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.

The inevitability of justice

Our system of justice, despite all its flaws, does have certain institutional pressures that provide it a relentlessness once some wrongdoing comes to light.

Political pressure can delay, obscure and deflect criminal prosecutions but it can rarely stop it altogether. More than six decades later the occasional Nazi still goes to trial. After 30, 40 or even 50 years Civil Rights cases have resulted in convictions. War crimes, especially, are unbounded in time except for death. That is why culpable individuals such as John Yoo, David Addington, Dick Cheney and even George Bush should be very worried about the legal process that is starting to unfold.

Scot Horton, as always, sums things up very well here with seven points about the recently released report on torture. The most chilling may his first point: the worst is yet to come.

Fourth Amendment? What Fourth Amendment?

As Jack Balkin at Balkinization points out, the Cheney plan to use the military to arrest terrorists in the United States amounted to a suspension of the Fourth Amendment.

The central problem with the Cheney/Yoo/Addington theory was that it allowed the President to declare anyone in the United States an enemy combatant. Then, once the President made this declaration, the person would lose all their civil rights. The military could arrest and imprison the person without charges or any of the procedural protections of the Bill of Rights; it could torture them for information (under the theory that these techniques did not shock the conscience under the Eighth Amendment), and it could hold them indefinitely in a military prison. The problem with the Cheney/Yoo/Addington theory, in short, was that it embraced elements of military dictatorship within the United States.

Frankly, until Republicans come to terms with this, I really can't see trusting them with executive ranch power again. Ever.

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.

The worms begins to turn

First off, when Fourth-graders begins to ask about torture (and Rice has to respond with legalisms to her vain attempt to defend it) then I think we can see signs that the tide is turning.

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/03/AR2009050301739.html

On top of that, the latest New York Times article featuring dramatic CYA by Porter Goss and Condi Rice is more evidence that things are going south for the torture crowd very fast.

http://www.nytimes.com/2009/05/04/us/politics/04detain.html?ref=politics

I think that Cheney, Addington, Yoo and others should be getting very, very worried. Their unindicted co-conspirators are scrambling for the exits and they will be left holding the bag. What is interesting is whether Bush, himself, will be held accountable or Cheney will take the fall.

One amazing thing about all this is how quickly it's unravelling. Indeed. if it were not for the economic crisis this would probably be transfixing the nation. The economic crisis will ebb, but the problem for war criminals is that their crimes never become too old to deal with. Cheney's health may eventually save him from the worst ( a la Pinochet), but younger guys like Addington and Yoo may see justice done.

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.

Forever at risk

Meanwhile, (Phillip) Sands reiterated a warning that he made in his book. “If I were they,” he said, referring to the former officials in question, “I would think carefully before setting foot outside the United States. They are now, and forever in the future, at risk of arrest. Until this is sorted out, they are in their own legal black hole.”

The article: http://www.newyorker.com/talk/2009/04/13/090413ta_talk_mayer?ref=fp5

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

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?

Maximal pain

Via Scott Horton, Alan Dershowitz on torture; http://www.harpers.org/archive/2009/03/hbc-90004600

Extract:

But I want more painful. I want maximal pain, minimum lethality. You don’t want it to be permanent, you don’t want someone to be walking with a limp, but you want to cause the most excruciating, intense, immediate pain. Now, I didn’t want to write about testicles, but that’s what a lot of people use. I also wanted to be explicit because I didn’t want to be squeamish about it. People have asked me whether I would do the torturing and my answer is, yes, I would if I thought it could save a city from being blown up.

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

Fire Yoo

Prof. Brad DeLong makes the case well: http://www.scribd.com/doc/12561194/null

They ought to be worried

Newsweek is reporting that a Justice Dept. report will say that the Yoo and company torture memos were "incompetent."

http://www.newsweek.com/id/184801

They ought to be worried.

Scott Horton thinks Yoo is trying to save his ass

The whole post is worth a read: http://www.harpers.org/archive/2009/01/hbc-90004296

Yoo defends himself and criticizes Obama

In his own words: http://online.wsj.com/article/SB123318955345726797.html?mod=djemEditorialPage

Beyond satire

Excellent post on the Yoo-Bolton rediscovery of limits on executive power: http://www.dailykos.com/storyonly/2009/1/6/1003/89780/942/680466

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.

Pardon moi? Bush considering blanket pardon on torture

Or so Salon reports ... http://www.salon.com/news/feature/2008/11/13/torture_commission/

While prosecutions would be nice, I'm not sure they're likely to happen. But pardons may actually help get this sordid affair behind us by making it impossible for perps and participants to refuse to testify about what they did and knew.

One question that I don't think is clear is whether the president can pardon himself -- although I suspect he can, there being no real limits on the power. Indeed, a sufficiently mischievous man could empty the prisons and there would be no power to stop him. (I wonder of President Lex Luthor ever considered such a step?)

Anyway, one aspect of mass pardons I haven't seen addressed is how they could backfire. While it's true that a presidential pardon would absolutely bar any domestic prosecutions, I don't see how it could stop foreign authorities from pursuing war crimes trials. Indeed, it may provide them evidence! The potential defendants could be compelled to testify in U.S. proceedings and those public record proceedings could then be used by international courts for their prosecutions.

The crimes alleged to ave occurred are, in many cases, recognized as crimes against humanity internationally. As such they can be prosecuted anywhere in the world and have no statute of limitations. President Bush, VP Cheney, John Yoo, Addington and many others may never eb able to set foot outside the U.S. again.

Scrivner's Error weighs in on Torture Yoo

http://scrivenerserror.blogspot.com/2008/04/between-being-sick-of-late-and-being.html