Blog on the Run: Reloaded

Friday, May 1, 2009 10:29 pm

Torture roundup of the week

I’ve long since grown used to well-paid, highly honored national pundits spewing absolute idiocy. But David Broder’s column last weekend on torture deserves a special fisking.

If ever there were a time for President Obama to trust his instincts and stick to his guns, that time is now, when he is being pressured to change his mind about closing the books on the “torture” policies of the past.

First, Dave, take the scare quotes off “torture.” Waterboarding. Is. Torture. It has been so ruled by American courts. The president says so. The attorney general says so. Apparently the only two people left who don’t believe it are Pat Buchanan and you, and is that really the kind of company you want to keep?

Obama, to his credit, has ended one of the darkest chapters of American history, when certain terrorist suspects were whisked off to secret prisons and subjected to waterboarding and other forms of painful coercion in hopes of extracting information about threats to the United States.

He was right to do this.

Of course he was. But … ?

But he was just as right to declare that there should be no prosecution of those who carried out what had been the policy of the United States government. And he was right when he sent out his chief of staff, Rahm Emanuel, to declare that the same amnesty should apply to the lawyers and bureaucrats who devised and justified the Bush administration practices.

So explain to me how it’s right to end a war crime but not hold anyone accountable for it. Go on. I’ll wait.

But now Obama is being lobbied by politicians and voters who want something more — the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps — or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

Um, no, it actually cloaks an entirely worthy desire for accountability and deterrence. I don’t want vengeance; I want my country back.

Obama has opposed even the blandest form of investigation, a so-called truth commission, and has shown himself willing to confront this kind of populist anger. When the grass roots were stirred by the desire for vengeance against the AIG officers who received contractual bonuses from government bailout funds, Obama bought time by questioning the tactic. Quickly the patently unconstitutional 90 percent tax the House wanted to slap on those bonuses was forgotten.

The torture issue is much more serious, and Obama needs to take it on himself, as he started to do — not pass the buck to Attorney General Eric Holder, as he seemed to be suggesting in his later statements on the issue.

Leaving aside for the moment the ridiculous comparison of taxpayer-financed bonuses with war crimes, there are perfectly good political, legal and practical reasons to let the Justice Department do its job (not “pass the buck to Attorney General Eric Holder”) here. For one thing, the U.S. is required by law and treaty to investigate allegations of war crimes and, where appropriate, prosecute those responsible; Justice is the appropriate agency for those investigations. For another, political interference with the Justice Department is wrong whether it’s Karl Rove dialing up the firings of insufficiently pliable U.S. attorneys or Barack Obama killing a legally required criminal investigation.

Obama is being blamed by some for unleashing the furies with his decision to override the objections of past and current national intelligence officials and release four highly sensitive memos detailing the methods used on some “high-value” detainees.

Again, he was right to do so, because these policies were carried out in the name of the American people, and it is only just that we the people confront what we did. Squeamishness is not justified in this case.

Because these documents were legal opinions, not classified operational records, they should never have been kept from the public in the first place. And while I’m glad Broder thinks it appropriate that we “confront what we did” without “squeamishness,” he himself is full of Teh Sqeam:

But having vowed to end the practices, Obama should use all the influence of his office to stop the retroactive search for scapegoats.

I shouldn’t have to explain this to a Pulitzer winner, but “those responsible” are not “scapegoats.” Scapegoats are the ones who aren’t responsible but are being treated as if they are. That’s most definitely not what we’re looking for here.

The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places — the White House, the intelligence agencies and the Justice Department — by the proper officials.

Oh, there was something deliberate, all right, but it most certainly was not an “internally well-debated policy decision.” It was an effort to justify the unjustifiable, quite possibly retroactively. Moreover, as Philip Zelikow has written, copies of a dissenting opinion he wrote were seized and destroyed, an action that might well have constituted a criminal conspiracy. (And Zelikow wasn’t the only dissenter, as that last link makes clear; State’s William Howard Taft IV and the military’s senior JAG officials were warning as well that there was good reason to think these positions wouldn’t pass judicial muster. For one thing, they didn’t mention at all the U.S. history of prosecuting waterboarding as a war crime, an omission tantamount to legal malpractice.)

One administration later, a different group of individuals occupying the same offices has — thankfully — made the opposite decision. Do they now go back and investigate or indict their predecessors?

Did those predecessors commit crimes, particularly serious crimes? Then, yes, indeed, they now go back and investigate and indict their predecessors. It’s called the rule of law. Perhaps you’ve heard of it.

That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness — and injustice.

Geez, where to begin. First of all, we’ve had endless political warfare at least since the 1960s. Secondly, the problem here isn’t the criminalization of policy differences, it’s the politicization of what ought to be a painstaking but straightforward criminal investigation. Thirdly, seeking accountability is not pursuing a vendetta. Fourthly, we’ve been having bitterness in the political system since at least the McCarthy era, and it picked up quite a bit after 1994. And, fifthly, why, David, are you so certain that an attempt to hold people accountable for their behavior will lead to injustice? Have you no confidence in our criminal-justice system?

Suppose that Obama backs down and Holder or someone else starts hauling Bush administration lawyers and operatives into hearings and courtrooms.

And, given the wealth of evidence already on the public record, that would be bad because … ?

Suppose the investigators decide that the country does not want to see the former president and vice president in the dock. Then underlings pay the price while big shots go free.

What the hell does “what the country want to see” have to do with anything? If professional investigators find information sufficient to take to a grand jury, they’re bound to take it, and if that information is any good, the grand jury will indict, and then the judicial system will determine the merits, if any, of the charges. That’s what the law requires to happen, and leaving aside for the moment the question of how you decide whether or not the country wants to see the former president and vice president in the dock, what the hell does it MATTER what the country wants? The law is the law, and either no one is above it or it’s meaningless and we have anarchy.

But at some point, if he is at all a man of honor, George W. Bush would feel bound to say: That was my policy. I was the president. If you want to indict anyone for it, indict me. Is that where we want to go? I don’t think so. Obama can prevent it by sticking to his guns.

Please point to one example at any point in his life in which George W. Bush has actually behaved as if he understood the concept of personal responsibility. He’s been leaving messes for other people to clean up his entire adult life. Now that those messes involve this country’s blood, treasure, security and honor, all of a sudden David Broder thinks we as a country are too delicate a flower to seek accountability and live with its consequences.

David Broder: legally illiterate, morally obtuse, full of Fail. Kind of like his colleague Charles Krauthammer, whom yet another Postie, Dan Froomkin, schools.

And here’s a weird twist: Americans who are relatively more religiously observant are more likely to be OK with torture than those who aren’t. And evangelicals and Roman Catholics are more likely to be OK with torture than are mainline Protestants or the unaffiliated. So, we again must ask: Whom would Jesus torture?



  1. your post is hard to read blending in with the side roll on right hand side of site

    Comment by keith — Saturday, May 2, 2009 11:03 am @ 11:03 am | Reply

  2. Terrorism? Waterboarding? Torture?
    Does waterboarding=Torture?
    Does Abortion=Torture?

    “Whom would Jesus torture?”

    Whom would Jesus abort?

    Comment by Oscar Trillin — Saturday, May 2, 2009 11:15 am @ 11:15 am | Reply

  3. Yeah, Oscar, waterboarding = torture. It has been so found by U.S. courts, which ordered the execution of some perpetrators after WWII. Meanwhile, abortion is unambiguously legal in this country, not to mention a separate issue.

    Anything else indefensible you’d like to try to defend?

    Comment by Lex — Saturday, May 2, 2009 11:30 am @ 11:30 am | Reply

  4. Keith: Not sure why you’re having that problem. I’ve looked at it in three different browsers and it looks fine. What browser are you using, and how big is your monitor? Thx.

    Comment by Lex — Saturday, May 2, 2009 11:31 am @ 11:31 am | Reply

  5. it is probably my old ass computer, need to upgrade

    Comment by keith — Saturday, May 2, 2009 12:01 pm @ 12:01 pm | Reply

  6. Lex,
    You are correct. I threw in abortion(legal by judicial precedent) equating to waterboarding(illegal by judicial precedent).
    While I find the former indefensible and no where close in my judgement, I think bringing charges against the Bush administration or other administrations might be the way to go.
    Let the American people make the judgement.

    Comment by Oscar — Sunday, May 3, 2009 10:27 am @ 10:27 am | Reply

  7. Lex,

    You can say you want your country back but it hasn’t changed in a long , long time. William Ranney Levi, a student, has done a well researched and lenghty paper to soon appear in the Yale Law Journal in which he demonstrates that Bush administration interrogation policies do not represent a dramatic repudiation of and stark departure from American traditions. Indeed, Levi shows that, “every interrogation method allegedly authorized since 9/11, with the possible exception of waterboarding, “was authorized at times before 9/11 and was considered to be consistent with the reigning legal framework.”

    Levi also insists that what he calls “the Bush administration’s flawed and careless legal work” also has contributed to the perception that something unprecedented was afoot. He argues, for example, that the “torture memo,” with its dubious legal definition of torture and its argument that, as Commander-in-Chief, the president has complete discretion to authorize interrogation by torture despite a federal criminal statute to the contrary, “made it appear that for coercive interrogation to be considered lawful, the existing legal regimes had to be eviscerated. . .”

    This too is false. The reality, Levi argues persuasively, is that “all former and present laws on interrogation. . .are vague and contestable, and thus, when context demands, manipulable.” If this is problematic, he concludes, “then a rethinking of interrogation law and policy is necessary.”

    I have his draft in pdf format but don’t know how to link it here but will be happy to forward it to you or anyone else that is interested.

    Comment by Fred Gregory — Tuesday, May 5, 2009 11:13 pm @ 11:13 pm | Reply

  8. Fred, I’m quite aware that the country has a long history of torture (and of illegally overthrowing other governments, etc., etc.). When I say “I want my country back,” I’m figuratively saying I want this country to live up to its highest ideals and principles, not that I literally want it to return to some morally elevated time that never actually existed.

    That said, the UN Convention Against Torture, by which the U.S. is bound, makes it quite clear that the U.S. has committed actions including but not limited to waterboarding that violate international law. The Convention is neither “vague” nor “contestable.” Existing law is quite clear, as are the U.S.’s obligations under that law, among which is the obligation to investigate allegations of war crimes.

    Comment by Lex — Wednesday, May 6, 2009 8:36 am @ 8:36 am | Reply

  9. Moreover, the most egregious examples of torture — the March 2003 waterboardings — apparently were carried out for the specific purpose of finding evidence linking Saddam to al-Qaeda. It was the war crime of torture in service of the war crime of fabricating justification for an otherwise illegal invasion of a sovereign nation with which we were at peace.

    Comment by Lex — Wednesday, May 6, 2009 8:37 am @ 8:37 am | Reply

  10. The Torture Follies — Just When You Thought It Couldn’t Get Worse:Andy McCarthy @ NR online

    “As K-Lo notes, I have an article (posted on the homepage this afternoon) which recounts how the Obama administration is urging the Sixth Circuit U.S. Court of Appeals to adopt the same interpretation of federal torture law that it is investigating former Bush administration lawyers for developing. (And why shouldn’t AG Eric Holder rely on the memo written by Jay Bybee and John Yoo in 2002? After all, the Third Circuit Court of Appeals already adopted it as the law of the United States in a ruling last year — as I also recount in the article).

    But now there’s more. As Jan Crawford Greenburg reports at her ABC News blog, Legalities, the Justice Department’s Office of Professional Responsibility — by playing partisan politics — has blown the critical filing deadline for referring Prof. Yoo for professional sanctions. Don’t get me wrong, this is a very good thing — as I’ve been arguing, there is no legal or ethical basis to pursue this cockamamie investigation. But this is an episode that should be studied given all the blather about how it was Republicans who politicized the Justice Department.”

    Comment by Fred Gregory — Wednesday, May 6, 2009 10:15 pm @ 10:15 pm | Reply

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