Saturday, January 24, 2009

The looming cloud of accountability

If the elected Islamist government of Turkey can do it, why can't we?

Turkey is putting 60 officials on trial over a case of torture of a protester who had been taken into police custody, which resulted in the death of the victim. (Folter in der Haft: 60 türkische Beamte vor Gericht Die Zeit 21.01.2009.

Or is it that Islam puts a much higher value on human rights than what the brand of Christianity practiced by much of today's Republican Party?

Not to overstate the point: a number of Americans have been tried and convicted in connection to torture cases, mostly in military courts-martial. So it's not as though the anti-torture laws have been completely in abeyance. But if Turkey can indict 60 people in relation to one case of torture-murder, it illustrates how much more lightly the Cheney-Bush administration took the crime of torture. Because, of course, torture is what they wanted to occur.

John Dean has just published an interview (Legal Jeopardy For American Torturers Here and Abroad? Findlaw.com 01/23/09) with Philippe Sands, author of the excellent study of government lawyers and the Cheney-Bush torture policy, Torture Team: Rumsfeld's Memo and the Betrayal of American Values (2008). In his comments on the interview, Dean's views seem to have evolved significantly from the position he took at the Netroots Nation convention this past July.


The video of the presentation, which also featured Cass Sunstein and Michael Waldman is available at The Next President and the Law. There's a transcript, too, that unfortunately doesn't include most of John Dean's opening presentation.

The panelists, especially Cass Sunstein, seemed genuinely surprised that much of the audience was taken aback and even appalled by the fact that the panelists were assuming that no prosecution of senior officials of the Cheney-Bush administration would take place under the Obama administration. I was certainly among those appalled by it. But I got the impression then, and Dean's new article seems to confirm it in his case, that they were genuinely surprised at the notion. It wasn't so much that they were positively opposed to it. It was like it had never really occurred to them as a serious possibility.

But in his new article, Dean has a more law-and-order take:

Remarkably, the confirmation of President Obama's Attorney General nominee, Eric Holder, is being held up by Texas Republican Senator John Cornyn, who apparently is unhappy that Holder might actually investigate and prosecute Bush Administration officials who engaged in torture. Aside from this repugnant new Republican embrace of torture (which might be a winning issue for the lunatic fringe of the party and a nice way to further marginalize the GOP), any effort to protect Bush officials from legal responsibility for war crimes, in the long run, will not work.

It is difficult to believe that Eric Holder would agree not to enforce the law, like his recent Republican predecessors. Indeed, if he were to do so, President Obama should withdraw his nomination. But as MSNBC "Countdown" anchor Keith Olbermann stated earlier this week, even if the Obama Administration for whatever reason does not investigate and prosecute these crimes, this still does not mean that the Bush Administration officials who were involved in torture are going to get a pass. [my emphasis]
And this comment of Dean's indicates specifically that he has re-thought the issue after being impressed with the level of concern about the issue of Bush officials getting away with serious felonies:

After reading Sands's book and, more recently, listening to his comments on Terry Gross's NPR show "Fresh Air," on January 7, 2009 I realized how closely the rest of the world is following the actions of these former officials, and was reminded that these actions appear to constitute not merely violations of American law, but also, and very literally, crimes against humanity – for which the world is ready to hold them responsible. [my emphasis]
Paul Krugman also gets to the point on legal accountability for lawbreakers of the Cheney-Bush administration in Forgive and Forget? New York Times 01/16/08:

Now, it’s true that a serious investigation of Bush-era abuses would make Washington an uncomfortable place, both for those who abused power and those who acted as their enablers or apologists. And these people have a lot of friends. But the price of protecting their comfort would be high: If we whitewash the abuses of the past eight years, we’ll guarantee that they will happen again.

Meanwhile, about Mr. Obama: while it’s probably in his short-term political interests to forgive and forget, next week he’s going to swear to "preserve, protect, and defend the Constitution of the United States." That’s not a conditional oath to be honored only when it’s convenient.

And to protect and defend the Constitution, a president must do more than obey the Constitution himself; he must hold those who violate the Constitution accountable. So Mr. Obama should reconsider his apparent decision to let the previous administration get away with crime. Consequences aside, that’s not a decision he has the right to make. [my emphasis]
And that's the real bottom line in the actual circumstances we face: "If we whitewash the abuses of the past eight years, we’ll guarantee that they will happen again."

Or, as one questioner at the Netroots Nation panel memorably put it:

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.]
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