The President of the United States, after 9/11, and even perhaps before, asked people to break the law. He asked CEO’s to ignore the FISA law and defraud their customers by violating their privacy. He asked CIA officers to use torture. There are individuals and organizations out there that have committed crimes at the request of the president. There are individuals and organizations out there that refused to commit crimes at the request of the president. This is now creating a serious problem for Congress.
On both issues, illegal warrantless surveillance and torture, Congress is faced with difficult choices. Yesterday, we saw the spectacle of the Democratic chairman of the Senate Intelligence Committee arguing that the telecommunications corporations should not be held accountable for their crimes because it would be ‘unfair’ to them. It would unfair to them, according to Rockefeller, because:
These companies were assured that their cooperation was not only legal but also necessary because of their unique technical capabilities. They were also told it was their patriotic duty to help protect the country after the devastating attacks on our homeland.
Rockefeller is saying that is okay to break the law if the president tells you to. It is as simple as that. He pretends that the president (technically, ‘the government’) will be held accountable, but there is no evidence that he will be held accountable.
We know for a fact, that the Office of Legal Counsel within the Justice Department, issued assurances to CIA officers that it was legal to torture people. Now we are told that it would be unfair to hold these CIA officers accountable for their actions.
Senator Arlen Specter of Pennsylvania, the committee’s top Republican, said at a hearing Wednesday that any statement by Mr. Mukasey that waterboarding is torture could fuel criminal charges or lawsuits against those responsible for waterboarding.
“The facts are that an expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened,” Mr. Specter said.
Let’s think about this for a moment. Senator Specter is saying, with a straight face I might add, that the Attorney General of the United States cannot call ‘waterboarding’ torture because, if he does, it will make torture a prosecutable offense. The reality is that torture is already a prosecutable offense. Torture is a violation of the constitutional ban on ‘cruel and unusual punishment‘, it violates several signed treaties (which is also a violation of the Constitution), and it violates express statutory laws.
Anyone that tortured someone at the request of the president, violated all of these laws and committed a crime against the Constitution of the United States of America. There is only way around this, and that is to follow the Unitary Executive Theory of government.
Under this theory, no treaty can be ratified or law passed that takes away powers granted to the Executive branch by the Constitution. In essence, the administration is arguing that the FISA law usurped powers from the Executive by curtailing its ability to gather intelligence. And laws and treaties against torture do not apply, either because torture doesn’t exist unless it causes “serious physical injury, such as organ failure, impairment of bodily function, or even death”, or because the Executive must do what he deems necessary to protect the country (you have no rights when you’re dead).
On intelligence gathering, there is at least an argument to be made. But the Unitary Executive Theory rests on the primacy of the Constitution over statutory law, and it is the Constitution that bars ‘cruel and unusual punishment.’ Even under the Unitary Executive Theory, then, the president has no authority to torture people…or to define torture away.
The obvious remedy for a president that wantonly violates the law is to impeach them and convict them. A failure to do so can sometimes be justified, if there are mitigating circumstances. And, in these cases, the mitigating circumstances would be ‘9/11’. The question is, did 9/11 provide a legitimate excuse for violating people’s Fourth Amendment rights, and did it provide a legitimate excuse to torture people?
On the former issue, the president might be forgiven for an overabundance of caution…an irrational exuberance for doing all he could to keep the country safe. That doesn’t mean that he shouldn’t be held accountable, but it does mean that ‘censure’ might be more appropriate than impeachment. But on the latter issue, there never was any legitimate justification for authorizing torture. There is no sufficient remedy for committing such a loathsome crime that does not involve ‘removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States.’
Human dignity demands nothing less. Yet, here we are…with a nominee for the position of Attorney General, the chief law enforcement officer of the Federal Government, who is precluded from calling ‘waterboarding’ a form of torture because, to do so, ‘would put a lot of people at risk for what has happened.’
In both of these cases, illegal warrantless surveillance and the authorization of torture, Congress is now faced with the consequences of ‘taking impeachment off the table.’ You can take it off the table but you cannot make the crimes go away or prevent them from becoming a precedent without impeachment.
Congress doesn’t want to punish telecoms and CIA officers for obeying a criminal president. They were only following orders. But, they must hold someone accountable. If they confirm Mike Mukasey after he testified that he doesn’t know if torture is torture, they’ll ratify torture. If they grant immunity to the telecommunications corporations without punishing the president, they will ratify illegal warrantless surveillance.
One of the arguments for impeaching Bill Clinton was that, no matter how small the crime, tolerating crime creates a bad precedent. The truth is, impeaching a popular president over a trivial crime is what causes a bad precedent.
George W. Bush is not a popular president. Dick Cheney is not a popular vice-president. They are not running the country well or competently. Their crimes are significant and serious, not trivial. Their crimes have brought dishonor on the entire nation…a dishonor that can be expunged in only one way.
I know that this Congress will not begin impeachment hearings over torture and illegal warrantless surveillance. They should, but they won’t. But what they can do, what they have the power to do, is to not confirm Mike Mukasey and to not grant immunity to the telecommunications corporations. That is the least they can do.
Also put this in orange.
Notice what was actually said “… the chief law enforcement officer of the Federal Government, who is precluded from calling ‘waterboarding’ a form of torture because, to do so, ‘would put a lot of people at risk for what has happened.’ “
The only effort being made is to protect the TORTURERS. Never, ever, to protect the victims. The victims, past and future, are not at risk. They have no rights. They exist only to be squeezed for information and then their shattered husks discarded while simultaneously prevented by Administrative Order from speaking out about their suffering or seeking redress for their pain.
In other words, all of us are in the hopper now.
What’s pathetic is that common sense is now a ‘fringe position’.
Ignorance of the law is no excuse.
Their lawyers should have known that and they should have gotten assurances from the FISA courts.
Joan Walsh at Salon has posted this video from Current TV that demonstrates what we are talking about here.
I will give you her caveat:
There is no way someone can watch this video and still advocate or hold even a neutral view on waterboarding. This is the very face of torture. And our government is doing this in our name.
“That is the least they can do.”
unfortunately, congress has already amply demonstrated that the LEAST they can do is dramatically less than any of us are capable of accepting… it may be an extremely hard pill to swallow, but we had better start accepting the fact that our democratic congressional leadership, in company with a good many other congressional democrats, are working hand-in-glove with congressional republicans and the executive branch on our democracy’s “death by a thousand cuts…” if they haven’t acted already, in the face of overwhelming abuses, violations and outright crimes committed by this presidential administration, what possible grounds do we have for thinking that they will do so now…? we are better advised to use our time and energy figuring out alternative ways to get our country back and restore our constitution… contacting my senator, harry reid, and receiving in reply, yet again, boilerplate that says nothing, backed up by no action or change in position, has definitely become an empty exercise…
I agree. The Democratic party is basically scared to do anything more than give Mukasey a tongue lashing before they give him what he wants.
I know it is morally worse to torture than to be scared of standing up to torturers . . . but I just can’t shake my disgust for the Democrat weenies and I personally consider them to be more responsible than the right-wing thugs.
So, if a Senator asks Mukasey if it would be legal for Dick Cheney to take a shotgun and shoot someone in the face, it would be an unfair question because Mukasey doesn’t know whether Dick Cheney has shot someone in the face. Oh wait…
I would bet you anything that’s not what their lawyers told them, at least not at first. Corporate lawyers, whose job it is to protect the profits of the stockholders and company executive and board members collective asses, are some of the most cautious, risk-adverse people you can imagine. That’s their job, after all, to advise against any action, practice or public statement that will hurt the company’s bottom line.
However, that doesn’t mean they will advise a company to NOT DO what it’s planning to do, or to stop engaging in a profitable but potentially illegal or damaging action or means of doing business, if that’s what the company really wants to do. What they will do is come up with the CYA policies — the “legal” approach to not solve the problem but keep the resulting shitstorm from getting the executives’ suits dirty or cutting into the profit margins. Risk management doesn’t mean “don’t do things that instigate lawsuits or breaks the law” — it means “find a way to pass the risk on to someone else, or otherwise make us not legally responsible for it.”
So what probably happened is their lawyers said “this is technically illegal. This puts our company at a huge risk of liability if this is investigated by, say, Congress, or the FCC, or the Justice Dept. Yes, of COURSE we want to do our patriotic duty. But you can see the RISK here, if this doesn’t work out. So you have to assure us that in doing so, our company will never be held liable for the results. And never means not ever, regardless of whether this little deal becomes public or whether any information you receive from us ever goes missing, or never proves at all useful.”
And of course, the telecoms received that promise. They also got some concessions (apparently) on those pesky FCC regs and so on. More consolidations would be approved. And the telecoms donated thousands to the re-election coffers of their “friends” in both parties (hedging their bets in case of a change in management).
And here’s the thing. IF by some miracle (and I’m beginning to fear a miracle is what we need here), the telecoms do NOT get away clean, if they ARE held accountable, or at the very least, all the sordid details of the deal are laid bare and public opinion is sufficiently negative that the laws are tightened and those companies suffer financially enough to make an impression — then the chances of any company doing something like this again are much MUCH reduced. Because Corporate Lawyers are such cautious, risk-adverse creatures, and they learn from other corporate lawyers’ mistakes.
If they are NOT held accountable…. it will be even harder to do so the next time, and the crime will be worse, and have even greater cost and impact.
Precedent has a lot of weight. This needs to sink down deep.
Here Here! Great post. So sad that our media and the majority of our politicians are stepping over themselves to give get out of jail free cards to torturers and criminals. And the majority of Democrats have to be absolutely cajoled into even batting an eye. The Democrats have now effectively killed any prosecutions for these crimes because they have collectively decided that they want to look “tough” and would never agree to uphold the rule of law re torture.
If the Democrats had a spine (I know–keep dreaming) they would have hearings and demonstrate for the American people what waterboarding is. I will volunteer. Or better yet. Make a public casting call for any right-wing hack, like Rush, to volunteer to be waterboarded as part of a “fact-finding” investigation . Have a demonstration on the house floor.
Mukaskey says he doesn’t know the details of what is involved . . . . let’s show him and then let him decide. Call a historian to testify about how the Spanish inquisitors did it. We can have the Japanese show us how they did it. Subpoena the military records of the people the U.S. HUNG for these crimes.
But that would make Hillary and Obama and the rest of the Democrat invertebrates look too radical . . . . I guess. So America will go on excusing torture and providing immunity to tortuers.
Thanks for reminding us all of the abosolute fact that crimes were committed . . . and Congress will do nothing except use the Mukasey hearings as a way to lift a little bit of weight off their consciences. They will express their misgivings . . . then go right back to giving Bush what he wants . . an AG that does not prosecute torture.