The OPR report

The OPR report on the 'Torture memos" is remarkably disheartening and hopeful at the same time.

It's fate is disheartening because its quashing by Margolis is one more example of shielding the big fish while small fry get served up for dinner. It really is a scandal that the likes of Lynndie England are prosecuted while senior officials get a pass.

I agree that the CIA operatives who may have tortured or abused someone in custody based on the shoddy legal framework provided should not be prosecuted -- so long as the high muckety-mucks that authorized it are held accountable. Of course, that is not happening nor does it seem to be in prospect. Instead there's mumblings about holding people responsible who may have "exceeded" the guidelines, which sounds a lot like deciding to scapegoat some small fry again.

It's a hopeful development in another sense, because it's one more brick in what will obviously be a very long process of bringing people to justice. No one should forget that there is no statute of limitations on war crimes. Many years, even decades later crimes committed by the Nazis, by the Khmer Rouge, by South American death squads have been successfully prosecuted. Dick Cheney's ticker may give out before he faces a serious consequence but Yoo is a young man and will have to spend many more years looking over his shoulder. It's already dangerous for him to travel outside the U.S.

Speaking of Dick Cheney, his recent mild heart attack has prompted some comment about karma but I, for one, hope he sticks around for a long time. Should he die soon there is no doubt in my mind that there will be a rush, a freaking deluge, of people blaming him for what happened. The only defender he'll have left will be his daughter, but every partner in crime will suddenly coke clean about how "Dick made me do it."

Cheney, in my view, certainly does bear a lot of culpability, but he was just one man and he had plenty of help in dishonoring America. It would be a shame for those fellow criminals to get away with their crimes by burying their sins in Cheney's grave.

More disturbing evidence of possible crimes at Gitmo

This Seton Hall report, based on public records, by the way, points to some disturbing evidence that the trio of so-called "suicides" at Gitmo that the military called asymmetrical warfare by detainees may have been something else. At a minimum, it appears that there was a cover-up of the real circumstances.

The shame continues.

Vapid 4-star generals

Or so Andy McCarthy calls Gen. Petreaus. http://corner.nationalreview.com/post/?q=NjFkMDM5NWMzODJhNGI3NjdlOGE0NjQ0Yjg0ZjZmMzg=

I wonder if McCarthy just cost himself a position ina future Petreaus administration.

My inclination is to go with the 4-star general on this over the former assistant US attorney.

War crimes cannot be pardoned

Scott Horton makes some interesting points about the limits on the U.S. government's poweres to shield Bush-era officials from war crimes prosecutions. Read the whole thing here, http://www.harpers.org/subjects/NoComment#hbc-90004897 but the bottom line is that former Bush officials linked to the torture polices should be very wary about overseas travel -- ever.

Froomkin explains how it's the cover-up that often gets you

Good read: http://www.discourse.net/archives/2009/04/its_often_the_coverup_that_gets_you.html

Thinking alike

Digby thinking along the same lines:
However, I have to wonder if by releasing the memos they aren't at least obliquely asking for the public to "make" them do it. They could have kept them secret, after all. If there were significant public pressure as well as pressure from congress, they would have enough cover to launch an investigation with the assurance they aren't going to go the Bad Apple route.

Obama's game

First off, the release of the torture memos is laudable and very, very important. And I think that Holder's assurances that CIA operatives not be prosecuted for war crimes they may have performed undeer guidance from the DOJ memos may be defensible for now. That's because the real targets for prosecution should first, and foremost, be the policymakers who ordered the torture. I don't want to see any more Lyndie England affairs, where some grunt takes the fall for official misconduct.

That said, Greenwald is critical of Obama's call for the following good reasons.:

The more one reads of this, the harder it is to credit Obama's statement today that "this is a time for reflection, not retribution." At least when it comes to the orders of our highest government leaders and the DOJ lawyers who authorized them, these are pure war crimes, justified in the most disgustingly clinical language and with clear intent of wrongdoing. FDL has a petition urging Eric Holder to immediately appoint a Special Prosecutor to determine if criminal proceedings should commence. Obama did the right thing by releasing these memos, providing all the information and impetus the citizenry should need to demand investigations and prosecutions. But it is up to citizens to demand that the rule of law be applied.

Here's what I think may be going on. I think Obama is in a very delicate situation here. The very last thing he wants is for this to be perceived as a partisan affair, mere retribution against the losing party using the legal system. Given the extremely toxic partisan atmosphere of modern US politics there will inevitably be some who will make this charge, but it is vital that it not stick. Obama seems to have the rare ability to look at the long-term and I think he's very, very reluctant to set any precedents down that road.

Therefore it's very important that he be seen as being forced to take action. He can't take the lead. That's why criticism from Greenwald and others is useful because it helps build that pressure.

If Obama had any interest in actually blocking the eventual prosecution of somebody for war crimes this would have been a good place to draw his line by redacting the hell out of the memos, as certain powerful elements apparently wanted. Instead nearly every damning word has been released.

Remember there is no statute of limitations for these crimes. I fully expect that prosecutions will come. Indeed, as more and more evidence comes out it the pressure will become irresistible. Remember that there are, apparently, videos and photos of much, much worse things that were done. "Murder and rape" were the words Sen. Lindsey Graham used.

By all means keep complaining. I doubt that Obama actually minds.

The vital point

Made by Andrew Sullivan while talking about the possible Spanish war crimes proscutions againts US lawyers, emphasis mine:

The lawyers are the beginning. Bush and Cheney are - and must be - the ultimate targets. They belong in jail. And there are no statutes of limitations on war crimes.

Details: http://andrewsullivan.theatlantic.com/the_daily_dish/2009/03/is-justice-closing-in-on-yoo.html

WE did it

An impassioned plea from a posting at Daily Kos about the need for prosecutions on torture:

We did this, Americans did this, and....in the eyes of the rest of the world.... YOU did this.
Rape. Torture. Murder. It is what Americans do. Unless we prove it isn't.
Unless YOU now make sure that WE investigate charge and try the people who authorized, ordered and carried out these acts... as YOUR government, in YOUR name, with YOUR money, by YOUR soldiers and intelligence agencies....YOU did this.
Because you are an American, and Americans did this.
And unless we do something about it, that IS the historical record. America did this. Not Bush or Cheney, America.
Right up to the day that we charge the individuals who did this...as individuals.
Right up to the day we try the President and Vice-President who did this....NOT as Americans. Not as representatives of America. But as men. Men who have broken the law NOT in the name of every American. But in their own name.
Until these MEN are brought to justice and tried as War Criminals, these are not just their crimes as individuals who broke the law. These are ALL of OUR Crimes, as Americans.
The only way to clear YOUR name, to clear America's name....is to charge, try, and convict George Bush, Dick Cheney, and Donald Rumsfeld as men, as private individuals, who committed War Crimes NOT in our name, NOT with our consent, but in their own name, on their own abused authority.
Is their any greater crime, any greater sin possible, than to rape and torture a fellow human being to death? And yet this IS what we did.
As much as we seem to want to pretend we didn't.
Until the responsibility lies directly on the individuals who ordered these inhuman atrocities, then it lies with us, the People in whose name this was done. Until WE find THEM guilty, we are guilty. As Americans in an America that does torture.
Until we prove we don't. Through prosecuting those who did.
Until Justice is done. Or at least attempted, those who are not attempting it, US....
....Each Of Us Shares This Sin.

The whole thing here: http://www.dailykos.com/storyonly/2009/3/26/712768/-Torture:-Prosecute,-Or-Each-Of-Us-Shares-This-Sin

Are we ready for what we're going to find out?

More torture memos to be declassified that will be very embarrassing to the CIA, Newsweek reports.

http://www.newsweek.com/id/190362

What we already know is horrific enough, but the intel community is fighting so hard to keep the secret that one can only wonder how bad it must be.

And percolating in the background is the whole question of the secret surveillance program that was so objectionable that even John Ashcroft thought it went too far. And Ashcroft was OK with the torture. How bad will THAT news be, when (if?) we find out?

We can be sure it will be worse than we thought

That's the one thing we can be sure about the extent of the Bush administration's use of torture.

The Daily Mail outlines the allegations of Binyam Mohammed here: http://www.dailymail.co.uk/news/article-1160238/How-MI5-colluded-torture-Binyam-Mohamed-claims-British-agents-fed-Moroccan-torturers-questions--WORLD-EXCLUSIVE.html

We have years of horrid revelations ahead of us.

What we already know for certain is enough to justify convictions under all sorts of international and domestic law under the same standards that have been applied to people from other nations as far back as World War II and as recently as Dafur.

Sullivan makes more good points on the implications of the torture memos

Just to recap: the last president believed that he had the inherent power to suspend both the First and the Fourth amendments, he had the power to seize anyone in the US or world, disappear and torture them, and ordered his legal goons to come up with patently absurd legal rationales for all of it. And much of official Washington carried on as normal - and those of us who actually stood up and opposed this were regarded as "hysterics".
Something is rotten in a country where this can happen with such impunity - and when, even now, highly regarded and respected journalists and commentators simply move on or roll their eyes or sigh world-weary sighs.
What we just lived through was an attack on the Constitution of the United States, conducted by the president and vice-president and an array of apparatchiks.The theory undergirding it renders the entire constitution subject to one man's prerogative. The conservative blogosphere - who resolutely ignored this in deference to their Caesar - now bleats about Obama's alleged threat to the constitution!

Whole thing here: http://andrewsullivan.theatlantic.com/the_daily_dish/2009/03/criminals-in-th.html

Comprehensive smackdown

DOJ link to discredited Yoo memos: http://www.usdoj.gov/opa/documents/olc-memos.htm

Holder confirmed

Despite the fact he refused to promise NOT to prosecute Bush-are crimes.

Torture prosecutions

The "conventional wisdom" seems to be that prosecutions for torture are unlikely, but I think the CW is misplaced.

First of all, there's no statute of limitations for war crimes, so it's presumptuous to assume that the political situation 10 or 20 years from now won't allow for it. Just ask Pinochet.

Speaking of Pinochet, there's also the fact that war crimes are universal jurisdiction crimes, so there's always the possibility of the prosecution in a foreign court. Still, here I am talking about US prosecutions.

Despite his talk about "moving on" and "looking forward: I don't think there's any indication that Obama has ruled out prosecutions down the road. He's a skilled politician, though, and I think he recognizes that he can (indeed must) let the case build for prosecutions over time. He has some very pressing issues that must be dealt with NOW and getting bogged down in legal action that will unavoidably take years to resolve is, frankly, stupid. Better to let the pressure build slowly.

Factors that will build the pressure will include finding out more about what, exactly, was done. Shining a bright light on the prior practices and who authorized them will help build pressure to act. As a matter of fact, under the relevant treaties and laws the government will HAVE to act eventually, and at least open investigations. Given what we already know, investigations seem likely to lead to charges and charges will necessarily lead to trials. Whether they lead to convictions is hard to say, but people have been convicted for less.

What Obama had to do now on the torture and related executive abuses is ensure that they STOP immediately and that there be a complete repudiation of the Bush approach. His executive orders and appointments both achieve that aim. There has been some quibbling from the ACLU and some outer human rights advocates that Obama left him some "wriggle room" here and there. It's their job to raise these kinds of flags, but I put little stock in them. Keeping some third way of dealing with Gitmo detainees besides the regular courts and UCMJ available is simple political prudence. Despite the appalling incompetence of the Bush people, it's probably that at least some of the remaining detainees at Gitmo are actual, bona fide dangerous terrorists that can't be released safely. Unfortunately, because of Bush policies, they probably can't be prosecuted now because of torture and abuse. So some process that keeps them detained will have to be found.

Obama has clearly laid out that openness, rule of law and humane treatment are the default values whenever in doubt. This is the opposite approach from Bush, of course, but what it means is that as it percolates down the chain to the lowest levels that things will change in a concrete way. Just as Rumsfeld's decisions led directly to Lynndie England's actions, so will Obama's lead to changes It all starts at the top.

A well-reasoned arguement for patient pressure on Obama on Bush-era crimes

The gist of this long, but goo read is that we should keep up the pressure on Obama to address the crimes of the Bush era, but be patient about it as well.

Key quote:

Look at it as Kant might have done: do we want Presidents committing themselves to siccing prosecutors on previous administrations as a matter of habit? In four years every administration commits a sheaf offenses against good taste, against the English language and, yes, against the legal code of the United States. A determined prosecutor will inevitably find a nut. For that reason, even taking into account the obvious and undeniable crimes that we already know about, Obama will serve the country better if he begins with a skeptical position, one might call it conservative, and lets official fact-finding and public pressure move him in the right direction.

http://www.balloon-juice.com/?p=15646

Larison, as usual, gets to the nub of the matter

Damile Larison on loophole seekers for Just War theory:

Of course, it is possible that applying high standards will simply cause those who wish to wage war for whatever reason to ignore the restraints of the tradition entirely, but then I thought that one of the purposes of establishing moral standards was not to accommodate the unjust in their desires. After the last six years, I would have thought that the tendency to water down these standards and thus make escalating and starting wars more morally and politically acceptable was the far greater problem that we face. We are not in danger, it seems to me, of “giving ammunition to the side of the debate that wants to do away with moral restraint in the struggle against terrorism entirely,” as these are the people who are perfectly happy to warp and distort the just war tradition (and the Constitution, international law and the basic meaning of words, among other things) to accommodate the virtual abandonment of that restraint. One could make a similar argument that opponents of the torture regime, by taking an absolute stance against torture as wrong in all cases, are giving ammunition to those who have defended and justified it as necessary, but I think Ross and I would agree that there is an obligation to oppose injustices that are carried out by the state, whether in isolated incidents or as a matter of systematic policy, that needs to be fulfilled whether or not apologists for those injustices can demagogue that opposition to their temporary advantage.

The whole thing is here: http://www.amconmag.com/larison/2009/01/05/high-standards/

The buck begins to stop with Bush

Andrew Sullaivn takes Glenn reynolds (Instapundit) to task (emphasis mine):

When that commander-in-chief has personally authorized such techniques himself, he assumes total legal and moral responsibility for those war crimes. So even if Reynolds' own skewed view of the report is accepted, his conclusion still doesn't follow. Bush is responsible, morally and legally and operationally, for war crimes under his command - war crimes for which Bush refuses to take any responsibility.
But, of course, his view is skewed, as partisan propaganda often is. As the Taguba and Fay and Jones reports found, the importation of the Gitmo techniques to Iraq was directly ordered from the very top. General Geoffrey Miller was directly sent by Rumsfeld to Abu Ghraib to "Gitmoize" it, i.e. to transport the Communist torture techniques honed at Gitmo to a theater of war that even Rumsfeld believed was subject to Geneva. Miller was ordered to take the gloves off and round up thousands of innocents for mass abuse and torture because the Iraq insurgency had taken Bush and Cheney by surprise and they responded in the only way they knew or trusted: by violence, force and torture (which we now know were the pillars of their war strategy from the first). Does Reynolds believe that the mass round-ups of Iraqis into Abu Ghraib jail were not authorized by the commander-in-chief? Does he believe that the order to get intelligence on the insurgency was invented by a few bad apples on the night shift? Does he really think that the exact same SERE techniques authorized by Bush were replicated in exquisite detail by barely literate grunts like Graner and England by some sort of telepathy or "climate"?
Well: this is what you have to believe if you are to keep defending this administration

Sullivan makes an uncomfortable point

Andrew Sullivan in The Atlantic online:

The MSM also made torture possible - especially cable news. Even PBS demanded that guests not use the word torture to decribe torture. The issue was barely present in the last campagn; and Bush has not been asked about his war crimes in any single exit interview so far. The AP and the NYT and the WaPo collude in robbing the English language of its plain meaning. This is not to bely that amazing work that many MSM reporters have done - from Dana Priest and Jane Mayer to Scott Horton and Charlie Savage. But so many of their editors seem unable to tell the truth about this country's war crimes in the past seven years.

It's official: Bush authorized war crimes

Scott Horton explains:
This week the Senate Armed Services Committee issued a powerful report, released jointly by chair Carl Levin and ranking member John McCain, that received the unanimous support of its Democratic and Republican members. The report concluded that Donald Rumsfeld and other high-level officials of the administration consciously adopted a policy for the torture and abuse of prisoners held in the war on terror. It also found that they attempted to cover up their conduct by waging a P.R. campaign to put the blame on a group of young soldiers they called “rotten apples.” Lawyers figure prominently among the miscreants identified. Evidently the torture policy’s authors then enlisted ethics-challenged lawyers to craft memoranda designed to give torture “the appearance of legality” as part of a scheme to create the torture program despite internal opposition.

The Senate Report summary can be read here: http://media.washingtonpost.com/wp-srv/nation/pdf/12112008_detaineeabuse.pdf?sid=ST2008121101970&s_pos=list

Just one of the conclusions of this daming report (emphasis mine):

(U) The abuse of detainees in U.S. custody cannot simply be attributed to the actions of “a few bad apples” acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.