Tuesday, November 25, 2008

Why the Obama Justice Department has to prosecute the torture perpetrators

How many Americans thought eight years ago that in 2008 2000 that today we would seriously be debating whether it was a good thing or not to prosecute American officials who directly engaged in torture and in conspiracy to evade the laws against torture?

Human rights attorney Scott Horton lays out in the case of the torture policy why no honest Justice Department can ignore the criminal acts involved in that national disgrace. The Cheney-Bush Justice Department is not honest. It has acted as a major part of the series of crimes involved. As Horton notes in the post from which this excerpt comes, Known Unknowns TPM Cafe 11/25/08, He is a former law partner of the current Attorney General, Michael Mukasey:

When all the facts are on the table (and I have been researching them for four years now, which is why I am certain that Mukasey's characterizations won't hold water), we will learn that the decision to introduce torture was taken first, and the DOJ lawyers were asked to issue memoranda to provide cover for the decisions taken. Some of it happened in a shockingly casual form over a squash court, as Rumsfeld's lawyer told a DOJ lawyer about some of the techniques used and asked him to provide cover in some written memo. When DOJ lawyers attempted any measure of serious analysis (as happened with Dan Levin, for instance), they were fired, or quickly learned that to protect their own reputation they would have to leave the Department soon. When DOJ lawyers talked with lawyers with actual expertise in the area--at the Department of Defense and State--they were told repeatedly that the proposal was a criminal act. One general, one of the Pentagon's most senior lawyers, recounted to me a meeting with John Yoo in which Yoo described to him the OLC memo on torture. "Your opinion is both incorrect and incompetent" he told him. To this Yoo responded that he wasn't concerned, why he had even gotten the head of the Criminal Division to sign off on it. The general told me this was the point at which he began suspecting that a criminal conspiracy was afoot inside the Justice Department to violate the Anti-Torture and War Crimes Acts. Indeed, I soon learned, that view was widespread within the government, even inside of the Justice Department. [my emphasis]
If an Obama Justice Department sweeps things like this under the rug, for whatever reason, that won't just be a terrible policy decision. It would be outright dereliction of duty.

This is very serious stuff, with the most serious of long-term implications. A decision not to prosecute those acts is not a serious option for any administration committed to the rule of law.

Horton proposes an investigative commission with full subpoena power to investigate the torture crimes in particular, an approach that would not preclude subsequent prosecutions. He's a genuine expert in this area, and I assume he has good reasons for proposing such a sequence for proceedings.

But I'm not convinced. I don't see what fact-finding a "Truth Commission" could do that a full-blown prosecutorial investigation couldn't do better. And it seems that the latter would get to the necessary result quicker. Even though Horton's description of the problem sounds to me like an argument that straight-up prosecutions are absolutely necessary, he seems to be more interested in the Truth Commission part. But he's right in defining the stakes:

Under President Bush, the Constitution took a shellacking. We had the most devious, secretive government in our nation's history. In the end, it was at war with the rule of law itself. But this isn't the time to be talking about indictments and prosecutions [!?!?], though that may come in the fullness of time. Now is the time to force those dark secrets from the recesses in which they've been hidden and insure that the public fully understands what was done by the most incompetent, corrupt and lawless government we've ever had. Charting those dealings is the first step. Correcting them is the second. [my emphasis]
Being as much of a history junkie as a political junkie, I appreciate the need to understand, factually and historically, what went on.

But from the standpoint of restoring the rule of law, that's not good enough. Plus, "the fullness of time" sounds dreadfully like "all deliberate speed".

Here's a case where if we're careful in how we look, we can learn something from the experiences of countries like Spain, Chile, Argentina and eastern European countries that have had relatively recent transitions from dictatorships (of various degrees of severity) to liberal democracies.

What Cheney and Bush did with the torture policy as well as other things was to operate outside the law and the Constitution without formally setting aside the Constitutional structure. And for most people in most areas of life, they didn't experience a radical change in the way the laws worked. Cops didn't stop giving traffic tickets, which is the main kind of hostile encounter most people have with law enforcement. But the illegal actions of this administration were still very serious, with long-term consequences for the whole country.

That makes the transition to a presumably law-abiding Presidential administration different from what a country like Argentina experienced in 1983 when they went from a military junta ruling to having a competitive, multi-party democracy again beginning in 1983. In that case, a regime that ruled openly by force and arbitrary actions, complete with death squads used against thousands of Argentine citizens, was replaced by a civilian government committed to the rule of law.

It was clear in that case that the junta stepping down and being replaced by a democracy meant that things had changed in a permanent way. And the public was broadly in a "never again" mood after their experiences with the junta of 1976-83. So there was an argument to be made that they could safely go forward with the rule of law without going back to prosecute the bloody acts of the junta.

That's not what they actually did. The military had set up an indemnity for itself before stepping down from power. But the civilian government rescinded the indemnity and put leaders of the junta on trial in 1985, as well as leaders of a couple of the violent guerrilla groups that were the ostensible reason for the junta taking power. I suppose in the context that was a kind of "bipartisanship".

There's not a direct analogy, although the general theme of accountability and deterrence of future such acts is common to the two situations. It's actually the contrast in the two situations that I take as the bigger lesson.

It's precisely because the Cheney-Bush administration broke the law extensively while preserving the basic governmental structure that makes prosecutions even more necessary in our present case. What's the point in having a rule of law if the Executive can arbitrarily set it aside? And what's the deterrence for the next set of Cheneys and Roves if there are no legal consequences for the criminal acts of the current administration?

Cheney and Bush created a real-life template for who an American government can use an authoritarian political party to establish a truly lawless Presidential government. The next set of Roves and Cheneys that come to power need to think that if they are ordered to implement similar lawless actions, that the law may very well catch up to them.

If the guilty participants in this administration don't experience direct legal consequences, i.e., prosecution and legal punishment, for what they did, then the Cheney authoritarian model has worked. Next time around, it's just a matter of finding the right combination of voter suppression, fear, de facto control of the media and suppression of real dissent to make it permanent.

Cheney's idea of democracy was articulated back in 1949 by East German Communist leader Walter Ulbricht, as he explained to his Party comrades in 1949 what kind of government they were founding in the new "German Democratic Republic": "Es muss demokratisch aussehen, aber wir müssen alles in der Hand halten." (It has to look democratic, but we have to control everything.)

Not prosecuting known major crimes from this administration would validate the Cheney-Ulbricht approach to governance. And that would definitely not be a good thing.

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