Wednesday, April 22, 2009

The road to prosecution

Raúl Alfonsín of Argentina: he also had to deal with his predecessors' torture crimes

Following the story of the torture prosecution issue the last few days has been a lot like watching an out-of-control car careering down the freeway. While the Highway Patrol is broadcasting special alerts nonstop saying, "Pay no attention to reports of an out-of-control car on the freeway. We need to look forward, not backward."

It may be wishful thinking. But despite the fainting spells over the whole thing among the Beltway Villagers at the thought that fine public servants like Dick Cheney and Abu Gonzales might be in legal trouble, last Thursday's release of the explicit torture memos may turn out to be a breaking point in the process of accountability for the torture policy. The information that is coming out since then and the increasing anxiety among those at risk for prosecution and their political allies definitely has the feeling of a new stage in this thing.

The collapse of our national news media has given this entire debate over torture for the last five years an unreal nature that it never should have acquired. Torture is a crime. It's a crime in American law and a crime in international law fully binding on the United States. And the pertetrators don't get to define torture; its definition is well established in the statutory law and case law, not least of which are case prosecuted against torturers by the United States itself in the past.

Our off-the-tracks news media and Beltway Village pundits have been discussing this in the manner that they have trained their Village-friendly minds to work: the horse race is the most interesting thing to report (who's bringing pressure on who, in this case); Republicans are more credible on "national security" (thus a group of operatives tying up a prisoner and subjecting him to the drowning torture is a sign of manly toughness); members in good standing in the Village should never be held legally accountable for their actions (while rude outsiders like the Clintons should be prosecuted for things they didn't do); Democrats must always show their credibility by siding with Republicans against the dreaded "left" (like law-and-order advocates who want to see torturers prosecuted).

This boneheaded foolishness renders it almost impossible for pundits to address this extremely serious issue in a serious way. As Obama finally stated clearly today, at least in regard to the Mob-lawyer actions of the government attorneys involved in facilitating the torture program, the decision on prosecuting criminals is not his to make. It the duty of the Attorney General - the legal duty that is especially sharply defined by treaties in the case of torture - to honestly investigate and prosecute torture crimes where there is sufficient evidence to prosecute. If the Villagers weren't so obsessed with protecting their own, and the reporters weren't so obsessed with protecting their precious "access" so they can write puff pieces and put out spin on behalf of their favorite politicians, they would be treating it as a scandal in the making that the Obama administration seems to be trying to avoid doing their straightforward legal duty on the torture crimes.

Let me say here that I'm not trying to make a judgment about what Obama's longer-term game plan may be. I'm trying to stick to what he's actually doing and what we clearly know about that. I'm convinced that as a political matter he would rather avoid it. Although why that should be so is no small mystery to me: how is exposing something that utterly discredits the opposition party a political liability? I'm assuming it's because he really would like to govern as a bring-everyone-together bipartisan concilator. But the very fact that the previous administration committed such serious crimes and that the Republican Party loyally supported it in doing so, that in itself makes it difficult for the Republicans to act in such a broadly bipartisan way, even if they were otherwise inclined to do so. Which they aren't.

What I will say is that Obama is clearly not cutting off all retreat for himself on the matter of prosecutions. At the risk of sounding like a starry-eyed fanboy, I would even say that his actions so far have not been inconsistent with a conscious policy of building a political demand for torture prosecutions such that it will force the Democrats in Congress to act like they have some backbone on the issue. I don't think that's actually what he's been attempting. I think he would like to have a way to avoid prosecuting the torture perpetrations for those high-minded "reasons of state". But it was specifically to rule out such discretion for "reasons of state" that the Torture Convention is so specific about the requirement to prosecute.

Dick Cheney made a somewhat strange statement Monday evening that he was asking the CIA to release currently classified information that would support his case that torture produced useful intelligence information. You have to wonder if he fully understands he's no longer running the government. More likely, he's invited torture supporters to selectively leak information to support that case.

Cheney is a genuinely evil man and his policies have produced more than one disaster. But he's no dummy. He's going with the flow here. Transparency won out on Obama's release of the torture memos. Cheney and other torture supporters blasted him for endangering national security by doing so. Now Cheney is challenging Obama to be even more transparent and release information about the specific information gained from torture victims. As long as the administration holds back on that information, the torture supporters can say, look Obama is helping The Terrorists by releasing the torture memos but abusing the power of secrecy by holding on to information that proves that torture helped prevent terrorist attacks.

Mark Danner points out the dilemma of such a state of affair in his New York Review of Books piece, The Red Cross Torture Report: What It Means 04/02/09:

Unfortunately, these contrary accounts, however convincing ... generally come from unnamed officials and cannot serve as definitive proof, or as a sufficiently credible repudiation of what former officials, including the President of the United States, still assert. Far from ending the discussion about whether torture really was, as Cheney insists, "absolutely crucial to getting us through the last seven-plus years without a major-casualty attack," these ongoing battles between extravagant claims and undermining leaks will ensure that it persists.

It is because of the claim that torture protected the US that the many Americans who still nod their heads when they hear Dick Cheney's claims about the necessity for "tough, mean, dirty, nasty" tactics in the war on terror respond to its revelation not by instantly condemning it but instead by asking further questions. For example: Was it necessary? And: Did it work? To these questions the last president and vice-president, who "kept the country safe" for "seven-plus years," respond "yes," and "yes." And though as time passes the numbers of those insisting on asking those questions, and willing to accept those answers, no doubt falls, it remains significant, and would likely grow substantially after another successful attack.

This political fact partly explains why, when it comes to torture, we seem to be a society trapped in a familiar and never-ending drama. For though some of the details provided — and officially confirmed for the first time — in the ICRC report are new, and though the first-person accounts make chilling reading and have undoubted dramatic power, one can't help observing that the broader discussion of torture is by now in its essential outlines nearly five years old, and has become, in its predictably reenacted outrage and defiant denials from various parties, something like a shadow play.
Only the kind of definitive, court-vetted, legally-binding accounting that well-designed prosecutions will provide are going to lay the facts out in a way that will minimize the liklihood of such a thing ever recurring. That's what restoring the rule of law means.

It also reminds us of the balance that has to be struck between arguing against torture based on its inherent evil and arguing against it on pragmatic grounds, e.g., that it doesn't work. To put the moral case most bluntly, even if it is a valuable way to obtain information, torture is still wrong because it's a fundamental violation of human dignity and because it inevitably victimizes innocent people.

On the other hand, the pragmatica argument can't be entirely ignored because advocates of torture always use the argument that they are protecting us from the Very Scary People, whoever those may be at the moment. There's no doubt that torture sometimes produces accurate and/or useful information. There's also so serious doubt that non-torture interrogative techniques and the normal processes of law produced consistently better information.

And opponents of torture need to demand that torture supporters cop to the other known realities about torture. We know that torture produces bad information, more bad information than good. Acting on bad information often produces real damage. We also know that the use of torture means innocent people with no terrorist secrets to tell are injured in any torture program. We know torture produces false confessions, which in the case of real crimes committed means the guilty go free to commit more crimes. We know that torture's main function is as a tool of state terror, not as a tool of criminal investigation; the latter is only an excuse for the former.

The reality is that none of these "practical" consequences is entirely inseparable from the "moral" problems of torture. Opponents of torture and advocates of prosecuting torture crimes don't need to be afraid of discovering that some torture session sometime produced some kind of information that proved useful to law enforcement in some way.

This comic-book argument about the "ticking-time-bomb scenario" also deserves to be buried. Calling it sophomoric is an insult to even the most negative connotation of "sophomore", i.e., if we actually know someone has the vital information on the fabled ticking time bomb, why can't those same powers of telepathy tell us where the bomb is? It's a sign of the depths to which our public discussion has sunk that such a notion has been discussed by respected officials and Big Pundits for years now as though it were something other than the most simple-minded comic-book fantasy.

All of which is a way of saying, the Obama administration should call Cheney's bluff on this and get out as much material on this as they can. And use it in criminal prosecutions against the torture perpetrators.

I also want to mention again here that the torture apologists are not arguing any longer about an eminent repeat of 9/11. They are arguing that torture should be a permanent option in American policy.

It's also important to watch how the press and the administration use the word "torture". They shouldn't be using euphemisms about this any more. Torture is a crime. The odious Karl Rove told Sean Hannity on the subject of prosecuting torturers, "What they've essentially said is, If we have policy disagreements with our predecessors, what we're going to do is we're going to turn ourselves into the moral equivalent of a Latin American country run colonels in mirrored sunglasses."

No, the task facing the United States legal system right now is the task facing government that the one faced by the government of the late Raúl Alfonsín of Argentina: prosecuting the crimes of the military junta that ruled Argentina prior to the restoration of democratic government in 1983.

I would note also that Spencer Ackerman, who is one of our better young journalists in Washington - an actual journalist, not a Village Idiot - is reporting on yet another unreleased torture memo in DOJ Sits on Secret CIA Interrogation Memo Washington Independent 4/21/09.

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