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October 07, 2007

Comments

"Maybe he knows full well the likelihood that as President he'll have access to additional evidence of criminal activity, & he will expect DOJ to do its job then, but sees no need to take political heat for it now."

Your explanation sounds reasonable.

And look at it this way: Do you think that promising to investigate Bush et al will help Obama win the election? I think it might only scare Bush into trying to do something too drastic for contemplation.

I'm very good at making up plausible rationales for why politicians I like behave in ways I don't like, & why they're going to improve when it really matters. They never turn out to be right, though, so I'm trying to break myself of the habit. I don't think it makes much sense that Obama is going to be MORE liberal & MORE daring as President than as an underdog candidate in the Democratic primary.

As far as Bush, talking a lot about investigations in detail might lead to pardons, but I doubt it will be decisive. I don't know what you mean about "too drastic for contemplation"--refusing to leave power? I'm not worried about that. I'm not asking Obama to go on and on about prosecuting Rumsfeld for war crimes. "My Department of Justice won't prosecute or fail to prosecute for political reasons. We will investigate credible allegations of serious crimes by high officials as thoroughly as it investigates any other crime" would work just fine--it's not like Obama ought to be personally involved in the details of the investigation.

Clinton made the mistake to not go after the crimes of his predecessors because "I have to work with these people". Did not work out in his favour.
http://alternet.org/story/64345/>link

Let's be careful here and make sure we differentiate between revenge and justice. There's no question in my mind that the Bush Administration has committed crimes, that these crimes should be investigated, and that they should be prosecuted to the full extent of the law. BUT this should not be motivated in any fashion by revenge, and it must be like Caesar's wife -- above all suspicion of being motivated by revenge. As a political opponent of the Bush Administration, Mr. Obama cannot pursue any prosecutions or make such prosecutions an element of his policy lest he create the impression of being motivated by revenge. His best approach is to take an official "hands off" policy and let the Justice Department handle it on its own. We all know that, if prosecutions are forthcoming, the Right will scream that they are politically motivated. For this reason, we must make absolutely certain that Democrats say absolutely nothing about such prosecutions. "That's a matter for the Justice Department to decide" is the only comment Democrats should have on such matters.

Is there an actual transcript of his comments available? What little the reporter quoted was just an empty platitude: "I don't want to waste time as president spending all our time looking backwards. I want to look forward." This sounds more like a dodge than a campaign promise.

Erasmussimo: the Justice Department is a cabinet department, not an independent agency. The decision to prosecute or not prosecute a particular person is not something the White House should interfere in, nor should the OLC act like its mission is to give the president whatever he wants. But the White House certainly influences DOJ policy--this is why Obama has stated that, for example, the FBI should have a permanent task force capable of investigating crimes by military contractors, and that if he is president the civil rights division will prosecute real cases of voter suppression rather than phony cases of voter fraud. What exactly about my proposed answer was different from that, or suggested improper personal involvement by Obama? I'm not suggesting he play prosecutor. I'm suggesting he not brush aside discussion of what to do about abuses of power with airy suggestions that dwelling on them would be "backward looking" or that there's no evidence of actual crimes*. If he takes that attitude, his Justice Department probably will too.

*he has suggested this before in the context of impeachment: he said, not just that impeachment was politically counterproductive, but that we should save it for cases where there's really evidence of crimes.

Gromit: maybe, but it is practically identical to his reactions on impeachment. It's not a comment that leads me to think "that doesn't sound like Obama"; it leads me to think "oh right, this again, this is why there's a good chance I'll end up voting for Dodd or Edwards."

The specific comment on impeachment I was referring to was:

"I think you reserve impeachment for grave, grave breeches, and intentional breeches of the president's authority."

Ok, he blew it on this one - but he's probably just a bit hemmed in by his new politics approach. When he's in office he can discover the problems were worse than he expected etc.

Anyway it's just one thing, no candidate is going to be perfect. [Said by someone who has trouble getting past his "All honor and glory to God" starting spot.]

I agree. If no one is ever held accountable for this, it's never going to stop. send a few people to jail and I bet we could end our torture problem. see also iran contra -- the failure to hold people accountable there is, i think, a direct cause of the mess today. hell, it's the same group of people.

all that said, i'm not ready to give up on obama on this yet -- it's not exactly a winning GENERAL election argument. it should be, yes, but not sure it is.

I don't think it's either winning or losing in the general election; I think it'd help in the primaries, and if he doesn't start moving in the primaries the general is moot.

Granted, this is a much higher priority for me than most people. But it's symptomatic of his general approach.

And I'm not having qualms about voting for him in November, but I've been hoping for him to convince me to actively support his primary campaign since bloody February, and he's if anything further from having my solid support now than he was then.

Katherine, your proposed wording sounds fine to me -- I took so long writing my own post (over an hour, due to interruptions) that I didn't see yours when I wrote it.

So the real question is whether we should approach past crimes with a strictly non-political approach (let the Justice Department prosecute as it sees fit) or an explicitly forgiving approach as a policy. In general, I much favor the strict, by-the-book approach. However, I felt that Mr. Ford's pre-pardon of Mr. Nixon was good for the country, because we were so divided and so partisan, we needed to put the past behind us.

I'm not so sure about the present situation. Again, I have no doubt that crimes were committed. If Ms. Clinton is elected, then I would hope to see some prosecutions. However, Mr. Obama seems to be advancing the notion that we should put past partisanship behind us and concentrate on the future. If he turns out to be a genuine "uniter, not divider", then I would support a policy of leaving the skeletons in the closet.

Erasmussimo: However, I felt that Mr. Ford's pre-pardon of Mr. Nixon was good for the country, because we were so divided and so partisan, we needed to put the past behind us.

I don't see how it can be good for the country to encourage policitians to believe they can get away with criminal behavior. Indeed, given the criminal behavior by high politicians that has followed Nixon's pardon, it clearly wasn't good for the country, and it would have been better to have Nixon tried for his crimes in open court: the principle that no one is above the law upheld.

Had a prosecution of Mr. Nixon proceeded, he would likely have been found guilty and sentenced to jail. The Right would never have accepted it, and the grudge would have stuck forever. Indeed, their impeachment of Mr. Clinton was surely at least partly motivated by a desire for payback after Mr. Nixon.

That said, I don't think we should make policy on the basis of fear of the irrational behavior of the Right. They're still convinced that Vietnam was lost because of a liberal "stab in the back", and even now they're invoking that for Iraq.

My point is that sometimes it's better to be magnanimous in victory, even when you're right. I consider the top priority for the next Administration to be legislation to prevent the abuses of the Bush Administration from ever being repeated. I'd like to see legislation making clear that signing statements mean nothing, tightening up FISA, clearly banning all forms of torture, restricting Presidential power to wage war, and so forth.

We could get such legislation if we emphasized "healing the wounds of the past". If we took the hard line and prosecuted Bush Administration officials, we'd win some and lose some, but we'd never get the clarity that we'd get from explicit legislation.

The years 2001 - 2008 will forever be a stain on the American Republic. Do we want to ensure that this stain will never be repeated or punish those who made the stain? We may well have to choose between one or the other.

Had a prosecution of Mr. Nixon proceeded, he would likely have been found guilty and sentenced to jail. The Right would never have accepted it, and the grudge would have stuck forever. Indeed, their impeachment of Mr. Clinton was surely at least partly motivated by a desire for payback after Mr. Nixon.

That said, I don't think we should make policy on the basis of fear of the irrational behavior of the Right. They're still convinced that Vietnam was lost because of a liberal "stab in the back", and even now they're invoking that for Iraq.

My point is that sometimes it's better to be magnanimous in victory, even when you're right. I consider the top priority for the next Administration to be legislation to prevent the abuses of the Bush Administration from ever being repeated. I'd like to see legislation making clear that signing statements mean nothing, tightening up FISA, clearly banning all forms of torture, restricting Presidential power to wage war, and so forth.

We could get such legislation if we emphasized "healing the wounds of the past". If we took the hard line and prosecuted Bush Administration officials, we'd win some and lose some, but we'd never get the clarity that we'd get from explicit legislation.

The years 2001 - 2008 will forever be a stain on the American Republic. Do we want to ensure that this stain will never be repeated or punish those who made the stain? We may well have to choose between one or the other.

You have stated my problem with Obama exactly. I start to think I will support him, then he says something or fails to lead on something, and I find myself backing away.

Erasmussimo: "However, I felt that Mr. Ford's pre-pardon of Mr. Nixon was good for the country, because we were so divided and so partisan, we needed to put the past behind us."

Jes: "I don't see how it can be good for the country to encourage policitians to believe they can get away with criminal behavior."

Even more to the point, it didn't work.

South Africa's Truth Commission, and similar entities and processes in other, including ex-Communist, nations, were based on giving amnesty and forgiveness to those who openly confessed their crimes in all details, and answered all questions about them.

You can't have just one half of the equation for the formula to work.

I'm wondering if Mr. Obama got caught in the headlights a bit, didn't have this one mentally worked out in his new, improved, "assertive Obama" mode, and just reverted to his familiar and reflexive touchstone of "no conflict." (And as an aside, how much of said reflexive demurral might be due to his being African-American...) As a suggestion to him and his people, perhaps something along the lines of: "As president, I will restore and lead a Department of Justice that will prosecute criminality without prejudice or bias. This is a nation of laws, not men, and without respect for the law the Constitution is just an old piece of paper. We need to create a new way forward, a way based once again on the fundamental rights and responsibilities promised by the Constitution of the United States." Or something like that....

"I'd like to see legislation making clear that signing statements mean nothing, tightening up FISA, clearly banning all forms of torture"

A lot of it was clearly illegal the first time around. They have argued, among other things, that statutes that prevented the president from torturing anyone he needed to torture or eavesdropping on anyone he wanted to eavesdrop on, violated the Constitution & the President was free to ignore them & classify the evidence. What statute do you propose that would be immune to some future David Addington arguing that "if the President does it, it's not illegal"? You need an enforcement mechanism. We could pass statutes that gave courts more of a chance to enforce the law in civil cases, but for criminal laws to be enforced, you need the executive branch to be willing to prosecute. Obviously, the administration whose justice department authorizes the abuses isn't going to prosecute them--so criminal laws will be enforced by a future President, or they won't be enforced at all.

Do we want to ensure that this stain will never be repeated or punish those who made the stain? We may well have to choose between one or the other.

I reject, utterly, the idea that the two ideas are in any kind of opposition, much less that we may well have to choose between them.

Had a prosecution of Mr. Nixon proceeded, he would likely have been found guilty and sentenced to jail. The Right would never have accepted it, and the grudge would have stuck forever.

Er, as opposed to what actually happened? You can still find Ben Stein and others in the pages of the WSJ, National Review, and just about every other movement conservative organ defending the Nixon administration and getting their dander up about his being "hounded from office" today.

In my haste and high dudgeon, I gave no reasons for my assertion. Thanks, Gary, for providing them.

"You need an enforcement mechanism. We could pass statutes that gave courts more of a chance to enforce the law in civil cases, but for criminal laws to be enforced, you need the executive branch to be willing to prosecute. Obviously, the administration whose justice department authorizes the abuses isn't going to prosecute them--so criminal laws will be enforced by a future President, or they won't be enforced at all."

1974 never happened, he observed, as he banged his head against the wall.

It's not like this conundrum never occurred before, though, you know.

Does having statutory independent prosecutors cause problems? Yes. Greater and more serious problems than not having them? You tell me.

But enforcement mechanisms have come up before.

It's probably redundant, but I feel like reiterating, anyway, for emphasis, that Erasmussimo's whole line of argument fails because it ignores the crucial point I brought up about how societies do actually make amnesties and forgiveness work: only after confessions and full honesty on the part of the criminals; that's the price they pay for their reward, amnesty.

And the price society pays for peace and increased harmony is that criminals go free, but we're rewarded by knowing the truth: the whole truth.

To argue that criminals should simply go free, tra-la-la, is both immoral and utterly ineffective, unless you just like suffering the criminals repeating their crimes, in which case, way to get what you want.

I disagree with the assertion that the Bush Administration's crimes were CLEARLY illegal. I think that they used enough weasel-wording, ambiguity, plausible deniability, and tortuous legal arguementation to provide some sort of defense in the event their actions came to trial. In order for law to work, it has to be ironclad, nailed down, black and white, especially when it addresses highly charged issues. Remember, our criminal system includes the presumption of innocence. Could we really convince every single juror -- beyond a reasonable doubt -- that Mr. Bush acted with criminal intent? That all his crimes weren't just misinformed errors of judgement? That he didn't misunderstand some of the recommendations made to him, or can't recall what was said that day? At least 20% of the American public still supports Mr. Bush -- do you think that one of those persons on a jury would vote to convict? What do you think are the chances of getting a jury without one of those people -- and then convincing an appellate court that the jury was fairly selected?

Now, consider the ramifications of an acquittal. "Mr. Bush is vindicated! Those nasty liberals have been shown up to be the conniving schemers we always said they were!" And consider the impact of this on the future. We've now laid out a blueprint for future would-be Bushes to evade the law and get away with it.

No, you don't want to prosecute in a situation like this unless you've got a slam-dunk case and are confident of success. And I don't see much cause for such confidence. The best we can do is tighten up the laws, make it easier to nail Presidents who seek to evade the law, restrict Presidential power, and so forth.

"Could we really convince every single juror -- beyond a reasonable doubt -- that Mr. Bush acted with criminal intent?"

It's utterly unclear, to me, at least, what circumstances you are referring to: trying Mr. Bush in ordinary criminal court after he's left office? Trying him in an impeachment and subsequent Senate trial, for removal from office? The International Court of Justice, after he's left office?

Or what?

Because what Katherine wrote about, right or wrong, was about what rhetoric should be used now in a political campaign about what should be said as regards investigations in the next administration.

She didn't say anything about jury trials, or any other specifics, that I see, beyond addressing the immediate question of Obama's rhetoric, and the implied question of "investigations."

But maybe you're responding to something in subsequent exchanges, and aren't bothering to quote it.

It's really really really useful to quote what you're responding to, though.

"I disagree with the assertion that the Bush Administration's crimes were CLEARLY illegal."

What assertion? Made by who? Where? It would be so much trouble to quote, and let us know?

Gary, this discussion is somewhat confused by the fact that we are discussing two very different cases: the Nixon case and the Bush case. I certainly do not recommend amnesty for Mr. Bush and company, so let's dispense with that. Your argument thus applies only to Mr. Nixon. I believe that this time was a period of especially great political strife within the American polity. Democrats and Republicans really were at daggers' points, and there was a profound sense throughout the nation that this was a crucial moment in American history. The Left won the basic conflict -- Mr. Nixon was removed from the Presidency. The question resolved by Mr. Ford was whether there would be a criminal prosecution of Mr. Nixon. The Right had grudgingly acquiesced to the impeachment of Mr. Nixon, but a criminal prosecution might well have gone too far.

I remind you that, in the years following the pardon, Congress was able to pass the FISA, the War Powers Act, and a number of other constructive responses to the disasters of Vietnam and Watergate. Would the Republicans have permitted this had Mr. Nixon been sent to jail? We can't know, of course, but we can be sure that they would have been less cooperative in such a scenario.

Sorry, Gary, the quote on illegality was from Katherine:

"A lot of it was clearly illegal the first time around"

As to the question of jurisdiction, the context of discussion here was whether Mr. Obama would seek to prosecute Bush and Company if elected. That, and my many references to criminal proceedings, makes it clear that I'm referring to a criminal prosecution of Bush Administration officials after the election of the next president.

"No, you don't want to prosecute in a situation like this unless you've got a slam-dunk case and are confident of success. And I don't see much cause for such confidence."

Rumor has it that typically investigations come before decisions to prosecute.

But it's lovely of you to dismiss, not the claim that matters should be investigated, with the refutation that, prior to formal investigation, cases aren't yet proven, but simply the argument that a politician should call for investigations.

That's really impressive. We shouldn't even discuss investigations, let alone have them. Why? Erasmussimo's argument is that a "a slam-dunk case" isn't yet proven!

The fact that we've not even had any investigations, let alone the congressional Judiciary Committees looked into any potential criminal violations, to even contemplate what laws might have been broken, should be no obstacle to concluding that we shouldn't have any investigations, and mustn't even discuss the possibility, on the grounds that the case isn't proven!

And we mustn't be divisive, after all.

Fantastic logic.

It's very efficient, I'll grant you that. Saves all sorts of time and trouble.

Erasmussimo: I remind you that, in the years following the pardon, Congress was able to pass the FISA, the War Powers Act, and a number of other constructive responses to the disasters of Vietnam and Watergate. Would the Republicans have permitted this had Mr. Nixon been sent to jail?

What difference would it have made to the political situation if, instead of Nixon getting away with his crimes, he had been brought to trial in open court? Do you think Republicans would have been more likely to defend and support Nixon, and less likely to feel that they should support basic civil rights legislation, if it had been made public and clear exactly what Nixon had done, what laws he had broken, and that no one im the US - not even the President of the United States - is above the law?

Your argument appears to be that Republicans would have been so resentful of a Republican President not being allowed to get away with his crimes that they would have behaved like... well, like Republicans in Congress today, who are clearly not reacting like this because they are resentful that Bush is being prosecuted and jailed: they're resentful that after six years of being expected only to rubber-stamp what a Republican President does, they have to carry out their Congressional responsibilities.

I think you are mixing up two situations, and assuming that how Republicans in Congress behave now is how they would have behaved had Nixon been brought to trial... and I fail to see how you are arguing from one situation to the other.

For God's sake, the man advocates a bigger military, all told. Kucinich for president,
period.

Gary, I'm going to turn the tables on you and ask you to provide the quote you think I made in which I rejected the notion of investigating the crimes of the Bush Administration. I don't think you'll find any such quote. I therefore suggest that a retraction of your 6:00 PM post is in order.

Jesurgislac, you're quite right than my speculations regarding the likelihood of passage of FISA and the War Powers Act are just speculation. We really don't know. The parallel between the two situations is interesting but not tight enough to provide a compelling case for either of us. I am offering the point as a suggestion, not compelling proof. The real question we're pondering here is: if we prosecute the members of the Bush Administration after 2008, will we be more or less likely to be able to pass legislation preventing a repeat of such behavior? I think not, for two reasons. The first I have already stated: such prosecutions would be so divisive as to continue the polarization that is crippling Congress even now. We need a Congress that can function, not one bent on crushing the minority.

The second reason, I think, is more compelling, and I have already stated it: that the likelihood of obtaining a conviction in such emotionally charged circumstances is too low to protect us from the disaster of an acquittal. Can you really imagine a jury panel that is unanimous in sending a past President to jail? Do you really think that there won't be at least ONE person who decides that "I just can't send the guy I voted for to jail"?

This will work out much better if we do it at the Congressional level. Let there be Congressional investigations of past abuses (note, Gary, that this is my first mention of investigations). Such investigations would reveal just how bad things were and thereby lead to a greater resolve to pass legislation preventing such behavior. But if we handle this at the criminal level, I think it will backfire on us.

Erasmussimo: such prosecutions would be so divisive as to continue the polarization that is crippling Congress even now.

So your contention is that Republicans in Congress would continue to support Bush and claim him as central to their party, defending him and attacking people who opposed him, after he had been brought to trial and found guilty?

True, at the moment the principle that Republicans in power can't be held responsible for their crimes is divisive. But the notion that this will get better if Republicans are allowed to get away with their crimes is folly.

Can you really imagine a jury panel that is unanimous in sending a past President to jail?

Actually, yes.

Jesurgislac: But the notion that this will get better if Republicans are allowed to get away with their crimes is folly.

But that's not how'll they'll perceive it. Allow me to rephrase your statement from their point of view:

The notion that this will get better if Republicans are prosecuted for political reasons is folly.

...a rephrasing that, I think you'll agree, demonstrates the problem I worry about.

Erassissumo, we seem to be having difficulty communicating. Let me try a less subtle approach: HOW THE BLOODY HELL IS A STATUTE GOING TO ACTUALLY PREVENT ANYTHING IF IT NEVER IS AND NEVER CAN BE ENFORCED?

Also: I am not asking for indictments issued on January 21. I am saying, take the 19 abuse files sent to E.D.Va. to die & other relevant evidence on the torture cases. Put it on a prosecutor's desk, and say: investigate this to see if anyone has committed a crime. If there is strong evidence that they have, charge them. And do the same for the FISA cases. That would be how any legitimate prosecution would begin.

Congressional investigations would be great, but the Democrats aren't making them a high enough priority; even when they do, the administration ignores subpoenas; even if the Democrats hold the administration in contempt of Congress, they don't actually have a means of forcing them to hand over the documents without a court order they're extremely unlikely to be able to procure until 2009.

"Put it on a prosecutor's desk, and say: investigate this to see if anyone has committed a crime. If there is strong evidence that they have, charge them. "

And that's more or less what Obama seems to have said:

"...adding the caveat that if evidence of criminal activity arose, he would expect it to be pursued by the Justice Department."

Katherine, what more do we expect him to say at this time?

Katherine writes:

HOW THE BLOODY HELL IS A STATUTE GOING TO ACTUALLY PREVENT ANYTHING IF IT NEVER IS AND NEVER CAN BE ENFORCED?

Golly gee, I wouldn't know. Of course, I never said anything about never enforcing any statute -- that's a fantasy you created inside your own mind. If we had solid proof of willful violation of the law with criminal intent, then by all means prosecute. And I have no objections to investigations, either. Part of our problem here, Katherine, is that we're talking about a huge range of crimes committed at many levels. Are you talking about prosecuting Mr. Bush for torture? Mr. Rumsfeld for misuse of government funds? Mr. Cheney for false statements to Congress? There are lots and lots of crimes, and we've been discussing them at a very high level. My concern is with an attempt to go after the entire Bush Administration for the whole range of crimes -- and I am especially concerned about prosecuting Mr. Bush himself. Not because I don't think him guilty, but because I think he could squirt enough ink into the water to convince at least one sympathetic juror to refuse to convict. Then we'd have a real disaster on our hands, because Mr. Bush would be vindicated in the eyes of posterity. Instead of being the most criminal President in American history, he'd go down as the innocent hounded by liberal witch-hunters. Do you not perceive just how catastrophic such an outcome would be? It is imperative, for sound political reasons, that we prosecute Mr. Bush and Mr. Cheney only if we are certain that we can nail them.

None of this argues against investigation, although I think such investigations should be carried out quietly -- if we make a big deal out of investigating the Bush Administration and don't send anybody to jail, it's going to backfire on us.

You seem to be hypothesizing that I'm trying to protect these people, or that I don't have the spine to prosecute them. But my real motive is already in front of your face: I don't want to make matters worse by permitting my anger at their crimes to lead me to actions that ultimately would backfire.

Bill Clinton has said in the public domain that he worried his wife was too inflexible to get elected president.

Later he has been recorded as prophesizing the following 1) someone younger, more charismatic will arrive 2) that person will exude confidence and decency and idealism 3) people will believe in him as the alternative to hillary 4) there will be expectation 5) there will be disappointment 6) Hillary's problem solved: she's "stable."

Friends in the media?

Can we agree that all of the candidates have been invited and have accepted membership in the Council On Foreign Relations except for Dennis Kucinich and Ron Paul? (No? Google it.)

Thus the pattern of "inscrutable" authorization votes for Republican policies by "Democrats" Jumbo Dwarf, the Mulatto, the Ambulance Chaser, New England Mexican, etc., on behalf of the managerial state.

If you don't care for the war or the neocon cabal, vote Kucinich or Paul. The rest kowtow to AIPAC. (Youtube it.)

Ron Paul is the more astute choice.

Either pick will keep your face pie-free in Nov '08 and your self esteem intact.

I'm going to vastly oversimplify.

There isn't really an argument about whether or not a convincing case can be made against this administration on several particulars.

We can posit not only a prima facie case, but a slam-dunk case. The situation though, is this: You have the slam-dunk case, they have 2 jurors and an alternate in the bag, and you know this going in. What do you do?

"What do you do?"

You ask whether it helps you get elected.

I hear a lot of people talking about how a Democratic victory is a sure thing; that kind of talk makes me nervous. It's a long way to election day 2008. Candidates have to think strategically and decide which fight they want to take on. Is making post-election investigation of the Bush administration a winning plank?

If I were a leading presidential candidate, and if I had every intention of prosecuting Bush, Cheney, Rumsfeld, and/or other senior figures after being elected, I would say NOT ONE WORD about that until after I was safely inaugurated. Saying anything at all would invite Bush to hand down comprehensive pardons to anyone who's ever worked for him. (Which, I recognize, he might do anyway... but why make it more likely?)

So you can't infer anything, one way or the other, from Obama's failure to promise investigations. Which doesn't mean I necessarily think he's everything I'd like him to be -- I basically have the same overall impression as hilzoy.

A mumbly "the Department of Justice will investigate evidence of all criminal activity without regard to politics" answer would not have provoked this reaction from me. When asked about this, when asked about impeachment, he isn't just vague. He goes out of his way to say that we have to move forward, not backwards; to imply that there have NOT been crimes or serious abuses; to distance himself from impeachment, investigation, & prosecution.

I don't expect Rumsfeld, Cheney or Bush to be prosecuted. I would like some of those 19 cases referred to E.D.Va. to die see the light of day. I would like to know the details of what happened--in the near future, when it can make some difference to prevent its repetition & not when they declassify the documents when I'm 65 years old.

I do not for a moment expect either of those modest things to happen even if a Democrat wins the election, even if it's Mr. "Audacity of Hope." Hence, the shrill.

"He goes out of his way [...] to imply that there have NOT been crimes or serious abuses"

I've missed that, and it's really surprising (and disconcerting) to hear. Lately I've seen complaints in the 'sphere about him missing controversial votes, but then when I've tried to follow the primary campaign via blogs - e.g. MyDD and Kos - I've found the partisanship is impossible to sort through. Apparently I ought to pay more attention, but I think I'll just stick with "all three leading candidates would make satisfactory presidents [and Dodd is seeming good too]" and hope for the best. It's like what I hate about playoff baseball, the stakes are too high.

Erasmussimo wrote, "And I have no objections to investigations, either. Part of our problem here, Katherine, is that we're talking about a huge range of crimes committed at many levels. Are you talking about prosecuting Mr. Bush for torture? Mr. Rumsfeld for misuse of government funds? Mr. Cheney for false statements to Congress? There are lots and lots of crimes, and we've been discussing them at a very high level. My concern is with an attempt to go after the entire Bush Administration for the whole range of crimes -- and I am especially concerned about prosecuting Mr. Bush himself. Not because I don't think him guilty, but because I think he could squirt enough ink into the water to convince at least one sympathetic juror to refuse to convict. Then we'd have a real disaster on our hands, because Mr. Bush would be vindicated in the eyes of posterity. Instead of being the most criminal President in American history, he'd go down as the innocent hounded by liberal witch-hunters."

Treating the "whole range of crimes" as a grand conspiracy with one great trial is a tactical error. If they are prosecuted (where thorough investigation shows good evidence) individually, the risks you mentioned are minimized. The crimes in this administration were not isolated in the oval office, and distributed & just punishment will be enough to deter future wannabes at all levels.

The strategic problem is the parallel but separate support for a bipartisan defense of the Constitution and rule of law, led by a new administration that supports partisan Democratic goals such as public health insurance.

I don't know how many people on this thread are lawyers, but I would like to point out that a lot of this discussion seems to revolve around the notion that there is a legal solution to what at bottom is a political problem. I am fairly confident that most lawyers familiar with suing government officials will tell you that without a smoking gun criminal offense (bribery or obstruction, for example) it is almost impossible to obtain a conviction for what might otherwise be called malfeasance in office. This is because most of the legal rules are written so that charges can't be brought for differences of opinion, and are written with the assumption that people in positions of authority will act in good faith.

So when a situation like this comes along, that's a reason to employ impeachment. It's a quasi-legal proceeding that also makes a political point, namely, that gaming the system is not permissible. The problem with impeachment is that absent either a smoking gun or a great enough majority it's difficult to get it to work. But that doesn't mean it shouldn't be tried. If nothing else, it could work as an investigatory vehicle.

Here's one important question to consider for those who support criminal invesigations: who would be investigated/prosecuted? Apologies if this is something somebody already mentioned; I don't have the time to read through the entirety of the comments here right now (I'd enjoy doing so later).

Anyways, going after top department officials or cabinet members (or presidents...) would look incredibly political and create a divisive firestorm that would distract from the actual issues at hand. It would be both easier politically and easier to prove if you went after the lower-level members of the organizations: the low-level commander in direct control of a black ops interrogation unit, for instance. But would that just be a repeat of Abu Ghraib, where the blame was shoved onto a few low-level scapegoats and the higher-level officers and political appointees who set the policy were left untouched?

Considering the difficulty of a lot of these questions, I'm not so put off by someone who doesn't want to get pinned down to any commitments on this matter before they're in office and have all the information.

Finally I'll note that we have so many problems that are going to confront the incoming president in '08: Iraq, further terrorism, finally making progress on curbing global warming, the bloated budget, entitlement overload as baby boomers retire, reforming a health care system which combines the worst of regulated and free market systems, and more. I think there is a pretty good case for not getting too bogged down in massive investigations and political controversies over that, since it would still time-critical action on many of those fronts. The best answer could well be to subtly lean on the DoJ to investigate while keeping most of the executive's attention fixed firmly on the future.

Here's one important question to consider for those who support criminal invesigations: who would be investigated/prosecuted? Apologies if this is something somebody already mentioned; I don't have the time to read through the entirety of the comments here right now (I'd enjoy doing so later).

Anyways, going after top department officials or cabinet members (or presidents...) would look incredibly political and create a divisive firestorm that would distract from the actual issues at hand. It would be both easier politically and easier to prove if you went after the lower-level members of the organizations: the low-level commander in direct control of a black ops interrogation unit, for instance. But would that just be a repeat of Abu Ghraib, where the blame was shoved onto a few low-level scapegoats and the higher-level officers and political appointees who set the policy were left untouched?

Considering the difficulty of a lot of these questions, I'm not so put off by someone who doesn't want to get pinned down to any commitments on this matter before they're in office and have all the information.

Finally I'll note that we have so many problems that are going to confront the incoming president in '08: Iraq, further terrorism, finally making progress on curbing global warming, the bloated budget, entitlement overload as baby boomers retire, reforming a health care system which combines the worst of regulated and free market systems, and more. I think there is a pretty good case for not getting too bogged down in massive investigations and political controversies over that, since it would still time-critical action on many of those fronts. The best answer could well be to subtly lean on the DoJ to investigate while keeping most of the executive's attention fixed firmly on the future.

I agree with Katherine pretty much on this, but I lay the locus of the blame not on Obama but on the media. I am left with the sinking suspicion that anything more confrontational on matters like this would be used to place Obama far far out in left field. Yes, I can be disappointed that he doesn't say what I want him to in the way I want him to, but I'm not really prepared to damn him for it because it may be more a result of the way the battle for the nomination is being framed than Obama's actual positions (which echoes rilkefan's point above)

You start with the cases of individuals involved in torture & you follow it up the chain as far as the evidence goes. There are cases they've gotten referred to, & ignored, where CIA agents tortured or killed a prisoner. There were 19 cases of suspected torture by civilians--CIA agents or contractors--referred to the Eastern District of Virginia. They haven't brought charges against any of them. I'm not sure they've done anything at all.

Defense officials are trickier--the low level people aren't subject to DOJ prosecution. But it's certainly possible to start investigating, say, Cambone, instead of Rumsfeld, regarding what he knew about abuses by Task Force 6-26.

Anyway, during the investigation stage it's kept confidential, & you don't have to identify the targets by name--in fact you're not supposed to. Doesn't anyone remember the Fitzgerald thing? Until there's an indictment it's all confidential. (That's actually why I prefer that there be a fact-finding commission in addition to whatever prosecutions--prosecutions are better as a deterrent but not as good at informing the public.)

No one is asking Obama to get involved in great detail in the investigations or in making these calls. That would be inappropriate & probably illegal. I am asking for the attorney general to drop all the relevant files on the desk of a U.S. attorney or special counsel, & say: investigate this. Investigate any further credible allegations of torture. Follow the evidence wherever it leads.

I've given examples of what kind of answers Obama could have given that would have satisfied me, or at least not convinced me NOT to support him. He might also have mentioned the current track record of not prosecuting civilians, & the possibility that DOJ's decisions not to prosecute have been politically motivated.

There seems to be a lot of flailing around looking for an excuse going on in this thread, which does not seem to reflect knowledge of how investigations & prosecutions actually work, or reflect knowledge of what the current DOJ has done with these cases. But obviously, I have a more personal stake in these issues than a lot of people--and based on this thread the gap between me & the typical primary voter is wider than I thought, & the situation is more hopeless than I thought.

lj, you know why this might be seen as a fringe position by the media? Because no Democrat is willing to say it.

Anyway, he's in a primary race, and he's losing, by a lot.

If we could get one of the major candidates to promise to try for some accountability, there would be pressure for the others to follow suit.

Jesus, give me a break. That's all it takes to "annoy" and "disappoint" you? Is it not enough for you that Obama would end the torture and surveillance? What do you want, Obama to announce that he will personally keep Bush under lock and key in the Lincoln Bedroom?

Mightn't we have a few bigger things to worry about in 2009? Maybe we should let Bush slink back into a hole instead of making a hero out of him with Conservatives? Do any of these things occur to you?

No, it's not enough for it to end in 2009 if it's going to start again in 2013 or 2017.

And, again, I am NOT SPECIFICALLY TALKING ABOUT BUSH. I am saying prosecuting one CIA contractor in Afghanistan and no other civilian, when combined with not seriously considering impeachment, is a sign that executive officials can do these things with impunity.

The utter ignorance & indifference on this thread are beyond depressing.

It's also not enough to elect a Democratic President in 2008, and ensure s/he takes office in 2009, if their reaction to the torture and surveillance is: "Okay, but I'll only use these Presidential powers which Bush has ensured the executive has for Good."


lj, you know why this might be seen as a fringe position by the media? Because no Democrat is willing to say it.

So it wouldn't be taken as a fringe position if a Dem were willing to say it?

I'm not disagreeing with what you note, but I think, after seeing the past two elections, there is a lot of brainsweat going into how the media will frame things, and I (sadly) think that it could impact the race. Some people have already suggested that there is an overwhelming desire on the part of the media to have a Clinton in the race so cutting and pasting would be an option. On my bad days, I think they have a point.

I don't think this is 'ignorance and indifference'. The quote is in a local paper detailing a local appearance. While the Charlotte Observer is, I am sure, a fine newspaper, no one else has picked up on that comment, suggesting that it is, at least in the minds of the media, received wisdom. Yet following it to the DU, I see someone saying that this means that Obama is giving the admin a blanket pardon. With friends like that...

Katherine, can you quote or point to the better statements made by Dodd and Edwards that give you confidence they will support investigations and prosecutions and cause you to support them instead?

Dodd & Edwards haven't ruled it out as far as I know; I don't actually know if they'd be better. What it's mainly causing me to do is not support anyone, because Obama keeps getting my hopes up, and then dashing them 10 days later.

What's annoying me about this thread is not necessarily the lack of anger at Obama --I have no problem with this response, for instance; it's totally plausible:

"I'm wondering if Mr. Obama got caught in the headlights a bit, didn't have this one mentally worked out in his new, improved, "assertive Obama" mode, and just reverted to his familiar and reflexive touchstone of "no conflict."

I'm also not annoyed at people not having seen the article, which is in an extremely obscure source. What I'm annoyed at is people mischaracterizing me as wanting Bush locked up in the Lincoln Bedroom; giving reasons for why this is impossible that are not, in fact, true; and acting like this is a petty concern.

Out of curiousity, has anyone posting here ever heard of Mark Swanner?

I'm confused by the people who seem to be claiming that NOT investigating the many crimes of the Bush administration would somehow cause the Republicans in Congress to be more reasonable. Because they've shown no signs of being reasonable or anything for the past 14 years, why would letting Bush and Cheney literally get away with torture make them less likely to try that kind of thing again?

Nate: I'm confused by the people who seem to be claiming that NOT investigating the many crimes of the Bush administration would somehow cause the Republicans in Congress to be more reasonable.

Seconded.

Dodd has suggested defunding OLC if they don't release the memos.

Katherine, I share your disappointment, and have had similar responses to Obama. As for prosecutions, as was noted upthread, failing to prosecute Nixon, and the Iran-Contra gang, are exactly what has led to the lawlessness and contempt for the rule of law that so characterizes the present administration.

So, yes - investigations should take place, and everyone who is culpable, regardless of party (i.e., if there is clear evidence that leading Democrats knew about torture and/or other crimes while claiming not to), should be held accountable. Period.

Mark Swanner: the name seemed familiar, but I had to Google him. Murders a prisoner during interrogation, but no charges. Lovely.

Eras, You're also making a rather large error by treating impeachment as the same as a jury trial. It is not a criminal prosecution. The violations for which impeachment is contemplated do not have to meet the definition of criminal offenses, nor are the standard required for 'conviction': Juries must be unanimous, conviction on impeachment offenses requires only 60 of 100 votes.

And the investigative clout of impeachment proceedings is vastly greater than that of ordinary Congressional committees (as someone already pointed out above).

The idea that massive lying, negligence, corruption, stonewalling, dereliction of duty, conversion of the justice system (and other executive agencies) to partisan tool, and establishment of a policy of torture and surveillance of American citizens can't be touched, now or after the election of a Democratic president, unless we have a near-perfect chance for conviction, is simply wrong.

Morally wrong, factually wrong, politically wrong, constitutionally wrong. And cowardly and weak.

Nell, conviction requires a two-thirds vote, not three-fifths.

Nell: "Morally wrong, factually wrong, politically wrong, constitutionally wrong. And cowardly and weak."

You might want to note that the above is only aimed at politicians, not any commenters here.

Maybe Obama just needs to get off the campaign trail for a bit. He’s said some weird things lately. Maybe he’s just tired and needs a break and he’s just not getting his thoughts out clearly.

"Maybe Obama just needs to get off the campaign trail for a bit."

Hard to do without getting jumped on by his opponents' more partisan supporters or (more likely) the media.

@KCinDC: Yes, you're right, sorry: 67 votes.

@rilkefan: The 'cowardly and weak' part is directed at the pols. The rest is for us all. If the posting rules prevent me from saying when I think a position is morally wrong, I'll be off.

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