that even the seemingly most advanced of nations can be led down the path of evil; and that we must confront horror with action and vigilance, not lethargy and cowardice. . . .
Just as the Museum has focused on present-day mass killings such as those in Rwanda or Darfur, we at the Department are doing what we can to ensure that those responsible for such atrocities are brought to justice. We have provided support to the International Criminal Tribunals for Rwanda and the former Yugoslavia; to the Special Court for Sierra Leone, and to the Iraqi High Tribunal. And where we can, we are bringing our own cases. Both the Office of Special Investigations and the Domestic Security Section – parts of the Department’s Criminal Division – are pursuing cases against perpetrators of those international atrocities who find their way into our country.
The most prominent example of those efforts is the recent conviction of Chuckie Taylor Jr., the son of the former President of Liberia, who was convicted of torturing his countrymen. His conviction – the first in history under our criminal anti-torture statute – provides a measure of justice to those who were victimized by his reprehensible acts, and itsends a powerful message to human rights violators around the world that, when we can, we will hold them accountable for their crimes.
Mukasey actually had the audacity to approvingly quote from Robert Jackson’s addresses to the Nuremberg Trials, at which this central proposition of Western justice — now explicitly renounced by America’s political and media establishment — was ostensibly established:
The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power . . . .
Unsurprisingly, Mukasey neglected to mention that Jackson, in his opening remarks to the tribunal, called “aggressive war” the “greatest menace of our times,” and in his summation, Jackson observed that “the plot for aggressive wars” is “the central crime in this pattern of crimes, the kingpin which holds them all together.”
The glaring contradictions in Mukasey’s words are too self-evident to warrant explanation. Ponder, instead, the opinion which Mukasey — by uttering such brazen statements in public and knowing he can do with impunity — is implicitly expressing about how broken is our establishment media and how distorted is our political discourse.
UPDATE II: Alberto Gonzales gave a painfully self-pitying interview toThe Wall St. Journal this week and announced that the real victims aren’t the detainees who were tortured in our secret and not-so-secret prison camps, nor the millions of dead or displaced Iraqis, nor the Americans whose communications were illegally spied upon without warrants. No, the Real Victims of the last eight years are Bush officials like him who face criticism for what they did:
I am portrayed as the one who is evil in formulating policies that people disagree with. I consider myself a casualty, one of the many casualties of the war on terror.
Here we find the predominant — virtually unanimous — Beltway mentality: when high American officials break our laws, it’s nothing more than “formulating policies that people disagree with.” Gonzales cried out: “What is it that I did that is so fundamentally wrong, that deserves this kind of response to my service?” The answers are obvious to anyone paying even minimal attention. Steve Benen points out just some of them here.
Add Up The Damage
Does anyone know where George W. Bush is?
You don’t hear much from him anymore. The last image most of us remember is of the president ducking a pair of size 10s that were hurled at him in Baghdad.
We’re still at war in Iraq and Afghanistan. Israel is thrashing the Palestinians in Gaza. And the U.S. economy is about as vibrant as the 0-16 Detroit Lions.
But hardly a peep have we heard from George, the 43rd.
When Mr. Bush officially takes his leave in three weeks (in reality, he checked out long ago), most Americans will be content to sigh good riddance. I disagree. I don’t think he should be allowed to slip quietly out of town. There should be a great hue and cry — a loud, collective angry howl, demonstrations with signs and bullhorns and fiery speeches — over the damage he’s done to this country.
This is the man who gave us the war in Iraq and Guantánamo and torture and rendition; who turned the Clinton economy and the budget surplus into fool’s gold; who dithered while New Orleans drowned; who trampled our civil liberties at home and ruined our reputation abroad; who let Dick Cheney run hog wild and thought Brownie was doing a heckuva job.
The Bush administration specialized in deceit. How else could you get the public (and a feckless Congress) to go along with an invasion of Iraq as an absolutely essential response to the Sept. 11 attacks, when Iraq had had nothing to do with the Sept. 11 attacks?
Exploiting the public’s understandable fears, Mr. Bush made it sound as if Iraq was about to nuke us: “We cannot wait,” he said, “for the final proof — the smoking gun that could come in the form of a mushroom cloud.”
He then set the blaze that has continued to rage for nearly six years, consuming more than 4,000 American lives and hundreds of thousands of Iraqis. (A car bomb over the weekend killed two dozen more Iraqis, many of them religious pilgrims.) The financial cost to the U.S. will eventually reach $3 trillion or more, according to the Nobel laureate economist Joseph Stiglitz.
A year into the war Mr. Bush was cracking jokes about it at the annual dinner of the Radio and Television Correspondents Association. He displayed a series of photos that showed him searching the Oval Office, peering behind curtains and looking under the furniture. A mock caption had Mr. Bush saying: “Those weapons of mass destruction have got to be somewhere.”
And then there’s the Bush economy, another disaster, a trapdoor through which middle-class Americans can plunge toward the bracing experiences normally reserved for the poor and the destitute.
Mr. Bush traveled the country in the early days of his presidency, promoting his tax cut plans as hugely beneficial to small-business people and families of modest means. This was more deceit. The tax cuts would go overwhelmingly to the very rich.
The president would give the wealthy and the powerful virtually everything they wanted. He would throw sand into the regulatory apparatus and help foster the most extreme income disparities since the years leading up to the Great Depression. Once again he was lighting a fire. This time the flames would engulf the economy and, as with Iraq, bring catastrophe.
If the U.S. were a product line, it would be seen now as deeply damaged goods, subject to recall.
There seemed to be no end to Mr. Bush’s talent for destruction. He tried to hand the piggy bank known as Social Security over to the marauders of the financial sector, but saner heads prevailed.
In New Orleans, the president failed to intervene swiftly and decisively to aid the tens of thousands of poor people who were very publicly suffering and, in many cases, dying. He then compounded this colossal failure of leadership by traveling to New Orleans and promising, in a dramatic, floodlit appearance, to spare no effort in rebuilding the flood-torn region and the wrecked lives of the victims.
He went further, vowing to confront the issue of poverty in America “with bold action.”
It was all nonsense, of course. He did nothing of the kind.
The catalog of his transgressions against the nation’s interests — sins of commission and omission — would keep Mr. Bush in a confessional for the rest of his life. Don’t hold your breath. He’s hardly the contrite sort.
He told ABC’s Charlie Gibson: “I don’t spend a lot of time really worrying about short-term history. I guess I don’t worry about long-term history, either, since I’m not going to be around to read it.”
The president chuckled, thinking — as he did when he made his jokes about the missing weapons of mass destruction — that there was something funny going on.
Autopsy Reports Reveal Homicides of Detainees in U.S. Custody
(released by the ACLU 10/24/05 | More Torture Documents Released Under FOIA)
Note: Numbers indicate the beginning page of the document. Many documents span multiple pages.
(These documents can be viewed using Acrobat Reader)
3128, 3134, 3140, 3146, 3156, 3164, 3171, 3178, 3183, 3192, 3198, 3204, 3208, 3212, 3228, 3235, 3242, 3250, 3252, 3254, 3260, 3262, 3265, 3267, 3269, 3271, 3273, 3282, 3290, 3293, 3296, 3331, 3534, 3549, 3551, 3554, 3565, 3573, 3582, 3588, 3600, 3611, 3612, 3614, 3618, 3619, 3658, 3659,3670, 3672, 3674, 3728, 3737, 13279, 13289, 13297, 13303, 13309, 13315, 13321, 36022, 36026, 36192, 36925, 36953, 37445
Allison Kilkenny: Unreported 
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