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.

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Newly Released OLC Torture Memos: First Thoughts

I don’t have the time to read them completely, nor to respond in any kind of detail, but here is my first thought. Doesn’t this (h/t Glenn Greenwald):

bybee2-insects

Remind you of this?

‘The worst thing in the world,’ said O’Brien, ‘varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal.’

He had moved a little to one side, so that Winston had a better view of the thing on the table. It was an oblong wire cage with a handle on top for carrying it by. Fixed to the front of it was something that looked like a fencing mask, with the concave side outwards. Although it was three or four metres away from him, he could see that the cage was divided lengthways into two compartments, and that there was some kind of creature in each. They were rats.

‘In your case,’ said O’Brien, ‘the worst thing in the world happens to be rats.’

A sort of premonitory tremor, a fear of he was not certain what, had passed through Winston as soon as he caught his first glimpse of the cage. But at this moment the meaning of the mask-like attachment in front of it suddenly sank into him. His bowels seemed to turn to water.

Lovely.

Here are the links to the memos themselves care of the ACLU (h/t emptywheel):

August 1, 2002 John Yoo memo

First May 10, 2005 Steven Bradbury memo

Second May 10, 2005 Steven Bradbury memo

May 30, 2005 Steven Bradbury memo

Finally, I agree entirely with emptywheel that the ACLU deserves more support. Like so many other organizations that rely on donations, they’ve been hard hit by the economic downturn, but they’re still fighting the good fight.

Update: Firedoglake has a petition asking Eric Holder to appoint a special prosecutor who will determine whether criminal prosecutions are warranted. Sign it here.

Published in: on April 16, 2009 at 3:09 pm  Leave a Comment  
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Reality Disconnect: Los Angeles Times Edition

In a bizarre editorial yesterday, the Los Angeles Times evaluated the arguments for and against the United States joining the International Criminal Court. Unfortunately, the arguments seemed grounded in a different reality.

The arguments against joining the International Criminal Court are rooted in fear that Americans might one day face prosecution and judgment by foreigners in The Hague, and insecurity about our own legal and political systems being strong enough to prevent that from happening. But the ICC has jurisdiction only in cases in which a suspect’s home government is “unwilling or unable” to investigate or try him itself. The court is designed to try genocidal dictators and war criminals from countries in which the rule of law is nonexistent or the courts are in thrall to the regime. The notion that this could apply to the United States is laughable, yet it was the basis of Bush administration objections.

What world is the LA Times Editorial Board living that it is “laughable” that the United States would never be unwilling to prosecute its own war criminals? President Obama and the Congress have repeatedly shown themselves to be staunchly against war crimes prosecutions for former Bush officials. This even as a leaked report from the Red Cross, the official arbiter of the Geneva Conventions, states that 14 detainees were tortured while in CIA custody.

I am strongly in favor of joining the International Criminal Court, and eight years ago I made arguments similar to those presented in the editorial. Unfortunately, the last eight years have changed the reality on the ground. The United States is becoming the kind of outlaw regime that the ICC is designed to target. I now believe that in addition to any and every other reason for joining the ICC, we should do so in the hope that it will force us to respect our own laws and international obligations.

Not the Change We Need: Part V in a Continuing Series (Updated)

When President Obama ordered executive officials not to rely on Bush-era signing statements on Monday, I decided to take the optimistic view that this was a good sign. Emptywheel was not so optimistic.

Savage (who of course wrote the book on this stuff) goes on to explain the background of Bush’s abuse of signing statements, and to note that Obama says he will use signing statements, “with caution and restraint” (whatever that means).

Clearly, my optimism wasn’t warranted.

President Obama on Wednesday issued his first signing statement, reserving a right to bypass dozens of provisions in a $410 billion government spending bill even as he signed it into law.

In the statement — directions to executive-branch officials about how to carry out the legislation — Mr. Obama instructed them to view most of the disputed provisions as merely advisory and nonbinding, saying they were unconstitutional intrusions on his own powers.

However, there isn’t a consensus that the provisions really are unconstitutional limitations on his powers. For example, Jonathan Turley, a professor at GW Law School, has concerns regarding the provision relating to UN peacekeeping missions. He makes the point that the Constitution gave Congress the ability to restrict “foreign entanglements and adventures” through the power of appropriations. This is true whether or not we agree with Congress’s limitations.

More broadly, however, the use signing statements that alter the meaning of provisions would seem to undermine the constitutional balance of powers. When combined with the Obama Administration’s defense of the state secrets privilege, the delay in releasing the contents of additional Bush-era OLC memos, and the adoption of certain rhetoric about the war on terror, this paints the disturbing picture that the Obama Administration is not serious about rolling back the Bush Administration’s executive overreach. While they have taken some symbolic steps, there doesn’t seem to be a serious commitment to either revealing Bush-era abuses of executive power or halting all such future abuses. Rather, they appear inclined to reserve the ability to abuse power in more limited ways.

This is not the change we need.

Update: The Obama Administration has moved to dismiss another civil case involving torture, on the grounds that the right of prisoners at Guantanamo not to suffer abuses was not established at the time. Unacceptable.

Not the Change We Need: Part IV in a Continuing Series

(This is not about the President’s address tonight, which I liked a great deal. I do find his focus on deficit reduction to be a little puzzling given his commitment to Keynesian stimulus, but that is a topic for another time.)

Constitutional Law Professor Jonathan Turley was on the Rachel Maddow Show again on Monday, this time to discuss Karl Rove’s failure to appear to testify before Congress. In the second half of the interview, however, the issue turned to the Obama Administration’s recent decision to adopt the Bush Administration position on a lawsuit over the retention or recovery of White House emails.

The Obama Administration is carrying a lot of water for the Bush Administration. Each day they seem to be taking the position of the Bush White House…He is doing exactly what the Bush Administration tried to do and that is to extinguish this litigation.

Among the carried water, Turley cites: statements supporting the Bush administration on treatment of detainees, the endorsement and adoption of Bush administration rhetoric of the war on terror, and the refusal to investigate war crimes.

He concludes:

These weren’t good arguments before. To argue them in court makes you equally guilty of the types of excesses of your predecessor.

I, and many others, supported President Obama during the campaign precisely because he campaigned against these kinds of executive overreach. It increasingly appears that it was unrealistic to expect that any president would willingly participate in any significant rollback of executive power. This is nevertheless disappointing from a candidate that preached both change and hope. With each decision by this president to continue the failed policies of his failed predecessor, I find it increasingly hard to find the audacity to believe in either.

Glenn Greenwald also has a post discussing other instances policy and practice continuity between the Bush and Obama administrations, citing specifically the approach to press management. It also discusses the highly disturbing reports from The Guardian that Binyam Mohamed may have been tortured while in American custody within the past few weeks.

Mohamed will arrive back tomorrow in the UK, where he was a British resident between 1984 and 2002. During medical examinations last week, doctors discovered injuries and ailments resulting from apparently brutal treatment in detention.

Mohamed was found to be suffering from bruising, organ damage, stomach complaints, malnutrition, sores to feet and hands, severe damage to ligaments as well as profound emotional and psychological problems which have been exacerbated by the refusal of Guantánamo’s guards to give him counseling.

Mohamed’s British lawyer, Clive Stafford Smith, said his client had been beaten “dozens” of times inside the notorious US camp in Cuba with the most recent abuse occurring during recent weeks. He said: “He has a list of physical ailments that cover two sheets of A4 paper. What Binyam has been through should have been left behind in the middle ages.”

Lieutenant colonel Yvonne Bradley, Mohamed’s US military attorney, added: “He has been severely beaten. Sometimes I don’t like to think about it because my country is behind all this.

The possibility that this abuse may have occurred after President Obama’s inauguration is very concerning, and should be addressed by the administration as soon as possible.

Should John Yoo Teach?

Berkeley Professor Brad DeLong has called for John Yoo to be fired from the university’s law school. He makes a strong argument and I agree that Yoo shouldn’t be teaching law when he seems to have such a flawed understanding of it. I also have a great deal of respect for Professor DeLong in making such a public statement.

However, I have been uncertain whether it is actually worthwhile to fire him. At first, I thought my concerns were over academic freedom and the ethics of firing a professor for legal advice given as a lawyer to a client. However, in the wake of the news surrounding the DOJ’s Office of Professional Responsibility’s unpublished report, those misgivings have more-or-less faded away. Fortunately, that allowed me to uncover the source of my concern – it isn’t big enough.

It isn’t enough to fire Yoo from Berkeley. (He will undoubtedly get another job, either at a law school desperate for attention, like Chapman, or at a conservative think tank). It isn’t enough to disbar him. For the role he has played in undermining the Constitution, the rule of law, and the dignity of man, those actions are insufficient. If he cannot or will not be prosecuted, then the public opprobrium must be so great that his opinions, like Carthage’s fields, are sown with salt so that nothing no policy there may grow. Yoo delenda est.

Despite our pretensions to academic freedom, professors get fired, or denied tenure, for any manner of comments found to be controversial. A 30-second google search found these two on the first results page. With his conservative credentials burnished by being fired by ‘liberal academics’, Yoo will move on to new heights from which he can launch attacks in op-ed pages around the country. This is not sufficient.

But for all that, I’m fairly certain it is necessary.

Update: I got unnecessarily rabid here, and conflated several issues. Yoo should be prosecuted for any crimes, especially war crimes, he committed. His opinions should be forcefully rejected by the public so they don’t form the basis for future policy. Firing him is insufficient for his potential crimes, inappropriate for his opinions, and necessary for his deficient professional ethics and practices. I conveyed this opinion exceedingly poorly.

Published in: on February 19, 2009 at 12:02 am  Leave a Comment  
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Don’t Investigate Roland Burris

Now that Roland Burris has confirmed that he was solicited for a campaign contribution by Blagojevich’s brother, Illinois House Republicans want him investigated for perjury.

SPRINGFIELD, Ill. – Illinois House Republicans say they want U.S. Sen. Roland Burris investigated for perjury.

State Rep. Jim Durkin told The Associated Press he and GOP leader Tom Cross will ask for an outside investigation into whether Burris perjured himself before a House committee investigating former Gov. Rod Blagojevich‘s impeachment.

This is a mistake. It would be partisan and divisive to investigate a sitting Senator during a time of national economic crisis. Rather than dwelling on the past, we need to move on and look forward. While no one is above the law, we just cannot afford to have our attention taken from the serious problems that face our country. Regardless, even if Burris may have done something improper, he was only acting in the best interests of the state – Illinois could not afford to have left a Senate seat vacant. Even if, in retrospect, he may have made a mistake, at all times he only tried his best to serve the people of Illinois and to do their wishes. Roland Burris never shied away from the tough decisions.

After all, its not like he tortured anyone, right?

Published in: on February 15, 2009 at 3:04 pm  Leave a Comment  
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Not the Change We Need: Part III in a Continuing Series

From Jonathan Turley:

Graham then asked “If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?” “Do you agree with that?”

Kagan replied, “I do” and the marriage with the Bush policies was complete. So much for change. Both Holder and Kagan have now taken such a vow with Senators in order to secure their confirmations. The message appears to be a uniquely English approach to government. We will continue policies and laws that can do great harm to civil liberties, but we will use them in a beneficent way. Your “change” is not that we will get rid of the policies. Your change is that you get us. This “trust us we’re the government” approach to civil liberties was precisely what Madison and other framers rejected. To have a well-respected academic voice such views is a terrible disappointment for civil libertarians, who are being offered a meaningful commission as a type of air kiss toward war crimes.

I do trust Barack Obama more than I trusted George Bush. This is not a particularly high standard. But I don’t want to have to trust my leaders not to infringe on the Constitution. Civil liberties are supposed to be a firewall against tyranny, regardless of leader. It saddens me that the President and his appointees apparently do not realize this, or more dangerously, do not care.

As an aside, I find it a historical irony that the United States appears to be conceptualizing something similar to the dar al-Harb, or house of war. The question, though, is if legal residents in the United States can be detained at will, as in the case of Ali Saleh Kahlah al-Marri, then where is the counterpart, the dar as-Salam?

Not the Change We Need: Part II of a Continuing Series

Yesterday, the Obama administration formally adopted the Bush administration position that the state secrets privilege could be used to dismiss a civil lawsuit on the theory that any adjudication would endanger national security. This is a dangerous position that undermines citizen access to the courts. See Gleen Greewald for a more complete discussion of Obama’s flip-flop on this issue. ABC News is reporting the same.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn’t changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

This is a depressing turn of events. The case revolves around claims made by five men that they were extraordinarily renditioned rendered to prisons overseas where they were tortured. This assertion of the privilege is especially disconcerting in light of the claims coming from Britain that the Obama administration has been pressuring British courts to block the release of information regarding the potential torture of a British national. (Although the Telegraph is reporting that the British Government suppressed the evidence because MI6 was involved in the torture, which included slicing his genitals with a scalpel.)

This is not change, it’s more of the same.

Bush Administration Legal Memos

ProPublica has published an interactive list of Bush Administration ‘secret’ memos on torture, wiretapping, and the scope of executive authority. It is an important reference on the subject.

Ultimately, President Obama and the Attorney General will have to decide whether to release these memos to the public. Regardless of whether investigations or prosecutions of Bush officials occur, these memos should be released so the nation can appropriately discuss and repudiate the actions and legal positions of the last eight years.