Michael Isikoff and Evan Thomas, report in Newsweek:
Though administration officials declared that CIA interrogators who followed Justice’s legal guidance on torture would not be prosecuted, that does not mean the inquiries are over. Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. is seriously considering appointing an outside counsel to investigate whether CIA interrogators exceeded legal boundaries—and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Even if Holder takes a pass, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, is still pushing for a “truth commission.” In a democracy, the wheels of justice grind on—and the president, for good reason under the rule of law, does not have the power to stop them.
This is one of the most challenging problems facing the administration, and that is saying something considering the state of the economy and the situations on the ground in Iraq and Afghanistan. One of the reasons the problem is so difficult is precisely because the administration doesn’t have the power to impose one simple course of action. Regardless of what Obama wants, his Attorney General has the ultimate authority to make these decisions. And regardless of what Eric Holder does, there are still the Congressional oversight committees. And regardless what Congress does, there are still the civil courts. And regardless of what our Supreme Court decides, there are still International courts. After that, the historians get involved.
The problem cannot be quarantined and there is no mechanism to just make it go away. The best the administration can do is to come up with a plan that allows them to deal with the issue is concrete steps that prevent it from becoming all-consuming. I have real concerns about their approach because it is very hard to stomach the idea that no one who conducted torture (waterboarding, slamming people into walls) will be prosecuted as long as they didn’t go beyond what the OLC authorized. But, by making this distinction, the Obama administration at least creates a narrower and more manageable field of action. They do not, for example, have to investigate who was present at every interrogation, what was done at every interrogation, who authorized each and every method of interrogation, and so on. If they were to attempt to do that, it would become all-consuming.
If they keep their eyes on the two main things that Isikoff and Thomas mentioned (officals that exceeded ‘legal’ boundaries and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place) then they can be very focused in their approach. It also has the advantage of avoiding a situation where underlings are punished while bigwigs get off scot-free. There could be some wisdom in the Obama administration’s approach, even if I find it dubious on moral grounds and questionable as a matter of International Law. Here is what I would like to see (within the context of what Obama and Holder have already announced).
1. That they determine that the OLC violated the law when they authorized torture. They should recommend that Judge Bybee be impeached, and they should move to disbar Yoo, Bradbury, and any other lawyers intimately involved in the process. Grand juries can determine whether prosecution is appropriate.
2. All interrogators, medical personnel, and psychological staff that engaged in acts of torture should be quietly terminated from government jobs or their contracts should be terminated.
3. High-ranking CIA officers that pressed for torture authorization should be quietly terminated. Grand juries should decide if they should be prosecuted.
4. An independent prosecutor should be introduced to unravel the decision making at the top, and their grand juries should make the ultimate decisions on who should be prosecuted and for what.
At the end of this process, Obama will still have the option to use his pardon power if he deems it in the national interest. But that’s a decision that is far down the line. If Obama and Holder follow these basic outlines, they will have done enough, in my opinion, to satisfy the requirements of our obligations. But I will still see it as overly lenient.
I agree completely, except I would add;
5. Name names. The American public has a right to know who went to far, and who refused to go to far.
Great analysis Boo!
as a rule, you don’t name names of people you are not indicting. It’s a good rule.
However, there should be some (a lot, in my opinion) indictments and people would know about them.
The last US President to take on the CIA was Jimmy Carter who actually purged a lot of the worst elements from the agency. The scum of the scum joined the Reagan campaign and seem to have been able to run an operations-center-in-exile to bring Carter down.
One thing I find remarkable about the “left response” to Obama is the dewy eyed naive theory that the President actually commands the intelligence agencies.
Actually, you know, the president does command the intelligence agencies. That doesn’t mean that current and (especially) former intelligence officers can’t undermine a president, even fatally. But it does mean that the president is their boss. I don’t want a president who is afraid to confront the Intelligence Community and to give them good moral guidance.
Commanding the Wild Animal is one thing, controlling it is another.
Indeed, but one must try.
Absolutely. Though the movie is well worth watching in the current context, because the saga of Nixon’s downfall remains a cautionary tale in more ways than one.
No. The President is nominally in charge of the intelligence agencies. But Allende was nominally in charge of Pinochet. Given the history of the CIA, any US president who presumed that he could control the agency easily, by decree, would have to be utterly naive.
Look at your own post. There is Angleton blithely telling Mondale that CIA is not bound by US law. And that was prior to Casey’s triumphant return.
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(FAIR) – During the insurrection against the U.S. occupation of the Philippines (1899-1902), the U.S. military tortured suspected members of the Filipino resistance with a similar technique that they referred to as the “water cure.” A Washington Post (9/23/1902) news article on this practice, which referred to it as “the form of torture known as the water cure,” was typical of newspaper reporting of the time–which used the term “water cure” more or less interchangeably with the word “torture.” When a U.S. Army major was court-martialed and then found not guilty after being accused of administering the “water cure” to Filipinos, the Post reported on the verdict (6/7/1902) under the headline “Torture Is Upheld.” Similarly, a Chicago Daily Tribune headline (1/9/1903) referred to “torture orders” in an article about another army major accused of having authorized the use of the “water cure.” Newspaper reports about the use of the “water cure” by U.S. occupation forces in Haiti similarly identified it as “torture” (New York Times, 5/4/1907, 5/9/1921). [Philipinos and White Supremacy – 1899]
Race-Making and Colonial Violence in the U.S. Empire:
The Philippine-American War as Race War
Following World War II, when U.S. military tribunals tried Japanese military officials for war crimes for torturing prisoners of war, graphic accounts surfaced about the practice called “the water treatment,” which, as federal judge and laws of war scholar Evan Wallach observed (Columbia Journal of Transnational Law, 2007), “differ[ed] very little” from the “descriptions of waterboarding as it is currently applied.” One of the common practices of the Japanese military was described as follows in the Judgment of the International Military Tribunal for the Far East: “The victim was tied or held down on his back and cloth placed over his nose and mouth. Water was then poured on the cloth.”
This practice, first defined in the New York Times (7/27/42) as “forced drownings,” was referred to by the Washington Post (10/7/46) as “water torture” and by the New York Times (9/6/45) as “the Oriental `water torture.'” Other newspaper accounts (New York Times, 8/16/42, 8/31/42, 12/25/45, 7/26/47; Washington Post, 9/6/42; Chicago Tribune, 6/9/46) unequivocally defined the “water treatment” as a form of torture. Meanwhile, reports of the use of identical practices against American POWs in the Korean War were covered in the New York Times (8/9/53) as “stories of planned and deliberate torture.”
Over a decade later, “water torture” was mentioned in the headline of a Washington Post article (3/15/68) about the Australian army’s admission that a soldier had administered the “water treatment” to a Vietnamese woman suspected of being a guerilla. Six months later, the Post (8/12/68) published a front-page photographic expose of U.S. soldiers administering this same “water treatment” to a Vietnamese prisoner. A follow-up report in the Post (10/29/70) referred to this practice, which resulted in charges against the commander of the U.S. Army troops in South Vietnam, as “an ancient Oriental torture called `the water treatment.'”
Media reports commonly used the term “water torture” to describe the Cambodian Khmer Rouge’s practice of tying prisoners to a board and pouring water over their noses and mouths. In a feature article about the late Cambodian artist Vann Nath, who painted pictures of the Pol Pot regime’s various torture devices (including perhaps the clearest visual precursor of today’s “water board”), the L.A. Times (8/8/97) described the artist’s “contributions to history as a witness to the systematic torture and execution of Pol Pot’s victims. He painted images of acts he witnessed or heard described while in prison: electric shock treatment, water torture.” The San Diego Union-Tribune (12/16/89) also referred to the Khmer Rouge’s methods of interrogating through “water torture.”
In 1983, media reports on the trial of a Texas sheriff who had used a technique remarkably similar to today’s “waterboarding” also used the term “water torture” (UPI, 8/31/83, 9/1/83, 9/7/83). One article published in the New York Times (9/2/83) about the case began, “Two convicted burglars testified today that they had watched in fear as a former East Texas sheriff and his deputies used a water torture.” In another New York Times article (9/1/83), the news that “another former deputy testified that they had handcuffed prisoners to chairs, placed towels over their faces and poured water on the cloth until the prisoners gave what the officers considered confessions” was summarized with the headline: “Ex-Deputy Tells Jury of Jail Water Torture.”
DROP BY DROP:
FORGETTING THE HISTORY OF
WATER TORTURE IN U.S. COURTS (pdf)
"But I will not let myself be reduced to silence."I’m not happy about Obama excusing lower ranking CIA personnel from prosecution, but I wonder to what extent he had to do that just to insure the personal safety of himself and his family? Imagine a CIA with lots of agents who may have had some personal involvement in the torture that took place at Abu Ghirab and Guantanamo– they would be worried about being prosecuted and they are experts at coups and assassination. Not a pretty picture….
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Would become BHO’s Bay of Torture Memo’s ending near a book depository in Arlington Va.
"But I will not let myself be reduced to silence."Booman-
A commonsense approach for torture prosecutions
While it may be immensely satisfying to howl for blood, start buying up the hemp rope supplies and design a series of tasteful 13 step platforms (and I’m only 1/2 tongue in cheek as that what we did for the same crimes 60 yrs ago) we must look to the future and what’s best for society.
America’s future demands a full accounting for these crimes; but not from the tools who performed them. The hands that directed them have to be called to answer. An accounting that was missing after Watergate and Iran Contra; which is why we see some of the same faces again and again. If not, in 20 years we will see that same line in a functionary’s bio…”served as Assistant to the Vice President, Sec. of Defense, or National Security Council in the Geo W Bush Admin.”
For a while I have advocated a real Truth and Reconciliation Commission, with subpoena and immunity powers to get to the heights of their corruption; let public acclaim be on those who come forward (John Dean) and shame who try to hide in the shadows. But with the subservient media outlets at their disposal, that shame may not materialize. As a result, I think you are right in the approach and outlook in the above. Let them be subjected to the only form of torture sanctioned by US Law: being slowly flayed and torn to pieces by prosecutors in Federal Court.
Jeeze, some may prefer being waterboarded.
Ridge
That so many of these people are still in our employ is galling beyond belief. The lawyers must be disbarred, and the medical personnel stripped of their licenses to practice.
I’m not so sure about the “quietly” part.
“…One thing to keep in mind here: the president does not actually have the power to decide who gets prosecuted in this country and neither does his chief of staff. We have an independent justice department that is supposed to operate outside of politics. Holder’s job is to “look back” and see if crimes were committed. Just because Bush’s Attorneys General were all toadies doesn’t mean that’s the way it’s supposed to be.
A special prosecutor would solve this whole problem for Obama and Holder. The best way to get the hot potato off their desks is to give it to an independent, career prosecutor.”
Eyes on the prize, citizens.
“FOR IMMEDIATE RELEASE
Thursday, April 16, 2009
http://WWW.USDOJ.GOV
AG
(202) 514-2007
TDD (202) 514-1888
Department of Justice Releases Four Office of Legal Counsel Opinions
In connection with ongoing litigation, the Department of Justice today released four previously undisclosed Office of Legal Counsel (“OLC”) opinions – one that OLC issued to the Central Intelligence Agency in August 2002 and three that OLC issued to the CIA in May 2005.
“The President has halted the use of the interrogation techniques described in these opinions, and this administration has made clear from day one that it will not condone torture,” said Attorney General Eric Holder. “We are disclosing these memos consistent with our commitment to the rule of law.”
Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.
The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.
To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.
“It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Holder said.
After reviewing these opinions, OLC has decided to withdraw them: They no longer represent the views of the Office of Legal Counsel.”
The knife blade cuts both ways, and only the surgeon’s scalpel can cut fine enough. There is so much here…
Thinking about the issues involved in possible prosecutions for torture, I was reminded, in a clarifing memory from the past, of the 1964 ballad by Bob Dylan entitled “The Lonesome Death of Hattie Carroll”.
What is before us now is whether the elite of our country are indeed subject to the same laws as the rest of us. Undeniably, there is palpable discomfort within the Administration about the prospect of investigations of heinous torture ordered and condoned by the highest levels of the prior Administration.
Does the Ladder of Justice have no top and no bottom?
One of the best diaries I’ve read to date:
Pragmatism on Torture Another ‘Sorry Kind of Wisdom’
by Meteor Blades
Sun Apr 19, 2009 at 09:41:11 PM PDT
Three of the saddest days in my life occurred in 1996 when I stood at the edge of a mass grave being excavated in Guatemala.
It was a product of right-wing death squads who roamed at will in a country whose most murderous leaders were praised in Washington.
After the 1954 CIA coup, the military there was trained in the United States and by visiting Green Beret advisers.
Vigorous support by the ruling oligarchs for U.S. corporate interests marked one of the darkest episodes since the Monroe Doctrine and Roosevelt Corollary gave Washington “legal” support for meddling in the affairs of this hemisphere’s sovereign nations.
Watching as the decomposed bodies of more than 100 men, women and children – many of them burned and a few with their thumbs still tied behind their backs – were uncovered and photographed and brought out of the ground as respectfully as possible, I wondered how many of my fellow Americans were aware that U.S. policy had helped put these people into the ground.
Certainly the story didn’t get a lot of play in the U.S. media at the time, and when it did, almost always unmentioned was how the CIA had overthrown the elected government 40 years before and how the Reagan administration had praised a mass murderer and gotten around a ban on military assistance to the Guatemalan government by renaming some such aid “civilian.”
The killings that put those people and thousands of other Guatemalans into mass graves occurred at a time when the CIA was writing torture manuals for use by Central American military forces, some of whom doubled as death squads.
Today was for me another viciously sad day. To be sure, it couldn’t match the raw horror of seeing massacred people removed from a grave that may have included the bodies of some whom my tax money helped pay to torture.
But I nonetheless suffered from a powerful echo. Just as nobody then was brought to account for actions that violated both international law and basic human decency, it became finally apparent today – after months of hints – that nobody is going to be brought to account for carrying out torture or ordering it to be carried out against suspects captured in the wake of the September 11, 2001, attacks.
According to the BBC, the UN special rapporteur on torture, Manfred Nowak, says the United States must, under the U.N. Convention against Torture, prosecute those who engage in it:
“The United States, like all other states that are part of the UN convention against torture, is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court,” Mr Nowak told the Austrian daily Der Standard.
That apparently makes no difference to the Obama administration, which, in spite of all the welcome talk about the rule of law, has come to the astonishing conclusion that holding people accountable for criminal behavior or ordering others to commit criminal behavior is not about justice but rather retribution.
It should be instructive to see how such a perspective plays out when it comes to this document. Surely, using the same logic, we can empty the federal prison system and deeply slash the federal court budget.
It’s still unclear exactly how much the offices of the previous President and Vice President participated in the drafting of the four recently released memos on torture and the nine previously released memos that were crafted as guidelines on how the executive branch could evade the law. The level of their participation would certainly have been useful information to obtain.
It would have been helpful to a potential prosecutor to know whether those who ultimately ordered torture against suspected terrorists were also engaged in devising definitions stating that the torture they would be ordering wasn’t actually torture.
If they were, and there is every good reason to believe so, it’s not unlike having John Gotti walk free after helping to draft guidelines for laws on racketeering.
We have been led to believe by many who have engaged this debate over the past three months that President Obama was playing 3D chess while the rest of us played checkers.
There was a process going on, we were told, and it would take time, but eventually, after the economic mess and the health care crisis and other matters of importance were dealt with, those who ordered torture would be brought to account. We should, we were told, chill out because Obama has “frakkin’ got this.”
Now we know that justice for those who ordered torture will consist of sipping chilled piña coladas, commanding stratospheric lecture fees and drawing big advances for their memoirs.
Pragmatism vs. ideology, we are told, is the art of getting the good achieved instead of holding out for the perfect, which never comes to fruition. This means doing, in effect, “what works.”
That’s the benign version, and even idealists – or, let us say, idealistic pragmatists like me – can go along with policies that provide half a loaf when the alternative is no bread at all. But there is another kind of pragmatism, the kind that seems to have led to this no-prosecutions decision, and it is anything but benign and beneficial.
Chris Hayes spoke to it last December at The Nation when he wrote:
Indeed, in the wake of the 9/11 attacks, “pragmatists” of all stripes–Alan Dershowitz, Richard Posner–lined up to offer tips and strategies on how best to implement a practical and effective torture regime; but ideologues said no torture, no exceptions.
Same goes for the Iraq War, which many “pragmatic” lawmakers–Hillary Clinton, Arlen Specter–voted for and which ideologues across the political spectrum, from Ron Paul to Bernie Sanders, opposed.
Of course, by any reckoning, the war didn’t work. That is, it failed to be a practical, nonideological improvement to the nation’s security.
This, despite the fact that so many willed themselves to believe that the benefits would clearly outweigh the costs.
Principle is often pragmatism’s guardian. Particularly at times of crisis, when a polity succumbs to collective madness or delusion, it is only the obstinate ideologues who refuse to go along. Expediency may be a virtue in virtuous times, but it’s a vice in vicious ones.
There’s another problem with the fetishization of the pragmatic, which is the brute fact that, at some level, ideology is inescapable. … Alan Greenspan, of all people, made this point deftly while testifying before Henry Waxman’s House Oversight Committee.
Waxman asked Greenspan, “Do you feel that your ideology pushed you to make decisions that you wish you had not made?” To which Greenspan responded, “Well, remember that what an ideology is, is a conceptual framework with the way people deal with reality. Everyone has one. You have to–to exist, you need an ideology. The question is whether it is accurate or not.”
It is possible to achieve what President Obama wants and what the vast majority of our nation wants – to move forward in dealing with the crises in the economy, health care, energy and the environment – and simultaneously deal appropriately with those leaders who culminated decades of secret, U.S.-backed torture with torture-enabling legal arguments so transparently ludicrous as to embarrass the inventors of sophistry. After all, as Barack Obama once rightly told candidate John McCain, the Presidency by its very nature requires multitasking.
Alas, prosecution now has been taken off the table.
So what’s left? We’re unlikely to get a full-bore investigation like those conducted of the intelligence establishment by Otis Pike and Frank Church in the mid-’70s.
Even the lowest rung on the accountability ladder hasn’t made any headway. The last time Senator Patrick Leahy mentioned the much-criticized “truth commission” was April 3. He is still seeking support for the idea, he said.
As Scott Horton wrote when the previous secret memos were released in March:
“We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.”
Obama is, obviously, far from a dictator. Including the denunciation of torture and the release of all those secret memos, he has taken numerous actions deserving of loud huzzahs. But he and his team have just tossed aside one key means of ensuring that no future President builds on the precedent set during those eight dark years.
Sooner or later, in the next Presidency or a generation from now, that decision will come back to plague us.
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