Tu Quoque (Updated)

The lastest pushback from the Republican party on the released torture memos is the claim that Democrats knew about the techniques – waterboarding in particular – and raised no objections.

[A] full-blown battle has opened between House Speaker Nancy Pelosi, D-San Francisco, and her GOP counterpart, Ohio’s John Boehner about how much top Congressional leaders knew about water boarding in 2002. It is being fueled in part by a timeline released by the Senate Intelligence Committee, chaired by another California Democrat, Dianne Feinstein.

Boehner released news reports from 2007 that seemed to contradict Pelosi, and Pelosi’s office fired back with their own. Boehner said Congressional leaders “received an awful lot of information” about interrogations, and that “not a word was raised at the time, not one word. And I think you’re going to hear more and more about the bigger picture here, that … the war on terror after 9/11 was done in a bipartisan basis on lots of fronts.”

I agree entirely. In fact, this has been a long-running complaint among most progressives that the cotton candy ass Democrats in Congress did nothing to stop the erosion of civil liberties and the rule of law over the past eight years. But this misses the point. Whether and when Congressional leaders knew about waterboarding is of no import on the question of whether Bush officials violated the law. It is of political import, of course, and of moral import. It may even be of legal import for those Congressional leaders (see: the Ministry Cases from Nuremberg). But on the sole question of whether war crimes were committed, it doesn’t matter.

I also think that this argument from Boehner evinces a basic misapprehension about what is going on here. Republicans are making a political defense because they believe all of this ‘torture stuff’ to be a political attack. Likely because if roles were reversed it would be a political attack. But it isn’t now. The D.C. political class is frankly doing everything in its power to avoid dealing with this, largely, I suspect, because they do know they face a serious political downside both for being seen as partisan and for having ignored the issue for so long. If not complicit they were at least complacent.

For most, if not all, prosecution advocates, it doesn’t matter who committed the crimes. I would want prosecutions just as strongly if a Democratic administration had been the bad actor. War crimes should never be swept under the rug. And, just to head you off at the pass, the Clinton impeachment was different. I would have been perfectly happy to have had Bill Clinton arrested and tried for perjury the minute he left office, but impeachment is a political process in a way that a criminal investigation and prosecution is definitively not. And, of course, perjury cannot really be compared to war crimes in any meaningful way.

Finally, Speaker Pelosi, this response you’ve developed isn’t going to work.

At that or any other briefing, and that was the only briefing that I was briefed on in that regard, we were not — I repeat, we were not — told that water boarding or any of these other enhanced interrogation methods were used.

What they did tell us is that they had some legislative counsel — the Office of Legislative Counsel [sic] opinions that they could be used, but not that they would. And they further — further, the point was that if and when they would be used, they would brief Congress at that time, A.

B, I know that there are some different interpretations coming out of that meeting. My colleague, the Chairman of the committee, has said, ‘Well, if they say that it’s legal, you have to know that they’re going to use them.’ Well, his experience is that he was a member of the CIA and later went on to head the CIA. And maybe his experience is that if they tell you one thing, they may mean something else. My experience was they did not tell us they were using that. Flat out. And any — any contention to the contrary is simply not true.

Speaker Pelosi, you had at the very least a moral obligation to prevent the administration from violating the law and committing a war crime. The mere fact that they believed they could torture people should have prompted all kinds of outrage. When the first reports about Abu Ghraib came out in January 2004, it should have been easy to connect the dots. By the time the Bybee memo leaked in the summer of 2004, you had no excuse whatsoever for not addressing this. Do not play coy. You hold a great deal of moral responsibility for what happened here, even if it is nowhere near the amount that accrues to the Bush administration. You can begin to redeem yourself by admitting your failures – the public loves a mea culpa. But more than being the correct political move, confession is good for the soul.

Update: Glenn Greenwald makes this same point quite a bit better than I do.

Update 2: It is worthwhile to remember that whatever Congresswoman Harman’s other flaws, she did protest the torture program.

Prosecutions: Now or Later?

Elizabeth de la Vega, a former federal prosecutor, was on Countdown tonight arguing that we need to delay the appointment of a special prosecutor, at least for a while. She cited the following concerns:

  • A special prosecutor would allow both Congress and the administration to bury any torture investigation, sending it into a “black hole”. She specifically cited the Scooter Libby investigation as an example.
  • There is no guarantee of an indictment from a grand jury, meaning that the full story may never be known without an initial public investigation. Again, she cited the Libby investigation, where he was only indicted for perjury and we still don’t know the full story.
  • The need for a full public narrative regarding torture, which is unlikely to arise without a public investigation and report.
  • And, finally, now that the law establishing the Office of the Independent Counsel has expired, special prosecutors aren’t really independent and their appointment is essentially a PR move. She again cites the Libby case, but also investigations into the destruction of the CIA torture tapes and the US attorney firings.

The video of the interview can be found here (I still do not know how to embed MSNBC video in wordpress). An article she wrote making the same argument is here.

We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I’m not concerned about political fallout. What’s good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed. And our best hope of doing that is to unflinchingly assess – just as any lawyer would do when contemplating choices of action in a case – what we would have tomorrow if we got what we think we want today. We should obviously think twice about pursuing an intermediate goal, however satisfying it may appear, if it would be counterproductive in the long term. There are times when it’s smarter to wait before taking a prosecutive step and this is one of them.

Read the whole thing and watch the interview – it is a good argument and immediately cooled my blood. However, I’m not convinced. The reason rests largely with this point made by Christopher Anders, the ACLU’s senior legislative counsel during a live chat at Crooks & Liars.

Holder doesn’t have to appoint an independent prosecutor today, but he can’t waste too much time. The Anti-Torture Act has an eight-year statute of limitation, but Abu Zubaydah (who was waterboarded 80+ times in a single months) was captured in March 2002, and FBI agents who observed the CIA interrogating him from April-June 2002 described it as “borderline torture” and comparable to SERE tactics. The statute of limitations for those particular interrogations runs out in about a year. And that’s a very important set of interrogations because they occurred before the OLC opinions were issued—so no OLC opinions there to complicate a prosecution.

This is a point that bears repeating. We should not allow the statute of limitations to expire on this, as has happened for some of most clearly illegal warrantless wiretapping. There can be no good faith reliance on advice of counsel defense for acts that occured prior to the receipt of advice from counsel, which could be key in getting mid-level officials to testify against their superiors. In January, John Conyers proposed extending the statute of limitations on torture and warrantless wiretapping, among other crimes, to 10 years. It is unfortunate his proposal was not quickly acted upon. It is too late for the March 2004 wiretaps, but not for the April-June 2002 interrogations or the August 2002 Bybee memo.

I do not believe that de la Vega is in any way disingenuous about believing that the best possibility for a full public accounting of the torture program and a successful prosecution of those involved requires a more measured public approach. However, indictments will take time, even in the aftermath of a full public report from a commission; a report that will take considerable time in of itself. In the absence of congressional action, the clock is ticking and the questions may need to be asked: would we rather a full public accounting or a prosecution? Are we willing to let some people involved go free by virtue of their early departure from the administration, like Jay Bybee, in order to make the case against others stronger? These are not questions that I feel comfortable answering, but someone will need to – sooner rather than later.

On a broader note, it should not be possible for the statutes of limitations for any crime committed by executive branch officials in their official capacities to expire during a two-term presidency, meaning that they all must be longer than 8 years or they should be tolled until the end of the current administration. This seems like a common sense good government reform, though I’d be willing to hear arguments saying otherwise.