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July 13, 2009

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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:

[...] From 1983 to 1986, Reich established and managed the inter-agency Office of Public Diplomacy for Latin America and the Caribbean. The OPD declassified Central Intelligence Agency information and disseminated it to influence public opinion and spur Congress to continue to fund the Reagan's administration's campaign against Nicaragua's Sandinista government. The OPD was highly controversial and was criticized by numerous government sources, including a staff report by the House Foreign Affairs Committee, which characterized it as a domestic political and propaganda operation.[3] In 1987, an investigation by the Comptroller General determined that the OPD engaged in "prohibited, covert propaganda activities, beyond the range of acceptable agency public information activities". The OPD also violated “a restriction on the State Department’s annual appropriations prohibiting the use of federal funds for publicity or propaganda purposes not authorized by Congress.”[1]

[...]

From 1986 to 1989, Reich served as Ambassador to Venezuela. For this service he received the State Department's Superior Honor Award, the Meritorious Service Award and the Republic of Venezuela's Order of the Liberator, the highest honor conferred by that nation. While stationed in Caracas, Reich was said to have been instrumental in the release of Orlando Bosch, a Cuban exile, from jail where he was serving a 10-year sentence for blowing up Cubana de Aviación Flight 455 on October 6, 1976 while en route from Barbados to Havana. All seventy-three people on board were killed, including many young members of a Cuban fencing team.

During Senate hearings for his appointment to the Bush administration in 2002, Reich was asked, "Do you consider Orlando Bosch to be a terrorist?", Reich wrote in response: "I do not have sufficient knowledge of Mr Bosch's criminal activities to pass judgment on his legal status."

Result:
[...] In 1991 and 1992, at the request of President George H. W. Bush, Reich served as Deputy US Representative to the United Nations Commission on Human Rights in Geneva.
!!!

John Negroponte:

[...] From 1981 to 1985, Negroponte was the U.S. ambassador to Honduras. During this time, military aid to Honduras grew from $4 million to $77.4 million a year, and the US began to maintain a significant military presence there, with the goal of providing a bulwark against the revolutionary Sandinista government of Nicaragua, a Leftist party which had driven out the Somoza dictatorship.

The previous U.S. ambassador to Honduras, Jack Binns (who was appointed by President Jimmy Carter) made numerous complaints about human rights abuses by the Honduran military under the government of Policarpo Paz García. Following the inauguration of Ronald Reagan, Binns was replaced by Negroponte, who has denied having knowledge of any wrongdoing by Honduran military forces.

In 1995, The Baltimore Sun published an extensive investigation of U.S. activities in Honduras. Speaking of Negroponte and other senior U.S. officials, an ex-Honduran congressman, Efraín Díaz, was quoted as saying:

Their attitude was one of tolerance and silence. They needed Honduras to loan its territory more than they were concerned about innocent people being killed.
Substantial evidence subsequently emerged to support the contention that Negroponte was aware that serious violations of human rights were carried out by the Honduran government, but despite this did not recommend ending U.S. military aid to the country.
Etc. Result:
[...] President George W. Bush appointed Negroponte to be U.S. ambassador to the United Nations in February 2001, and after substantial opposition from Senate Democrats the nomination was ratified by the Senate on September 15, 2001, four days after the September 11, 2001 attacks on the United States.

[...]

During Colin Powell's speech to the Security Council on Iraqi weapons of mass destruction, Negroponte could be seen sitting behind Powell's left shoulder.

In the New York Review of Books, Stephen Kinzer reported that the messages sent by nominating Negroponte were that "the Bush administration will not be bound by diplomatic niceties as it conducts its foreign policy." A State Department official told him that "Giving him this job is a way of telling the UN: 'We hate you.'"

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.

[...] A senior Justice Department official close to Holder stressed anew yesterday that the attorney general had reluctantly come to lean toward naming a criminal prosecutor from inside the department, after months of reading classified material including a still-secret 2004 CIA inspector general report.

The announcement to appoint a prosecutor who may look into whether CIA interrogators operated outside the boundaries set by George W. Bush's Justice Department could come in the next few weeks, perhaps in concert with the release of an ethics report involving Bush lawyers, said the official, who spoke on the condition of anonymity because the process is continuing.

Federal law enforcement officials are obliged to investigate possible violations of anti-torture statutes and other criminal laws. That makes it difficult for the Obama administration to ignore material gleaned from watchdog reports, the International Committee of the Red Cross and other sources, former government lawyers said.

There's also more of McCain's quote:
[...] "What's going to be the positive result from airing out and ventilating details of what we already knew took place and should never have? And we are committed to making sure it never happens again," Sen. John McCain (R-Ariz.) said on NBC's "Meet the Press." "I do not excuse it. I am just saying: What's the effect on America's image in the world?
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):

[...] Reports circulated recently that Congress is considering a proposal to give former President Richard M. Nixon's Yorba Linda museum possession of his presidential materials, including some 46 million pages, hundreds of video tapes, and the unique cache of 4000 hours of taped conversations. Such legislation could close off public access, and allow for the destruction of millions of valuable, still-unprocessed, primary sources.

After Nixon resigned in August 1974, the Ford Administration acknowledged his ownership of the materials -- including the right to destroy them. Congress objected, however, and passed the Presidential Recordings and Materials Act in 1974, taking control of the materials, insuring their deposit in the Washington area, and providing that the records be opened and made available to the public.

During his lifetime, Nixon successfully resisted various efforts to implement the law. He devised a maze of delaying tactics, and even secured the cooperation of the National Archives to keep the tapes sealed. When the Archives was sued to force compliance with the law, Nixon intervened. His death in 1994 seemingly ended the matter, as his family and estate no longer could afford the expense of further challenges. The lawsuit was settled, with the tapes opened, access secured, and matters of ownership, possession, and control finally resolved. Or so we thought.

Now, Nixon's heirs and designees have resorted to stealth tactics to reverse settled laws and practices of thirty years and have his papers and tapes shipped to California. The proposed legislation has been promoted by a "bi-partisan," well-connected, firm of lobbyists, which contends that "it's in everyone's interest to get all the records in one place, and in the hands of the archivist." They are in one place, in "his hands," in College Park, Maryland. If the Nixon people want the material in Yorba Linda, they can copy it, and do what they want with it, including maintaining their own peculiar vision of the Nixon presidency. That undoubtedly would be a lot cheaper than sending everything to California.

Richard Nixon's heirs and friends continue to battle for control of his presidential records, just as vigorously as he did. The victory they seek would enable them to determine what may or may not be seen by historians and the public. And not incidentally, they would gain the considerable advantage of having the government provide housing for the material and maintaining their museum.

And the Nixon Library is run by sycophantic liars.
[...] Several years ago, the Nixon Foundation received $18 million as a payment for the government's alleged "taking" of the Nixon Papers. That was a questionable concession -- one largely arranged in a manner similar to the present undertaking. But all agree that the $18 million was a form of compensation for the papers. Now, the Nixon people want control of the papers. Can we at least have the $18 million paid back to the government?
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.

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