Sunday, January 11, 2009

Accountability and the rule of law

Hecht-Nielsen, The Grand Inquisitor

It's a poor headline: Obama: Gitmo Likely Won't Close in First 100 Days by Mary Bruce 01/11/09. But the article reports on Obama's interview with George Stephanoopoulos on This Week. And Obama's answer on closing Guantanamo sounded good to me. In the segment I saw, Stephanopoulos didn't ask him about the rest of the Bush Gulag, the various secret detention centers like at Bagram Air Force Base in Afghanistan. But I don't see that there's any essential difference in the type of facility, at least based on the limited amount we know about those other facilities.

From the transcript of the 01/11/09 broadcast:

STEPHANOPOULOS: You also agreed on Guantanamo when you say you want to shut it down. You say you're still going to shut it down. Is it turning out to be harder than you expected, will you get that done in the first 100 days?

OBAMA: It is more difficult than I think a lot of people realize and we are going to get it done but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it's true. And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo American legal system, by doing it in a way that doesn't result in releasing people who are intent on blowing us up.

STEPHANOPOULOS: So not necessarily first 100 days.

OBAMA: That's a challenge. I think it's going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do. But I don't want to be ambiguous about this. We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our constitution. That is not only the right thing to do but it actually has to be part of our broader national security strategy because we will send a message to the world that we are serious about our values. [my emphasis]
This is an encouraging answer to me, although we'll see later what the specifics turn out to be.

He's addressing there the continuing Republican verbal bogeyman of what happens if we release somebody from Guantanamo and they then go off to be terrorists again. This is an elementary question of all justice systems. But Cheney and Bush decided to handle those detainees under their own lynch-law system, disregarding the established procedures in national and international law that were already in place.

It seems to me that the only real course Obama can take consistent with what he's been saying on this issue is to go back to the actual legal procedures. Fighters captured on the battlefield - or, as in Afghanistan, turned over to the Americans by Afghans in return for a cash bounty - have to be put before an impartial tribunal to determine whether or not they are prisoners of war. If they are, then they have to be treated as POWs in accordance with the Geneva Conventions.

If they aren't, they have to be prosecuted according to existing American law or the laws in the country in which the crime occurred. Timothy McVeigh was convicted in a fair trial for the Oklahoma City bombing, sent to prison and executed. But Cheney and Bush preferred their lynch-law system to the established justice procedure that works.

And Obama's answer to Stephanopoulos points to a basic problem of the Cheney lynch-law Cheney: "some of the evidence against them may be tainted even though it's true". Using procedures that taint the evidence, such as torture, may make it more difficult to win convictions even against some defendants against whom their is strong evidence. But in any fair trial, acquittal is always a possibility. That's part what the "fair" thing is about. I would expand the comment and say "some of the evidence against them may be tainted even though it's true" and I wish some of the Republicans and far too many Democrats in Congress who supported the Cheney lynch-law system had stopped to think about this in 2001 and 2002.

I'm less happy with Obama's comments on prosecutions for felonies committed by senior officials in the current administration:

STEPHANOPOULOS: The most popular question on your own website is related to this. On it comes from Bob Fertik of New York City and he asks, "Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping."

OBAMA: We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering (ph).

STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?

OBAMA: We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward.

STEPHANOPOULOS: So, let me just press that one more time. You're not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence wherever it leads?

OBAMA: What I -- I think my general view when it comes to my attorney general is he is the people's lawyer. Eric Holder's been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he's going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past. [my emphasis]
Obama's being cagey about this one. Pro-accountability people can take a phrase like Holder's job being "uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics" as a sign that he's open to prosecutions, or recognizes that prosecutions are necessary under the law even though he might prefer not to do them.

Pro-crime and pro-let-bygones-be-bygones-for-Republican-lawbreakers listeners can take phrases like "my orientation's going to be to move forward" as supporting the pro-Republican-crime position.

It strikes me that Obama's comments there track very closely with the approach Cass Sunstein took last July at the Netroots Nation convention. See video at The Next President and the Law. The whole video is good, but it's over an hour and it doesn't seem to have the capability of jumping to a particular point forward in the video. Fortunately, there's a transcript, that unfortunately doesn't include most of John Dean's opening presentation. Very near the end, during the question portion this exchange takes place (my emphasis in bold):

[Sunstein:] I appreciate this, what you say. And there's only one sentence that I very clearly disagree with, and that is, "Republicans are evil." I don't agree with that. President Roosevelt, our greatest 20th Century President – [applause] – yay for that – referred to Republican leadership in harsh terms, but never called out Republicans. And I think that's good strategy.

Outrage is appropriate, but there's looking backward and looking forward, and we have to kind of do both at once. And what I worry about a little bit is that sometimes outrage is a great motivator of looking forward at the incredible opportunity we have. Let's be more excited about the next two years, even, than furious about the last eight, I think. [Applause.] But you're right, you ARE right that the excitement has to be informed by an appreciation.

I don't believe – just to clarify – that people who have violated the law should be happy and rich because they work for the government. Crimes are a different matter from the sorts of things I'm being cautious about – calling people out on. If there are crimes, federal crimes, then that can't be just blinked away.

Adam Bonin

Okay. Next question.

Male Audience Member

Not enough, gentleman. If Obama rejects the unitary executive power, that means for the next four years, probably the next eight, we're okay. But that doesn't do anything for when Jeb Bush comes. What we've seen with the Bush administration is that our constitutional protections are not sufficient. We need something much stronger to protect against this kind of criminal administration. [Applause.]
That session provides some very good background on some of the relevant legal issues and the larger issue of the transition from the Cheney era to a normal rule-of-law administration.

But even John Dean seemed somewhat reluctant to recommend prosecutions. He mentioned in his speech that's mostly omitted from the transcript about how Obama responded to a question on this during the campaign. He returned to it in the question period:
Adam Bonin: I have one question that I want to ask our panelists, and then we've got a microphone available for your questions as much as time permits, and I encourage you to line up behind it. And this is on something, Michael, that you
address, and that I think a lot of people would like to get into, and that question is, how much energy should the next Department of Justice put into investigating and potentially prosecuting abuses by this administration?

John Dean

Well, we certainly know that candidate Obama has said he would do this. He's hedged it; he's qualified it ... whether it's a determination of bad policy or blatant violations of law. It is a huge break in precedent that a candidate would say that he's not going to just give his predecessor a pass, which has been the norm, of course, where no one has BEEN investigated.

So the question is, how much energy and time should be devoted to this? Actually, I think there are other things that require more time, like plowing through OLC's secret memos that we don't know about, and so many of the foundations upon which ... And for the audience that doesn't know the impact of OLC, they really give the legal basis for the rest of the government as to how they can or cannot operate. And some of those are public; some of them are not. Similarly with executive orders. [my emphasis]
In the video, Dean called Obama's response to the question on this "a very thoughtful and precedent-breaking example". Obama had said he would have his Attorney General - Dean pointed out that Obama used the word immediately - "investigate as to whether this is a distorted policy that they have been using or a blatant violation of the law." (Dean's words, not the direct Obama quote.) Dean went on to say that he hoped Obama would follow through on that.

Last week, Obama was using the formulation on the torture issue of, "I was clear throughout this campaign and was clear throughout this transition that under my administration the United States does not torture. We will abide by the Geneva Conventions. We will uphold our highest ideals." Some have expressed concern that his phrasing of "the United States does not torture" mirrors Bush's repeated assertions to that effect during his administration. In Bush's case, it was a combination of a legalism and a preppie sneer, a claim that no mistreatment of detainees that he had permitted could be called torture.

Digby has a good post on this, In The Future America Does Not Torture 01/10/09. The remainder of this post incorporates most of a long comment I left there.

Maybe I'm being too generous. But I read Obama's statements as saying (awkwardly) that the true America doesn't torture. Maybe he should put it that the "real America" doesn't torture.

It's entirely possible that he's using cagey phrasing to avoid setting off a panic that would lead Bush to hand out a bunch of pardons. I still haven't heard anyone who actually knows say whether the United States could prosecute someone using international law in American courts even if the person had been pardoned under federal law. Based on my own lay-person's understanding, I think it could be done.

I think there are some of Rummy's "known unknowns" out there in the torture program, e.g., we know people were murdered but we don't know how many. Robert Fisk in one of his columns referred to rumors that deaths in the Bush Gulag (as Al Gore called it) could run into the thousands. As Fisk put it, if mass graves turn up in this thing, that pushes the problem to an even uglier level. And there are probably "unknown unknowns", too, which may be the source of some of the churning on this from surprising sources.

I continue to think that not only the torture policy but intelligence deceptions, malicious political prosecutions, and the massive corruption we saw from Iraq to Katrina to (I'm very confident though there's no hard evidence yet) the financial bailout, all those things need to be prosecuted so that they will be stigmatized for future Dick Cheneys and their potential accomplices.

The torture policy in particular is such a radical violation of the basic rule of law that I just think it has to be treated as a criminal matter.

But I do disagree with suggestions that the actual torturers should be allowed to skate. I've started to identify the torture policy with the old lynch-law mentality. So I'll use an analogy and say that would be like prosecuting a governor or local Shurff who instigated or tolerated a lynch-murder but not prosecuting the people who actually tortured and murdered the victim. They all should be prosecuted.

And, like in Mob and white collar prosecutions, it often takes charges against lower-level perps to get hard evidence on the higher-ups.

The other thing about the individual torturers is that the torture policy involved the military in practicing clearly illegal actions. I know we're all supposed to preface any comments about our sacred military and our glorious generals with nice adjectives about their dedication, courage, etc. But torturers in uniform weren't being good and honorable soldiers. They were being torturers and, in at least some cases, murderers. And some of them actually have been prosecuted by the military, though the military has been very protective of higher-level military facilitators of the torture policy. But this whole policy was a major, radical departure from military discipline and the laws of war.

A final point on prosecuting the actual torturers. The Republicans have verbally worried a lot about what would happen if "unlawful combatants" were released from the Bush Gulag. But I haven't heard one single Republican - or, I suppose it's superfluous to say, a single Big Pundit - worry about what happens when all those trained torturers are released back into society. Soldiers in combat usually don't come back home to be wanton murderers. But that's largely because military discipline functions.

The torture policy involved a radical breakdown of military discipline. And what kind of sick **** doesn't say "no, I'm not going to do it" when ordered to commit some of the very physical perversities that have been in the US torture menu? Just as there was no case in the German Wehrmacht in the Second World War of a soldier being seriously disciplined for refusing to commit a war crime, I haven't heard of any American soldiers or CIA employees being disciplined for refusing to torture. When they come back home, are all of them going to be able to satisfy their acquired tastes by watching 24 or S&M porno flicks? I seriously doubt it. I prefer to see them taken off the streets for a few years and required to get psychiatric treatment, as well.

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