Eric Holder's Day Off

It was actually two days off, but that ruins a good title. Attorney General Holder holed up in his office at the Justice Department and read the 2004 CIA Inspector General's Report on torture cover to cover (I think it's about 200 pp. long). Twice, once as "a lawyer" scanning evidence, and then just as a person, reacting emotionally. So the story goes. He "cleared his schedule" to do this, and no doubt told his secretary to "hold his calls." The Report has been called the "Holy Grail" of torture accounts, detailing not only the usual stuff about Abu Ghraib, but delving into the CIA "black sites" as well.

The first thing that occurred to me was that General Holder is already bored with his job. That happens, especially in law. Why didn't he take the thing home and read it over the weekend? Well, for now the unredacted version is still secret and the object of a FOIA dispute with Citizens for Responsibility and Ethics in Washington (CREW), a "watchdog" agency. So that's a good excuse to read the Report in his office.

The second thing that occurred to me is that it's kind of a flaky thing to do anyway - take two full days to read a government report twice. Does he have a staff? Are we sure he wasn't playing Tetris? Just asking.

The upshot of all this is that Holder became convinced that maybe, perhaps, depending, the Justice Department should at least think about appointing a special prosecutor to look into this whole torture thing that happened during the Bush years. It's possible that Holder was operating in that emotional state the psychiatrists call cathexis when he found religion on this issue, and the whole thing will blow over as the vivid images conjured by whatever it is he was reading (which we can't, yet) fade in his memory. Or when Prez O reminds him that all of that war criminal activity, after all, occurred in the past where it is immune from prosecution.

But maybe Holder, flake or not, will assert the traditional independence of the AG and move ahead anyway. He may recall, from law school days, that events occurring in the past are quite often the subject of criminal prosecution. Indeed, until the introduction by Obama of the concept of indefinite preventive detention (even when acquitted at trial), we usually did not impose punishment now on the basis of what might or might not happen in the future. That is, criminal law punished criminals for things they had already done, which implies at least that those things had been done in the past.

Assuming that AG Holder can clear the hurdle of this logical conundrum and find a way around the future-only orientation of law enforcement under the Obama Administration, the question then becomes: should he do it? Should people be prosecuted for torturing other people?

One reason to say yes is that Ronald Reagan signed a treaty called the Convention Against Torture which requires the signatory nations to investigate and prosecute if appropriate whenever credible evidence appears that torture has been committed. Since Dick Cheney goes on talk shows every other day to confirm that he was in on the ground floor of an elaborate torture program, this threshold has been crossed. Treaties, after all, are the Supreme Law of the Land, taking precedence over purely domestic statutes where any inconsistency appears. So sayeth The Constitution. Since Dick keeps giving us credible evidence, failing to investigate and prosecute in the face of his constant confessions puts AG Holder and Prez O in a somewhat dicey situation. If they violate the Convention, they are not attending to their duty to ensure that the nation's laws are faithfully executed; that is, they are violating their oaths of office, an impeachable offense.

So that reason is no good. Impeachment is off the table, we all know that. I was just being a purist again, for some reason. There is no more chance of Obama being impeached over this than there is of Bush being prosecuted for war crimes - even though, and here's an often overlooked point, the "torture regime" wasn't really about waterboarding and stress positions. It's more about the approximately 134 detainees who died in U.S. custody, of which more than 30 have been classified as homicides. That's why, I think, Cheney talks about waterboarding so much. We didn't kill anyone with waterboarding. We killed them by beating them to death, asphyxiating them, and allowing them to die of exposure, which is a very different thing, and a thing that's harder for Rush Limbaugh to dismiss as a fraternity prank. Maybe that's in the IG Report, and it's perhaps one of the reasons that Obama doesn't want the report made public, defying court orders to release it. If it turns out that torture was actually more about murder than "simulated drowning" or "stress positions," the populace, even the American populace, could grow restive.

Although I doubt it, and so do you. We're sort of beyond all that now - murder, schmurder - who cares? Which also eliminates Reason #2: our concern for "our image in the world." That one is trotted out endlessly by left-leaning do-gooders. The only reason it's brought up is for internal politics, not because we actually care. Oh my, what will the world think if we do nothing? For crying out loud, that train has left the station. We're the home of the Wall Street Banksters, the charlatans and grifters who crashed the world economy by selling fraudulent securities, and then were bailed out by this same government which we now expect to work itself into a froth about "harsh interrogation." Even though, as pointed out, all these dead Muslims died in the past, not in the future, where our focus must be.

I think Eric Holder will get over it. He needs a break from work, that's all. An office vacation is obviously not enough. Head on up to Martha's Vineyard with Barack and Michelle next month for a few weeks, kick back, drink a few cold ones, swim in the Gulf Stream, go to parties, refresh yourself. Then go back and do something important, like seizing a Colombian drug shipment scheduled sometime in the future.

Cheney's Gambit

It has always been one of my tenets of analysis of the Bush Administration that Dick Cheney is perhaps the most overrated "intellectual" in American public life.  There's no doubt he takes himself very seriously indeed, but it's also true that he's nearly always wrong.One of the most oft-cited examples from his errata sheet is his pronouncement that the insurgency was in its "last throes" right at the moment two or three years of nonstop mayhem in Iraq were about to begin, but that's just one of his credits.  He was also dead wrong about his "no doubt" statement that Saddam had a nuclear bomb program.  On and on.  I suppose it's that growling gravitas he brings to all his nuanced utterances, all those prepositional phrases salted away in his long, intricate sentences, that give people the idea he's a trenchant thinker.  Compared to Bush, who has trouble describing coherently what day of the week it is, Cheney seems like Sir Isaac Newton, but that's damnation by faint praise.

I'm trying to figure out what he has in mind by essentially admitting his role in ordering the waterboarding torture of Muslim detainees, as he did Monday night in a television interview.  Personally, I think he was just stupid to do so.  Some analysts, who are prone perhaps to overthinking the issue, suggest that Cheney is forcing Bush's hand on a Presidential pardon.  What you might call a preemptory attack on a federal prosecution for offenses under the War Crimes Act, 18 U.S.C. Sec. 2441.  One devilish problem for the Torture Cabal right now is that the public visibility of such prosecutions seems to be increasing, not fading away as the Advent of Obama approaches. I admit I'm somewhat surprised by that.  Maybe it has something to do with overall hard times economically; the American people are in a foul mood and are looking around for someone to take it out on.  These are very ominous signs for Bush & Co.  These developments are happening very, very close to the end of Bush's term, and at the end of his term he and Cheney will essentially have no power to control the flow of events.

The New York Times in its editorial today calls for investigation, at least, and maybe prosecution of "Pentagon insiders" for war crimes relating to detainee mistreatment.  The editors there are such good little Establishment insiders.  They just can't quite bring themselves to state the obvious: circumscribing the prosecutions in such a way simply moves the "few bad apples" approach a little farther up the chain of command.  No, if the U.S. is going to prosecute "high government officials" for war crimes, then obviously we must include George W. Bush and Richard Cheney as defendants.  They stand right at the center of the conspiracy to violate Common Article 3 of the Geneva Conventions.  They enthusiastically encouraged, aided and abetted, and most importantly, set the moral tone for, the torture regime of the Bush Administration.  It was all part of the sick play-acting of a couple of lifelong noncombatants, one an ex-cheerleader who found a way to look like a hero while carefully avoiding the Vietnam War, and the other a fat chain smoker with a bum ticker who took five deferments so he could pursue his career of wrecking the body politic.  And now it's come back to haunt them, the "tough guy" stuff they never imagined would ever trouble their easy retirements.

With Cheney's admissions (even with his inaccurate historical revisions), the choice for the Obama Administration becomes pretty clear.  Since my sense about Barack is that he doesn't like unpleasant confrontation, he may secretly hope that Bush pardons everyone (using the Bush-Cheney Retirement pas-de-deux to pull it off), so he can use Cheney's Gambit as a way to finesse the whole situation.  The new Attorney General may also point to the Congress-approved retroactive exonerations in the Detainee Treatment Act and the Military Commissions Act as a reason such prosecutions would be futile.

One rationale for avoidance will probably not work: the "press of other business," such as the economic stimulus package.  We're in for a long, rough haul in the immediate years ahead, as an unworkable economic structure thrashes and struggles (like an apatosaurus in the La Brea Tar Pits) and attempts to adapt.  The American People might need just such a distraction for a couple of years.  It's hard to foresee all the permutations, of course; but it might just happen that the Obama Administration, taking a page from Cheney's "improvements" to the Office of the Presidency, decides to rule the pardons ineffective by Executive Order.  And those retroactive exonerations?  Same treatment.  Sure, it's unconstitutional.  But so was the suspension of habeas corpus for the Guantanamo prisoners.  So was the decision to decide that the Geneva Treaty, entitled to recognition as the supreme law of the land under the Treaty Clause, was a "quaint" relic of another time which did not apply to human beings Bush decided to treat inhumanely.  

Cry havoc! and loose the dogs of war.  Karma's a bitch, Dick, when those dogs turn around and bite you in the ass.

This Just In from the Senate: President Bush is a War Criminal

One might have thought that the Senate Armed Services Committee's Report on Detainee Abuse, signed by Chairman Carl Levin and Ranking Member John S. McCain, might have gotten a little more play in the national media than was actually the case.Naturally, if one might have thought this, it is because one has not been paying attention to the puerile and cowardly approach of Big Media to Our Own Private Nuremberg. The Report, which included the results of examining hundreds of thousands of documents, including autopsy reports on numerous detainee deaths in Iraq and Afghanistan which were "suspicious," to say the least (such as routine findings that healthy young men died repeatedly of "heart attacks" while in custody), was more or less ignored in favor of the riveting details of the antics and hijinks of Rod Blagoevich, the clownish governor of Illinois who tried to sell Barack Obama's Senate seat.  The Senate Report rejected, once and for all, the ridiculous notion that a systematic program of torture and mistreatment, all in violation of Common Article 3 of the Geneva Conventions, was the work of a "few bad apples" operating roguishly and independently at Abu Ghraib.

From the Report:  

Presidential Order Opens the Door to Considering Aggressive Techniques (U)

(U) On February 7, 2002, President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections afforded by the Third Geneva Convention. The President’s order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees. While the President’s order stated that, as “a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions,” the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in U.S. custody. 

Demonstrating that if not great minds, then at least cynical minds think alike, I note that Paul Abrams, writing today on the Huffington Post, opines that President Bush will resign on January 19, 2009, in favor of Dick Cheney, who will then pardon Bush and everyone else he can think of so they can guaran-damn-tee that the retroactive immunities laced throughout the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 will not be their only line of defense against a hyper-zealous Democratic Administration & Congress.  Not that there is much chance of that.  Congress has so many other pinatas to swing at: the aformentioned tousle-haired governor, the Big 3 auto execs and their private jets - hell, who knows, maybe they can summon another panel of disgraced baseball players caught using human growth hormone.  Who's got time for war crimes?

So take it easy, W.  You won't have to dodge any shoes back home.  What's a little torture among friends?  Sure, technically a conspiracy to commit torture in violation of Common Article 3 which causes death is a capital offense, and every last element of a prima facie case has now been established by the Senate Report. But first someone would have to read it, report on it, and mention it in the news.  And that isn't going to happen, not here. W can go back to his Dallas mansion unworried and undistressed, a pleasure denied Hitler, who probably dreamed of those golden days atop Berchtesgaden in the dark days of the bunker.  But we "won" in Iraq, and to the victor go the spoils.

They were only following orders

It seems to be the consensus of opinion that the Obama Administration will not tarry over the Bushian crimes of the past, nor prosecute violations of the War Crimes Act for torture or other outrages against humanity.  This is no great surprise.  Beltway wisdom, as Glenn Greenwald over there on the right hand column points out on a daily basis, always leans in favor of collegiality and sweeping things under the rug.  Even Patrick Leahy (D, Vt.), one of the more vociferous and effective critics of the Bush Administration's detention and interrogation tactics, does not favor any kind of Justice Department action against U.S. officials.  Rationales are easy to find for this sort of soft-peddling of criminal acts.  For example, the following reasoning:

"Pre-emptive pardons would be highly controversial, but former White House counsel Arthur B. Culvahouse Jr. said it would protect those who were following orders or otherwise trying to protect the nation.

"I know of no one who acted in reckless disregard of U.S. law or international law," said Culvahouse, who served under President Ronald Reagan. "It's just not good for the intelligence community and the defense community to have people in the field, under exigent circumstances, being told these are the rules, to be exposed months and years after the fact to criminal prosecution."

We haven't heard that one in a few decades: they were only following orders.  As indeed they were, I'm sure, but that's sort of the point of an investigation of the "higher-ups:" to determine what the legal basis for ordering violations of the the Geneva Conventions and the War Crimes Act was in the first place.  The "preemptive pardons" which Mr. Culvahouse mentions would only be icing on the cake, given the retroactive immunities granted by Congress, discussed below.  Anyway, I personally agree that the operatives "in the field" should not be the focus of any inquiry, and that we do make a hard job impossible by threatening them with prosecution for following Presidential directives.  The point is that it is not difficult here to find the higher source of this "banality of evil."  It's all in writing and admitted to by the President's inner circle.

Nikita Kruschev was faced with a similar quandary shortly after assuming power in the Soviet Union in the 1950s.  At the 20th Party Congress in 1956 he asked for special permission from the Presidium to deliver a detailed critique and denunciation of the atrocities of the Stalin Regime and the "Cult of Personality."  He was refused permission inititally by Molotov, Kaganovich and other high Communist officials.  Part of their angst was personal; many of them (and including Kruschev) had been involved in the purges, murders, and Gulag-related outrages of the Stalin Regime.  Using a parliamentary trick, however, Kruschev managed, about ten days into the Congress, to deliver a lengthy, detailed and extemporaneous denunciation of the Cult of Personality, and the transcript of that secret proceeding was spirited out of the inner sanctum of the Central Committee to the general Soviet populace.  It had an electrifying effect and set up many of the reforms which were gradually introduced over the course of the next eight years or so.

We're clearly not going to have such a moment in the United States.  Some features of the Soviet situation seem analogous to our own.  Congress embedded retroactive exonerations for war crime violations in the Detainee Treatment Act and the Military Commissions Act; essentially, reliance on the "advice of counsel" to assure one that following orders was okay cleans the slate of detainee abuse.  Thus, under U.S. law waterboarding of suspected terrorists, whether or not they were capable of producing actionable intelligence on an emergency basis (the "24" scenario), is forgiven retroactively, and a key element in such exoneration is the reasonable belief that the "advice of counsel" gave one the green light.  A majority of Democrats and Republicans, therefore, have joined forces to make certain that no effective prosecutions under the War Crimes Act ever take place, and part of the reason for their resistance is the extent to which they are all co-opted now by complicity in the "tactics."  We do not have a Kruschev on the horizon to bull his way through the stonewalling, so the matter will be put to rest.

The United States did undergo the ravages of a "Cult of Personality" over the last eight years, although I'm not entirely certain whose personality it was.  It seems almost comical to ascribe it to the feckless person of George W. Bush.  The Cult centered around the arrogant promotion of the Unitary Executive, with its signing statements abrogating legislative enactments and secret procedures for dealing with America's enemies.  America did establish its own Gulag, and did kill people under torture.  These are well-established facts.  Unlike Stalin, the American Cult of Personality did not mainly turn its ferocity against its own people, and that is why we are apt to be so forgiving and to "move on."  The victims to us are mostly faceless and anonymous, and it's not in our nature to worry too much about them.  Whether we can really "move on" without the archetypal "accountability moment" may prove to be a more serious question, however. I don't think human psychology permits such an open-ended progression.  At some point, we need to find out what we did, why we did it and what we're going to do about it.