Division

by hilzoy

CharleyCarp makes a very important point about prosecuting Bush administration officials for making torture US policy:

"The people who think prosecution of these people is too divisive need to take into account their continuing conduct. They are trying to sow division right now. I'm not saying we should give in to them, but at a certain point holding back to preserve societal consensus isn't on the menu."

I think this is absolutely right. I do not think that we ought to fail to prosecute Bush officials because it would be divisive -- I think that upholding the rule of law is more important than avoiding divisiveness, and besides, since any prosecution of high administration officials is always divisive, this principle would seem to me to imply that no high official should ever be punished for breaking any law. I think this would be disastrous. I also hate the idea of a double standard for the powerful and the powerless.

That said, some people, possibly including our President, do seem to think that it is important to avoid divisiveness. Anyone who holds this view ought to consider whether there is anything that, say, Dick Cheney might do that would render this consideration beside the point.

I don't mean to suggest that we should prosecute administration officials because they seem to have nothing better to do with their time than accuse the present administration of willfully sacrificing American security. My argument all along has been that we should make the decision whether to prosecute on purely legal grounds; prosecuting people for being complete pains would be obviously abhorrent. 

The point is rather that if one were already convinced that someone did deserve to be prosecuted, but were holding back in order to avoid divisiveness, there ought to be some point at which that impediment to prosecution ceases to carry any weight. And it's worth asking where that point is.

Of course, were the administration to decide to prosecute high administration officials who had been criticizing them, that would carry political dangers of its own. (I have wondered whether Cheney is as outspoken as he is precisely to make it seem plausible that any prosecution of him would be an attempt to silence an administration critic.) 

That's why I have been in favor of appointing a special prosecutor from the get-go. Find someone of unimpeachable integrity, appoint him or her as a special prosecutor, make him or her completely independent, and let the chips fall where they may. 

Comments

[Hartmut]

Since the usual suspects would/will cry 'witch hunt!' independent of circumstances (unless somebody found out that Cheney actually practiced witchcraft maybe ;-) ), it should not influence the decision anyway. Faux Noise and accomplices have already made torture acceptable or even desirable to a nonnegligible fraction of the population. About the only way to reverse that, is to shine as bright a light on the truth as possible => in-depth investigation plus consequences.
---
Vaguely related, it could be a two-edged sword, if Hannity and other apologists would indeed allow themselves to be tortured. They could use it afterwards to claim that it might have been torture but that a) it did not cause them any longterm harm and b) it was very effective (because they did not last more than a few seconds). On the other hand it would be ironic, if one of them would die as a result. Cardinal, tie him to the rack!

[Doctor Science]

Patrick Fitzgerald is the person the center-left-o-sphere (e.g. kos) seems to like. I have no idea if there's anyone else who would be as good, and zillions who would be worse.

[Warren Terra]

Patrick Fitzgerald is the person the center-left-o-sphere (e.g. kos) seems to like. I have no idea if there's anyone else who would be as good, and zillions who would be worse.

Fitzgerald has seemed impressively zealous in nonpartisan in his various prosecutions of Democrats and of Republicans, and given the memory of the Starr investigation the refusal of his team to leak was extremely impressive and gratifying.

That said, what I want to see here, even more than prosecutions, is revelations. I want to know who made what decisions, who acquiesced to them, etcetera. My one major complaint about how Fitzgerald handled the Libby case was that he approached it with a very narrow focus on his role as a prosecutor of criminal actions, and did not consider himself responsible or even able to make accusations or revelations of acts that he felt unable to prove were criminal or for which he might not be able to convince a jury to convict. In particular, Fitzgerald felt that his duty did not require or even permit him to release a report detailing his findings, or any other information beyond what he presented in the courtroon during the Libby case.

Now, I believe Fitzgerald was sincere in believing that the description of his role did not include releasing any information not used in the course of an actual prosecution. But it does mean that if we were to employ Fitzgerald, or any similarly principled individual, we had best make sure that such disclosure is explicitly stated to be a vital part of the undertaking.

[von]

A pragmatic question and then a political one:

What if folks are prosecuted but acquitted? (A point one of Andrew Sullivan's readers made a week-or-so-ago.) The legal system is unpredictable. What harm to the US's reputation does that do?

What if it turns out that Nancy Pelosi and others in the senior Democratic leadership ('tho, presumably, not Obama) are targets of the investigation and/or prosecuted. The first part -- investigation -- is highly likely with regard to Pelosi, who now appears to have been much more involved in the formulation of policy than she previously let on, and may still be misstating her role. Before the reader gets on a high (moral) horse, consider what such investigations and prosecutions would do to the country's business, including Obama's agenda. There will be paralysis. (Remember Lewinsky.)

I'd be happy to see Pelosi neutralized and the Democratic agenda stalled. Would you be? Would Obama? (That's the real reason why there won't be an investigation: It's not in Obama's interest.)

[John Spragge]

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

My reading of this passage suggests that an insistence on flouting the law with impunity, or even an insistence on the right of members of one's own political faction to flout the laws, does not fit the definition of a patriot contemplated by the constitution. The constitution that George Bush twice swore to uphold, and Dick Cheney has repeatedly sworn to "support and defend... against all enemies, foreign and domestic" makes justice one of the basic values of the United States. An American patriot may not always keep the law; patriots have more than once defied the law in the name of justice. But no patriot flouts the law. No patriot demands impunity for offences. No patriot chooses to sow public division and dissension as a means to avoid standing before the bar of justice and facing their accusers.

If the men and women who stand accused of crafting policies of torture and degradation consider themselves honorable patriots wrongly accused, they should welcome the opportunity to stand up in court, face their accusers, and clear their names. By all means, let us have an impartial authority, a prosecutor of know impartiality or, better yet, a grand jury investigate the allegations.

[CharleyCarp]

Von, I don't think anyone has to worry about a DC jury acquitting Dick Cheney. The whole Pelosi thing is a red herring of the fishiest variety. Even if they told her everything they were doing down to the most minute detail, that doesn't make her legally culpable. She doesn't confer criminal immunity, and as much as the torture apologists would like to insist otherwise, this isn't a political issue (in the sense of criminalizing political differences) such that sign off by the other side confers political immunity (like Tip O'Neill agreeing to Social Security reform).

I'm not on the 'prosecute them now' side of the question, but certainly there can't be any 'moving on' without a complete accounting.

(Note: I was recently in court looking to enforce the Third Geneva Convention, which is being violated every day. Government admitted that 3GC applies, but said that the proper remedy was criminal prosecution. O rly? When?)

[liberal japonicus]

von, Obama is not Clinton so invoking Lewinsky paralysis seems a bit concern trolling-ish (no disrespect intended, but I'm hard pressed to find another descriptor) And your description makes it sounds as if Nancy was holding the watercan rather than being someone subject to a number of famously stringent restrictions on that information. I recall Jay Rockefeller having to send a handwritten letter of protest about the wiretapping because of the restrictions he was subject to and I don't think that level of secrecy was a one-off. So I hope this is not moral high horsery to say open it all up, and let the chips fall where they may.

[bobbyp]

"There will be paralysis. (Remember Lewinsky.)"

-von

Yes, I remember that time. Gravity ceased. Matter disintegrated. It was a miracle any of us survived.

[von]

Von, I don't think anyone has to worry about a DC jury acquitting Dick Cheney.

I agree that a DC jury is going to be pro-prosecution, but I think that you're a bit blinded by your belief in your case. Even assuming that the jury's verdict is a foregone conclusion -- which is assuming too much -- the case against Cheney could get transferred (same confidence with a Casper jury?); it could go out on a pre-trial motion; it could go out on a post-trial motion; it could be blocked by the states secrets privilege; it could be reversed on appeal; etc.; etc.

The whole Pelosi thing is a red herring of the fishiest variety. Even if they told her everything they were doing down to the most minute detail, that doesn't make her legally culpable.

1. Red herring on the criminal side or not, Pelosi will be a political sideshow. The political fallout -- That's the point, and why I suspect that Obama will do everything he can to avoid naming a special prosecutor.

2. As for the criminal issue, your broad defense is not evidence based. We just don't have the evidence to know what Pelosi's role was, and can't evaluate a potential case against here. But we do know that, contrary to some of Pelosi's prior statements, Pelosi was informed of exactly what kinds of "enhanced" techniques would be (and were being) applied. We also know that the purpose of consulting Pelosi and other Congressional leaders was to get their at least implicit approval for the Administration's actions. There is enough here to lead any special prosecutor -- particularly Patrick Fitzgerald, who will chase down every hare -- to dig a lot deeper.

[John Miller]

A couple comments in regard to von's comment.

Regarding pelosi, to say she was involved in formulation of policy is going more than a little too far. Was she aware of what was happening maore than she admitted to? Possibly, and hopefully we willfind out. Right now there is ambiguity on that subject. But there is no evidence that I have seen that she was involved in the formulation of the policy.

The second comment he made (although citing Lewinsky was a little irrelevant and semi-trollish) has some pertinence. Obama has some very important things he wants to acoomplish this year, notably health care reform. A major fight over prosecutions, st this stage, would IMHO cause a major set back in that. Also, there is no statute of limitations on war crimes, so that could be put off for a while.

I do think, or at least hope, this is part of Obama's calculations at this point. Letting things out a piece at a time helps create a climate where things would seem to the populace to be less political. This is almost the opposite of desensitisation taking place.

[von]

Yes, I remember that time. Gravity ceased. Matter disintegrated. It was a miracle any of us survived.

This is a really silly response. Do you recall Clinton passing any major initiatives why the Lewinsky mess was going on? (He also had problems acting on the international stage, as I'm sure you'll recall, due to the "wag the dog" assertions.)

[russell]

"That's why I have been in favor of appointing a special prosecutor from the get-go."

100% right on.

"Patrick Fitzgerald is the person the center-left-o-sphere (e.g. kos) seems to like."

Seconded. If he's not available, let him be the template for an appropriate candidate.

"That said, what I want to see here, even more than prosecutions, is revelations."

This is a good point. Perhaps criminal investigation followed by public airing of findings?

"What if folks are prosecuted but acquitted?"

Better luck next time.

"What harm to the US's reputation does that do?"

That horse is out of the barn. Any credible investigation, regardless of outcome, will only help.

"What if it turns out that Nancy Pelosi and others in the senior Democratic leadership ('tho, presumably, not Obama) are targets of the investigation and/or prosecuted."

We'll write to them in jail.

"I'd be happy to see Pelosi neutralized and the Democratic agenda stalled."

The "Democratic agenda" isn't dependent on Pelosi or any other individual. If they did the crime, they should do the time. The "Democratic agenda" will be just fine.

Look, the whole "moving on" thing is nonsense. When people say "moving on", what they're actually saying is "we don't want to deal with this". There is no moving on until there is a clear and factual accounting of what happened (and is still happening), including a clear assignment of responsibility to decision makers and other actors. And "responsibility" includes whatever legal or other sanctions are appropriate.

Without that, "moving on" doesn't really have any meaning. On the contrary, it establishes the precedent that the law can be broken and power can be grossly abused with no consequence.

"Covering up" is not "moving on".

[Johnny Canuck]

Throughout 2008 I was repeatedly amazed by Obama's sense of timing and appropriate response. Time and again I was sure he should counterattack more vigorously, or simply counterattack rather than ignore. Finally I came to the conclusion that Obama's ear for what was appropriate was consistently better than mine. (This was a great shock.) I trust Obama: if he thinks it can be done, he'll do it when the time is right.

He has taken so much onto his plate. Let him clear a few things off the plate first. Don't allow Republicans in Congress to have an excuse to paralyze.

I don't think Obama's political capital is going to be used up. I think he is going to become more popular.

Any prosecutor needs to be seen as scrupulously non-partisan. If Fitzgerald is the consensus choice he will be seen in an even better light when he has completed the Illinois prosecution.

Let Obama close up Guantanamo and deal with the inmates- many have been waiting for justice since 2002. It will be interesting to learn what numbers are released because there is little/no evidence against them. If it comes out that there are really only a handful of dangerous men this is going to make Bush/Cheney appear in an even worse light.

Don't forget, but "let patience have her perfect work"

[von]

von, Obama is not Clinton so invoking Lewinsky paralysis seems a bit concern trolling-ish (no disrespect intended, but I'm hard pressed to find another descriptor)

I'm hard pressed to figure out what the heck you mean. Even if the investigation of the former Administration is limited solely to former Administration figures, it will paralyze Washington, DC. It will suck nearly all the oxygen out of the air. It will mean that it will be more difficult to get everything done, including domestic and foreign matters.

Do you think otherwise? Really, I'd like to hear the version of events in which the former VP and President get prosecuted and everything hums along normally in DC.

p.s. "A concern troll is a false flag pseudonym created by a user whose actual point of view is opposed to the one that the user's sockpuppet claims to hold. The concern troll posts in web forums devoted to its declared point of view and attempts to sway the group's actions or opinions while claiming to share their goals, but with professed "concerns". The goal is to sow fear, uncertainty and doubt within the group." http://en.wikipedia.org/wiki/Internet_troll

I have no idea whatsoever why you think it applies to me, who has always been upfront in his views.

[Point]

"[I]f one were already convinced that someone did deserve to be prosecuted, but were holding back in order to avoid divisiveness, there ought to be some point at which that impediment to prosecution ceases to carry any weight. And it's worth asking where that point is."

This may be completely irrelevant to the circumstances being discussed*, but I actually think it depends on the level of divisiveness. Prosecuting a person for past conduct can conceivably lead to civil war or domestic terrorists popping up across the country, if said persons are numerous enough and see the act as a sign of the government's illegitimacy.

If the prosecution seeks to disincentive people in similar circumstances from committing these crimes again, then the damage done to the country makes such disincentive besides the point. And if the prosecution seeks simply to hold said person to account, it is manifestly immoral to put such a quest above the well-being of the country.

If, on the other hand, all we have to worry about is a bunch of hard core conservatives whining for a few years, we're pretty much stuck with that anyway. But something tells me prosecuting Dick Cheney or John Yoo would look more like the first scenario...

*Or, then again, given the conservative rhetoric, maybe not.

[von]

Look, the whole "moving on" thing is nonsense. When people say "moving on", what they're actually saying is "we don't want to deal with this". There is no moving on until there is a clear and factual accounting of what happened (and is still happening), including a clear assignment of responsibility to decision makers and other actors. And "responsibility" includes whatever legal or other sanctions are appropriate.

You can have disclosure without a special prosecutor.

[von]

The second comment he made (although citing Lewinsky was a little irrelevant and semi-trollish) has some pertinence.

John Miller, since you largely agree with my conclusion, I'm interested in why you think that citing Lewinsky is "a little irrelevant and semi-trollish." I cited Lewinsky for its effects, not its contents. Lewinsky was a huge legal proceeding and the only thing that folks talked about for nearly a year. It seriously derailed the presidential agenda. Why is it trollish to cite back to this history as an example of the likely effects of prosecutions of VP Cheney and others? (I'm genuinely curious.)

[cleek]

On the contrary, it establishes the precedent that the law can be broken and power can be grossly abused with no consequence.

that precedent is old enough now where moving on after a president has broken the law is a stare decisis et quieta non movere situation.

[hilzoy]

If they are acquitted by a jury of their peers, my reaction will depend on the evidence. It won't be worse than the acquittal of OJ Simpson, which puzzled me, but seemed to me much, much better than having said: hey, he might be acquitted, so we shouldn't even try to prosecute him.

Like others, I don't see that Pelosi's involvement goes beyond having been told. If I'm wrong and she is somehow criminally liable, then she ought to go down. I have said this about every Democrat who has been plausibly accused of wrongdoing, and I see no reason to change now.

[liberal japonicus]

Well, I did say that I was hardpressed to find the right term, but from here (if the link stays)

A person who posts on a blog thread, in the guise of "concern," ...by pointing out that posters and/or the site may be getting themselves in trouble...

As I said, the comment was concern trollish, not that you are a concern troll. But the idea that we should move carefully because we might trip up Obama's agenda is a classic concern troll point because it is designed to appeal to something that you care not one whit about. Yes, you are upfront with your disdain for a Pelosi agenda (which is? what precisely has Nancy Pelosi put forward that you find so unsupportable?) but the comment is less about what you think and more about playing on our concerns. If you really are so concerned about this, I think you should worry less about folks like us and more about the fact that Cheney is doing is best Jack Nicholson/Col. Jessup impersonation on the airwaves.

I will also pass along this Cohen piece, where he places himself on the pivot, saying that he is waiting for some evidence of Cheney being right. It's a classic Beltway pundit move that allows him to assure both he and his readers that he is not a wild-eyed anarchis stirring up trouble, but someone who will finally, at the end of the day, sadly conclude that Cheney will deserve whatever he gets (if prosecutions happen) This is not to think that they will or they won't, I can't really get the zeitgeist on this.

At any rate, I would be much more interested in why you think this would be such a bad idea, since you are invested in the idea of holding up any Democratic agenda, and so, by your reasoning, a nice show trial should be just the ticket. Are you worried that, like Scooter Libby, true American patriots like Cheney, Bush et al are being scapegoats? Or is it that a trial might make the neocon/realpolitick view that I believe you have claimed untenable for at least the next decade?

[John Miller]

von, Lewinsky was not, by any stretch of the imagination, the only thing that prevented Clinton from being able to do a lot. From the very beginning the right was accusing him of all sorts of things. Starr hit upon Lewinsky almost by luck, but there was already enough other crap being flung around, all either irrelevant or made up but taken seriously by the liberal media, that he was effectively hamstrung.

Note that most of what he did accomplish was not really of a progressive natuiure, but more to mollify the Republicans. At least you also mentioned the "wag the dog" trope. The point being, throwing Lewinsky in there was unnecessary. You could have pointed to the whole 8 years and the foolishness of the right.

Of course, that is what the right (at least the establishment side) has been best at. Avoiding issues and just being obstructionist and they will continue to do so. But Obama, I hope, is waiting for the public to see what he already sees. It is already obvious that the right is not having much success tearing him down and are showing their dark underbelly so much that when they do cry "witch-hunt" it won't resonate that much.

As a total aside, I was remembering yesterday, when there was discussion of Cheney's comments about Powell and Rush, how it wasn't that long ago (about one year) when there was a lot of discussion about Rush's influence on the Republicans. May of the more conservative commenters here disputed that he really had much influence at all, that he was just an entertainer and really not much more in terms of the actual Party. I was wondering if those same commenters feel that way now.

[wj]

Maybe a formal investigation/prosecution is not happening at the moment to "avoid divisiveness." Then again, maybe Obama is simply repeating what looks to be a habit of his: giving an opponent enough rope.

If we had a formal investigation happening, would we have had Cheney (among others) making all the public statements he has been making? No way -- if his lawyer had to gag him physically. But without that investigation (yet), a lot of those who will be its focus are busily digging themselves deeper and deeper.

At the current rate, but next winter we will have seen:
- a lot of demands from potential defendants for information to be made public. Which means they will be hard pressed to demand that it not be released.
- an accumulation of releases of information, much of it improperly classified previously, which can be used to build a case.
- an accompanying growth of a broad concensus that prosecution is not only reasonable but desirable.

At which point, rather than a "witch hunt", we may well see a (nominally reluctant) series of prosecutions start. And with much less room to claim "politically motivated."

And we may also see those politicians, like Pelosi, who were complicit but not criminally liable, suddenly facing serious prospects of not being reelected. Which, after all, is the only effective punishment when criminal ones are not available.

[Hartmut]

Let's see, how the SCOTUS fight develops (primary test case). If, what I expect, the GOP will go for total war, then the question of 'divisiveness' is irrelevant anyway. If it runs smoothly (imo fat chance), then proceeding at the current pace with patient release of more and more info seems to be the right way to me.
The important thing is that the 'liberal' media is prevented from sweeping it under the rug. The topic must remain in the public eye as long as possible and the torture apologists/perpetrators given every chance to talk themselves into hot water and out of the last vestiges of respectability. It becoming 'old news' would be the death of any accountability.
On the topic of whether it could end in aquittals (in the US) I would remind everyone that that would be the prompt for the ICC. And it can't damage the US image more than it already is, I think.
If Democrats are involved that could be seen as a feature (I doubt that 'bipartisan witch hunt' will catch on even at Faux) and 'extraordinary rendition' by Clinton&Co would be a legitimate target for investigation in the context of torture.
---
Cynic's 2 cents: Since Obama will be assassinated whatever he does he should feel free to do the right thing.

[russell]

You can have disclosure without a special prosecutor.

Both, please.

that precedent is old enough now where moving on after a president has broken the law is a stare decisis et quieta non movere situation.

Yeah, and look where it's brought us.

I recognize that pursuing a criminal investigation wherever it leads will inevitably turn into a political circus. Actually, a political freak show.

It will get in the way of other, really important pieces of business.

But it is, itself, one of the really important pieces of business to pursue.

We've already had a number of fact-finding investigations for a variety of things related to 9/11, Iraq, etc etc etc. They've been interesting, but they haven't done much, if anything, to provide an effective, institutional curb on the kind of lawlessness we saw under Bush.

Right now it appears that we don't torture, don't operate offshore black sites, etc. That's because it happens to be the position of the current President that we not do those things.

He'll be there for four years, maybe eight. His successor may think differently. He, in fact, may find during the course of his time in office that emerging circumstances make the use of torture or black sites kind of compelling, and maybe he'll change his mind.

There's little if anything to prevent that right now.

My personal view, based on living through Nixon, Reagan, Bush I, Clinton, and Bush II, is that if a clear legal line is not drawn -- a *legal* line, not a policy line -- torture, renditions, black sites, the whole shooting match will be back within ten years.

I'd put money on it.

Send people to jail, disbar them, throw them out of office. Make them pay. Not because we want revenge, but because it makes the consequences of breaking the law tangible in a way that compels respect.

If someone had hung for outing Valerie Plame, we'd be operating in a different environment. And hanging would not have been a particularly outrageous punishment.

Let this stuff go by in the name of "moving on" and we won't move on at all. It'll be back within a decade.

And if all of this isn't enough to light a fire under our behinds, I think we're past some kind of tipping point. There's really not that much further down to go.

[Porcupine_Pal]

...what to do....what to do....is a puzzlement.

Cheney is making it more and more difficult to avert either a truth commission or special prosecutor. He is too cowardly to address an examination of the facts, preferring to strike from behind the slowly vanishing cloak of 'national security'. (An expected approach from a torturer.)

But this situation will not abide.

[Ugh]

is that if a clear legal line is not drawn -- a *legal* line, not a policy line -- torture, renditions, black sites, the whole shooting match will be back within ten years.

This is exactly right. If Nixon had spent a few years in federal prison, the Bush/Cheney clowns would likely have been more cautious. Instead, Ford pardons him and we get Bush/Cheney and torture, secret prisons, detention of american citizens without due process, a horrible war based on lies, etc. If these clowns aren't at least prosecuted then I hate to see what happens the next time the GOP gets into power.

Because next time, it will be people like Monica Goodling and Bradley Schlozman and Michael Goldfarb who are in charge. People who think it is their mission in life to serve the GOP and to use all the powers of the federal government to that end, law or no law. And those people will have no compunction using that power to persecute and prosecute their political opponents.

And von, I do remember Monica Lewinsky, and a bunch of GOP representatives and senators somberly telling all of us that this was about "rule of law! rule of law! rule of law!" Apparently, they didn't mean it. And one would think that the fact that a lockstep GOP controlled the House for 6 of Clinton's 8 years might have had something to do with him not being able to advance his agenda.

[cleek]

And if all of this isn't enough to light a fire under our behinds, I think we're past some kind of tipping point.

it isn't. we are.

$0.02.

[Ugh]

von: But we do know that, contrary to some of Pelosi's prior statements, Pelosi was informed of exactly what kinds of "enhanced" techniques would be (and were being) applied.

We do? Last I saw there was a document that claimed that she was briefed on the torture techniques, but not whether they had or would be used, no to mention the fact that that document was itself based on recollections of CIA personnel after the fact and CIA has already acknowledged that it may not be accurate.

Oh, and the fact that Pelosi might be caught up in all this is a feature for Obama, not a bug. Hard for people to cry witch hunt or criminalization of politics if the Democratic Speaker of the House goes down too.

[von]

Oh, and the fact that Pelosi might be caught up in all this is a feature for Obama, not a bug. Hard for people to cry witch hunt or criminalization of politics if the Democratic Speaker of the House goes down too.

But that's exactly why an investigation (likely) won't happen. Obama's first goal is to pass his agenda. Unless there is a clear, strong replacement for Pelosi -- and I'm not aware of one -- Obama's first goal is in conflict with what has to be a secondary goal: prosecuting folks who permitted/endorsed torture.

I am in favor of getting the facts out. I am in favor of clear rules that bar torture in the future. I strongly suspect that we will see a lot more blood on the hands of the Democratic leadership. But you didn't need a criminal prosecution of Nixon to make him a pariah and ruin his reputation, despite having done some genuinely praiseworthy things. It strikes me that Cheney and Yoo, in particular, are headed in the same direction. They are already irrelevant to the debate, and the only reason Cheney keeps on making news is that he keeps on acting like an ass.

[russell]

Obama's first goal is to pass his agenda.

Whether a criminal investigation, or any other kind of investigation, proceeds is not and should not be up to Obama.

Obama's role should be to stay the hell out of the way.

I strongly suspect that we will see a lot more blood on the hands of the Democratic leadership.

Whatever.

It strikes me that Cheney and Yoo, in particular, are headed in the same direction.

The difference between Cheney and Nixon is that Cheney gives no sign of giving a crap what anyone thinks of anything he does or says.

Nixon had some regard for his place in history, and I think the shame of being forced from office was something he felt deeply.

If Cheney ever goes down for anything he's done, he'll spit in the eyes of both judge and jury on his way out.

Rule of law is for weaklings and lesser folks than Richard B. Cheney.

Cheney will go to his grave believing not so much that what he did was right, but that "right" and "wrong" are irrelevant and childish concepts that do not and ought not apply to serious people like himself.

The purpose of pursuing this stuff is not to punish Cheney because he won't give a damn either way. The purpose is to make it clear to ourselves and to the rest of the world that guys like Cheney won't be tolerated.

So yeah, Cheney is actually extremely relevant to the debate.

To be honest, I think cleek's two cents are on the money. The fact that the conversation is even on the terms it is on -- "but what if torture works?" -- tells me we're f**ked.

Thanks -

[Tony P.]

Warren Terra made the key point first: revelations are even more important than prosecutions. Enough of the omerta. The fetish of secrecy in national security matters is what enabled torture in the first place.

Von's concern-ish musings about Pelosi would carry more weight if "briefings" to congressional leadership were not, in practice and effect, tantamount to whispering secrets into the ear of a corpse -- and calling it oversight.

My own pet peeve is the recourse to "special" prosecutors and to "commissions" for every bit of heavy lifting. We have a Congress, we have a DOJ. We pay them honest money. Let'em work for it.

--TP

[hilzoy]

" I am in favor of clear rules that bar torture in the future."

Why have rules if there's no penalty for breaking them?

[Turbulence]

Let's assume the government briefed Pelosi on torture. What exactly should she have done? Resign her seat? Refuse to fund the CIA? Talk to a reporter? I'm really curious what actions Pelosi could have taken that were (1) not illegal and (2) likely to be effective. I'd be delighted if everyone involved in torture was legally hammered to the fullest extent of the law, no matter what party they belong to, I'm just not sure what Pelosi was supposed to have done.

And don't we already have clear rules that bar torture right now? Is the CAT really so vague?

[Gary Farber]

"Find someone of unimpeachable integrity, appoint him or her as a special prosecutor, make him or her completely independent, and let the chips fall where they may."

We need to be campaigning for a revival of an independent counsel law, first, then. This meanwhile isn't possible under current law.

[Sebastian]

"I am in favor of clear rules that bar torture in the future."

Like the recent MP expenses scandal (which if you haven't been following is really an excellent example of probably legalized corruption) this really isn't a problem of clear rules.

One of the very insightful conservative (and heaven knows it should be clear I don't mean Republican) critiques of modern society is that it is overly legalistic. The letter of the law can't stomp out every single last possibility of corruption nor can it stomp out every single possibility of torture. What we need to do is to foster an ethos where torture is not allowed. There should be laws in addition to that, but the actual societal understanding is much more important in the long run.

I haven't thought about it deeply, but I think a trial of some of the most hands on decision makers could help shape that ethos. So I'm tentatively for that.

I'm also a little mindful of the idea that a trial, handled poorly, could damage the ethos I want. So I'm certainly welcome to ideas about how to handle it well.

[Gary Farber]

A few weeks ago someone here linked to a counter-intuitive piece pointing out all the reasons why a special (non-indpendent) prosecutor on torture at this time would be premature: it included such facts as that an official investigation for now would enable everyone involved to assert to any public investigation that they can't comment due to an ongoing criminal investigation, and for the matter to be buried for years while the investigation went on, while meanwhile no investigation could actually be independent.

I later linked back to the piece, because it seemed to make very valid points that no one else was debating.

Unfortunately, I can't recall who wrote it (a former prosecutor with a lot of credibility, though), or who originally cited it here, and I can't easily find it again. Anyone else remember the piece I'm talking about?

[PeorgieTirebiter]

...seeing the herd of cows grazing off in the distance, the young bull became excited, insisting they charge down the hill and tap one. The older, wiser bull called Obama, counseled patience, "let's walk down the hill... and screw them all."

[Porcupine_Pal]

George Tirebiter?

[Nell]

Gary, you're probably thinking of the piece by Elizabeth de Vega, linked by me.

It's my very confidence that Holder will not name a special counsel in the next 18 months that makes me not feel particularly pressed to address de Vega's legitimate concerns, which have to do with amassing enough evidence to make convictions likely.

[hairshirthedonist]

Why have rules if there's no penalty for breaking them?

New rule: No more commenting on this or any other thread. I look forward to the new regime of keyboard silence. Rules are rules after all.

[PeorgieTirebiter]

Porcupine Pal,

You're must be thinking of George Leroy, my old man. He's upstairs with Porcelain, the maid. And yea, my shenanigans cost him the election. I'll let him know you inquired.

[Ugh]

Let's assume the government briefed Pelosi on torture. What exactly should she have done?

I think she could have made a speech on the House floor announcing, in detail, what the Bush Administration had told her and her strong disagreement with that practice. She might have then been kicked off the intelligence committee, but I think the speech & debate clause would have protected her from prosecution, no?

[Nell]

@Turbulence:

Some of the things Pelosi and any of those members of Congress who were briefed could and should have done if they were indeed briefed on torture tactics (which I consider probable but unproven; questions about the briefings should absolutely form part of any investigation, for prosecution or not):

- Asked to see the Presidential finding that should have accompanied the undertaking of such actions.

- Asked to see the Presidential statement explaining why only the 'gang of eight' or 'gang of four' were being briefed, rather than the full committees (such a statement is supposed to accompany any instance of reduced briefing).

- Asked to see the OLC memos that purported to bless the legality of the tactics.

- Made noise about lack of above documents if they were not promptly supplied.

- Asked for further briefings (from FBI, for instance) to clarify questions raised by the CIA briefing.

- Registered objections in writing. (Rep. Harman is said to have done so.) "Papering the file" might have been seen to be pointless in terms of changing the behavior of the executive branch, but not in terms of fulfilling the oversight role and a commitment to the law.

Failing to do these things in 2002 and 2003, when the briefings supposedly were given, was not a good thing. Failing to do these things in 2004-5, when the fallout from Abu Ghraib made it clear that torture tactics migrated through all U.S. detentions, that prisoners had been tortured to death, that people innocent of any connection to terror had been imprisoned and tortured, and that only the lowest-level GIs were going to be held accountable -- that's worse.

[Nell]

Much of the above is informed by the contributions of commenters at Emptywheel, particularly Mary, a lawyer who follows these issues as closely and intelligently as anyone I've read.

[Gary Farber]

"Gary, you're probably thinking of the piece by Elizabeth de Vega, linked by me."

Yes, that's it. I thought I recalled it was Truthout, but a cursory search didn't find it. Thanks, Nell.

[Nell]

Ugh is correct, and that would be the ultimate response, something I wouldn't expect any member of Congress to do until they'd at least explored other avenues of getting a grip on the facts and legality of what the executive had done.

There is very little evidence that any of those briefed explored any of these avenues, but in the absence of a real investigation it's also not possible to state categorically that all of them failed to do so.

To the extent that Pelosi is exposed to legal jeopardy, so are all the Representatives and Senators who were likewise briefed. I am baffled by not hearing any of the same concerns on behalf of Sens. Reid, Lott, Rockefeller, Roberts, or Shelby, not to mention former Rep. Porter Goss and current ranking member Rep. Pete Hoekstra (chair of the HPSCI when the tapes were destroyed, for instance).

[Ugh]

I am baffled by not hearing any of the same concerns on behalf of Sens. Reid, Lott, Rockefeller, Roberts, or Shelby, not to mention former Rep. Porter Goss and current ranking member Rep. Pete Hoekstra (chair of the HPSCI when the tapes were destroyed, for instance).

Because the GOP thinks that the lefty portion of the Democratic base loves all things Pelosi and thus, if she were implicated somehow, the GOP thinks the matter will be dropped. That and they know that being informed that the executive branch is committing war crimes and doing nothing (in part because the same executive branch might charge them with a crime) is not criminal.

It's just a blathering Drude-esque talking point, "Pelosi Knew!", ergo it must have been okay to torture.

[Porcupine_Pal]

Peorgie-

Well, I'll let you two boys fight this one out.

[Gary Farber]

"She might have then been kicked off the intelligence committee, but I think the speech & debate clause would have protected her from prosecution, no?"

I think she could have been expelled from Congress.

It would also be a violation of one's oath:

[...] (d) Oath.
(1) Requirement. Before any Member of the Committee, or the Committee Staff, shall have access to classified information, the following oath shall be executed:
“I do solemnly swear (or affirm) that I will not disclose or cause to be disclosed any classified information received in the course of my service on the House Permanent Select Committee on Intelligence, except when authorized to do so by the Committee or the House of Representatives.”

There are provisions for notifying the whole House of secret information, but the Committee has to vote to do so. Of course, if only the ranking members have the information, the committee would be hard put to do so.

[Nell]

the GOP thinks that the lefty portion of the Democratic base loves all things Pelosi

Wow, they're more ignorant than I thought. The lefty portion of the Democratic base has been seething for years over her taking impeachment off the table and organizing the FISA cave (just for starters).

[Gary Farber]

"The lefty portion of the Democratic base has been seething for years over her taking impeachment off the table and organizing the FISA cave (just for starters)."

But she's from San Francisco! Where all teh gay is! That makes her a communist!

Doncha know.

[Nell]

But she's from San Francisco! Where all teh gay is! That makes her a communist!

Heh.

Hard to maintain that view from at all up close. Admittedly, I got about as up close as it gets while working as a field manager on Harry Britt's primary campaign against her for Congress in 1987. Teh gay (men), lefty lesbians, and teh left in general (Central America activists, tenant groups, some labor unions) up against women's organizations, other labor unions, and liberals. We lost by 500 votes or so, on the absentees -- out-organized just enough by Marshall Gans.

Had the desired effect of getting Pelosi to straighten up and fly left, though, for her first couple of terms.

[cleek]

presumably this info Pelosi and the rest received was classified, right?

so, if any of them stood up in the middle of Congress and told what they knew, they'd get a quick visit from TITLE 18, PART I, CHAPTER 37, § 798.

and probably a slew of death threats, too.

[Model 62]

Enh, the conservative focus on Pelosi knowing or not knowing is a result of her position as Speaker of the House, not an expression of conservative misunderstanding of the relationship between Pelosi and the left base.

It plays well with the right base, since the tropes Gary Farber notes are well understood by the audience. That familiarity, too, is a function of her rank.

[Ugh]

presumably this info Pelosi and the rest received was classified, right?

so, if any of them stood up in the middle of Congress and told what they knew, they'd get a quick visit from TITLE 18, PART I, CHAPTER 37, § 798.

The idea is that she would be immune from prosecution under the Constitution's speech and debate clause which trumps the U.S.C. Plus, even if she weren't, I doubt that even the Bush Administration would arrest a member of Congress for giving a speech on the House floor, regardless of the content.

[cleek]

she would be immune from prosecution under the Constitution's speech and debate clause

ah. tnx.

[Model 62]

At minimum, Speaker Pelosi could have done what Blue Dog Democrat Jane Harman did following her briefing, which was send a letter to the CIA expressing her concern.

Ugh's floor speech suggestion asks too much of an ambitious politician. She was briefed before she became Speaker (and perhaps before she succeeded Gephardt as Minority Leader). Such a speech would surely have cost her the Speakership.

[PeorgieTirebiter]

Ugh said: "I think she could have made a speech on the House floor announcing, in detail, what the Bush Administration had told her and her strong disagreement with that practice."

I'm not suggesting anyone should get a pass, but I do think some context is important.
When Pelosi got briefed, it was less than a year after 9/11, the country had troops in Afghanistan, and the administration was publicly clubbing dissenters as unpatriotic, terrorist sympathizers. It was before all the lies had been exposed, and long before the pictures from Abu Ghraib. Without being allowed to consult with anyone or even take notes, it's impossible for me to imagine anyone standing on the house floor declaring ,enhanced interrogation techniques amounted to torture, and the Bush administration was authorizing war crimes. Especially, if the accusation was based on what, was no doubt, the most perfunctory, soft sell, dog and pony show possible. It seems we need a mechanism for fully-informed oversight that still manages to protect legitimate clandestine operations from the political hacks and ideologues that find their way into congress. I'm just saying that there's a difference between, not being a hero and being a damnable goat. A full investigation will take the decision out of the hands of both.

[Ugh]

Peorgie - yeah, I was just responding to the suggestion that there wasn't anything should could have done.

[Nell]

Many good points here. I find the apparent silence and immobility of Pelosi and all the other briefed leadership in the aftermath of Abu Ghraib revelations far more damning than in 2002-3, though am not about to give them a pass in the earlier period either.

[bedtimeforbonzo]

"But that's exactly why an investigation (likely) won't happen."

If Cheney keeps playing this peculiar game of chicken he's been engaging in, I would not be so sure about that.

[russell]

it isn't. we are.

Somewhat OT.

The point in my own, personal, lifetime when it occurred to me that the US as nation had passed the tipping point was during Gulf I.

Every day I would go to work and folks would be standing around the water cooler, talking about the real time footage they'd seen the night before on CNN.

No real blood and guts, just video feeds from precision guided munitions. Live footage from air campaigns. Stuff like that.

It was the first time in my lifetime we'd really been able to go to war more or less for free. It was less like a war and more like a computer game.

Everyone thought it was splendid. We won, hardly anyone on our side got killed, the gear was freaking amazing, and you could watch the whole damned thing right while it was happening, right there on the TV.

The ultimate reality show.

How f**ked up is that?

It's all been downhill from there AFAIC.

[Nell]

russell: [Gulf War I] was less like a war and more like a computer game. Everyone thought it was splendid. We won, hardly anyone on our side got killed, the gear was freaking amazing, and you could watch the whole damned thing right while it was happening, right there on the TV.

There was an excellent 'Wayne's World' segment at the time that played on that so well that it was near-antiwar. Back then I watched almost no TV but happened to catch that.

A march of over a hundred thousand in SF, nearly the same in Seattle plus taking over I-5. What's on the national news? A demo of three hundred people in Oklahoma City for the war. You could feel the gates clanging shut.

[Nell]

Excellent op ed in the NY Times by former general counsel of the Senate Intelligence Committee on what was illegal and wrong about the limited and inadequate briefings given to members of Congress on torture, and what those who were briefed could and should have done.

Because the link isn't showing up in preview, and may not persist even if it shows up in the comment once posted:

http://www.nytimes.com/2009/05/13/opinion/13divoll.html