Someone asked me why, in my previous post, I wrote that we’d never see a South Africa-style Truth and Reconciliation Commission here in America to sort through the transgressions of the Bush years. Good question!

The country would benefit from such an approach on our response to 9/11. In the weeks and months after those terror attacks, the White House, Defense Department, CIA and other agencies pursued moral and legally questionable actions and policies that are geopolitically and historically significant. They go to the heart of our national identity and place in the 21st century world. I’d include the Iraq war, but for the purposes of this post will focus on U.S. treatment of prisoners. James Fallows says that the Justice Department’s Office of Professional Responsibility report on the “torture memos” used to justify those questionable policies is analogous to John Hersey’s “Hiroshima” and what it did for the atom bomb attacks on Japan. It exposes the terrible tradeoffs we made as a society in the name of security.

We certainly need some truth and reconciliation. The problem is, while everyone would nominally agree that reconciliation is a good idea (see, for example, the rote calls for “bipartisanship”), America remains fundamentally at odds over the “truth” part. Google “torture” and “poll” and you’ll find a bunch of ambiguous results. Americans narrowly approve of torture in some situations. Americans are split over torture investigations. Americans want a torture investigation. A majority of Americans think waterboarding is torture.

Obviously the problem isn’t just this set of issues but the deep political divisions that have nearly paralyzed the government during the Obama administration. There is a not-insignificant minority of Americans and a significant number of politicians and pundits that think “harsh interrogations” of terror suspects are necessary and effective. There’s also a credulous political press who will amplify their objections to any kind of investigation or process that suggests they are in the wrong. Every time Dick Cheney makes an assertion about the effectiveness of “harsh interrogations” – no matter how repetitive or unfounded – it’s news because of the extraordinariness of an ex-vice president criticizing another administration. (Though it grows less extraordinary each time he does it.)

Until there is some kind of political consensus that torture is wrong – some broad agreement on that something went wrong post-9/11 – it’s going to be very hard to get to the bottom of what happened, assign responsibility, and move on. Some leadership would be helpful here, but the Obama administration is determined to do as little as possible on this front – and, more generally, eschews decisive action that might generate significant political pushback from the other side.

On some level, though, this isn’t political at all – it’s just how we roll. America the land of “moving on,” of “closure.” Not real closure but “closure.” The notion that you shouldn’t dwell too long on unpleasant, ambiguous things but turn your face to the sun and keep moving forward. This forward inertia is often a good thing. Not here, though. Ideally, torture should be exposed to the full light of public inquiry and acknowledged, by consensus, as wrong. On a practical level, torture ought to be made politically and bureaucratically radioactive: take away any incentives from future politicians and their appointees to employ these techniques. Instead, though, we’re once again leaving ourselves to the mercy of events and expediency.

If you want to have a truly dispiriting, soul-shrinking experience, read Justice Department official David Margolis’s decision to let Jay Bybee and John Yoo off the hook for any professional misconduct in authoring “torture memos” for the Bush White House.

The sad thing is, Margolis’s disagreements with the recommendations of the Office of Professional Responsibility seem reasonable. He takes a critical view of the memos in question. Here’s what he has to say, for example, about Yoo:

I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the Office of Legal Counsel. While I have declined OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client. These memoranda suggest that he failed to appreciate the enormous responsibility that comes with authority to issue institutional decisions that carried the authoritative weight of the Department of Justice.

Read further, and Margolis describes a process in which the OPR – going through drafts and responses from the principals – struggles to see how the Bush lawyers’ conduct might violate various ethical and professional codes of the Justice Department, the DC Bar, and other associations. In one of his responses, Yoo taunts the OPR for doing what it says he was doing: trying to make the code fit a predetermined conclusion. Ultimately, Margolis concludes that the standards they were compelled to follow were simply too low:

I conclude the DC rules created an unambiguous obligation on Yoo and Bybee to not provide advice their client that was knowingly or recklessly false or issued in bad faith. While the OLC best practices may require more, failure to meet those standards should result in poor evaluations or administrative disciplinary action, but not bar referrals.

So Yoo and Bybee were not lying or acting in bad faith. They were sincere in their perfidy! And even if they violated the higher standard, it doesn’t rise to the level of disciplinary action from the bar.

The problem here is not that Margolis has an overly bureaucratic sensibility, or even lawyers writing codes of conduct that protect lawyers and lawyerly institutions and not the public trust. It’s that a departmental disciplinary procedure is a terrible venue for adjudicating this issue. And it’s pathetic that we’re stuck looking to this arcane bureaucratic process for some measure of corrective justice here. Of course the result – whatever it was – was going to fall short.

There are many questions here that demand answers. The lack of resolution on torture is a kind of open wound in the body politic. It will fester if left alone. We ought to look backward. Can we determine exactly what went wrong, who was responsible, who violated domestic or international law, and what, if any punishment, they deserve? Is Yoo the villain here? Dick Cheney? Bush? Can we, as a society, agree that something went seriously wrong here? This gets us into the realm not of departmental hair-splitting but South Africa-style truth commissions.

Of course, that’s not going to happen. The more likely outcome is this fades into the background until the next big terror attack. Then all the unresolved issues will erupt in our faces. The intense pressure to “get tough” on prisoners will resume. Ticking time bombs will once again fill our op-ed pages. And because we lack clarity on exactly what the law allows, how institutions should behave, there may be nothing to stop them from going dangerously awry again.

maureen dowdNot By MAUREEN DOWD

It was an indelible Obamamoment. Maybe even an Obamamiracle.

The president was sandwiched between Hillary and Michelle, like turkey on white and pumpernickel with a dollop of dijon, for a photo op with Hamid Karzai. It’s the kind of situation that gets all up in his grill, two strong women in a pincer movement.

This is one reason why, although he’s ballooned the deficit up to an astonishing $1.4 trillion, the perpetually svelte and self-denying Dieter-in-Chief favors egg white omelets and Tofurkey over real food: he’s so skeletal he can easily slip out of a tight spot.

Sure enough, when those quickly converging upper arms – one bare and brawny, one in pantsuit armor – brushed his, Obama turned sideways and disappeared.

Our president may be a wispy, nicotine-addicted Vulcan short an emotion chip. But he’s mastered the technique of giving his enemies the slip, apparating out of there like Harry Potter in a tight spot with He-Who-Must-Not-Be-Named.

Bill Clinton went all the way to hell and back; W never knew he was in hell; he thought it was just Crawford in August; our Barack, Arabic for “blessed,” somehow skirts the Purgatory of the skirts.

(more…)

Maureen Dowd at Democratic Debate in Philadelp...

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Dick Cheney, Vice President of the United States.

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So diametrically opposed, yet substance-free, are the views and perspectives of Maureen Dowd and Dick Cheney – whether in ideology, politics, gender or diction - that when they agree on something, almost by definition a new standard for inanity is set.

And so it is now, with President Obama and the terror-underpants attack. In Politico, Cheney attacks Obama for being insufficiently martial in his approach to terrorism, both this week and in general:

As I’ve watched the events of the last few days it is clear once again that President Obama is trying to pretend we are not at war. He seems to think if he has a low-key response to an attempt to blow up an airliner and kill hundreds of people, we won’t be at war.

But we are at war and when President Obama pretends we aren’t, it makes us less safe. Why doesn’t he want to admit we’re at war? It doesn’t fit with the view of the world he brought with him to the Oval Office. It doesn’t fit with what seems to be the goal of his presidency — social transformation — the restructuring of American society.

And Dowd, while getting some zingers in at Bush and Cheney, comes to surprisingly similar conclusions: Obama is dithering while the terrorists devise new and ever-more lethal undergarment-based attacks; he has pretenses to being a socially transformative figure but this plot has exposed their hollowness: (more…)

Jack Bauer

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Vengeance – experienced vicariously via movies or TV – is one of the purest kinds of emotional satisfaction. And the revenge flick has had something of a renaissance recently, as Stanley Fish notes in this blog post, citing Liam Neeson’s memorably-delivered statement from “Taken” as a road map for the entire genre:  “If you’re looking for ransom, I don’t have any money. But what I do have are a very particular set of skills, skills I have acquired over a very long career, skills that make me a nightmare for people like you. If you let my daughter go now, that will be the end of it I will not look for you, I will not pursue you. But if you don’t, I will look for you. I will find you. And I will kill you.”

If you saw the movie, or even if you didn’t, you know that’s exactly what he does. And the quest to save the daughter and get the bad guy’s scalp unfolds with a number of plot flourishes – torture, Arab sheikhs collecting American virgins, corrupt French bureaucrats – that make it appear that Dick Cheney was hired on as an uncredited script-doctor.

Revenge fantasies are durable, reliable entertainments because they allow us to experience actions that aren’t allowed in real life, and that most of us wouldn’t truly want to experience even if given the chance. That would be fine if we were just talking about pop culture. But during the 2000s, the revenge fantasy escaped the realm of fiction. It came to dominate our politics and – for a while – overturned centuries of established U.S. policy and tradition toward prisoners.

Call it the Jack Bauer Decade: a strange, hopefully anomalous phase of American history, and one that America has yet to grapple with fully. (more…)

NEW YORK - NOVEMBER 16:  A New York City Polic...

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There’s no question that the decision by Attorney General Eric Holder to put Khalid Sheikh Mohammed and four other detainees on trial in New York City for the 9/11 attacks is both audacious and risky. That may explain the ambivalent reactions to it across the political spectrum. I don’t know what to make of it myself – it could certainly turn out to be a trifecta: a legal/political/moral disaster. But it also might work: as in, a trial conducted, evidence aired, a defense presented, and the defendants presumably convicted and the legal system vindicated, or at least still in one piece.

The reaction to the Holder decision on the right has been particularly disjointed. Some argue it’s a reasonable choice. But in some corners it’s causing a kind of rhetorical-logical meltdown. Here’s what Dick Cheney said earlier this week in a radio interview:

I can’t for the life of me figure out what Holder’s intent here is in having Khalid Sheikh Mohammad tried in civilian court other than to have some kind of show trial. They’ll simply use it as a platform to argue their case – they don’t have a defense to speak of – it’ll be a place for them to stand up and spread the terrible ideology that they adhere to.

These claims, echoed by Charles Krauthammer and other neoconservatives, scramble history, the law, and current political realities. The term “show trial” has a specific historical meaning: a staged proceeding in which innocent victims of the state are made examples of. The most famous examples are Moscow trials of the 1930s, in which dozens of Stalin’s suspected political enemies “confessed” to made-up crimes against the Soviet Union. Most were tortured and/or threatened. Many were ultimately executed.

It’s unusual for former cold warriors to sling this term around cavalierly, so I’m sincerely trying to understand the historical reference here. Is Cheney saying that a trial would be legally invalid, in part because U.S. government tortured KSM? Krauthammer makes a vaguely parallel argument – that because Holder considers a conviction a foregone conclusion, the trial itself would be a farce. But that’s sophistry – Holder is the nation’s chief prosecutor, not a judge who must maintain impartiality: of course he is going for a conviction. In any case, it’s incoherent to argue that the U.S. is applying an inadequate “law enforcement” approach to terrorism while also claiming it’s staging kangaroo courts.

Cheney and Krauthammer also argue that it’s KSM’s show trial, not ours: that he will seize the spotlight for a propaganda bonanza. (This strategy apparently never occurred to Stalin’s victims.) This seems overblown. A federal terrorism trial is by definition a highly circumscribed affair: no TV cameras or recording devices in the courtroom, tight rules of evidence, few opportunities for grandstanding by lawyers, let alone defendants. Of course, KSM could conceivably fire his lawyers and make propagandistic statements at some point, as Zacarias Moussaoui did. That would be unfortunate, yes – but intolerable?

I’d argue that despite the risks, a trial is basically a conservative act, the culmination of a process of accounting for the acts of 9/11 that has remained frustratingly open-ended. A successful prosecution would show we can absorb a terrible blow with our institutions intact and working. (It’s this sense of continuity and normalcy, of course, that Cheney and Krauthammer disdain.)

There’s another issue here, playing out almost subconsciously. Cheney must be worried about being put on trial himself someday for war crimes, among them the torture of detainees such as the 9/11 defendants. If he is, he’ll almost certainly denounce that as a show trial too.

I’m reluctant to criticize the work of other journalists, and especially that of investigative journalists, because as a reader I usually don’t know enough about the subject matter, or the sources, or the corroborating work that shaped the story in question. But this Washington Post piece, which makes bold claims about the efficacy of waterboarding, bothered me for various reasons. It burned up the blogosphere over the weekend and was a kind of overture to Dick Cheney’s appearance on Fox News Sunday.

My complaint has more to do with the context, or lack of it, than with the content of the story itself. But in this case, context is everything.

The story is titled “How a Detainee Became an Asset: Sept. 11 Plotter Cooperated After Waterboarding.” And that’s pretty much its only point, gleaned mainly from interviews with anonymous sources and a few lines from CIA reports released last week: waterboarding done on Khalid Sheikh Mohammed, the 9/11 plotter, made him cooperate and yield valuable information about al Qaeda.

What happened in KSM’s interrogations is historically and legally significant, and thus politically controversial – hugely so. This story, however, treats its subject matter not from that perspective but as a daily scoop, advancing the story of the week – the release of the CIA’s torture documents and Cheney’s response.

And in that sense, the biggest problem here is opacity. We don’t know who the Post’s anonymous sources are. But we do know what bureaucratic or political agendas they are seeking to advance by talking about this case right now. The CIA is embarrassed and facing a Justice Department investigation. So some elements within the agency – and especially those who participated directly in this program – have a political and legal interest in trying to paint the “EITs” (the official acronym for enhanced interrogation techniques – who knew?) as successful. As do Dick Cheney and his various acolytes. This undermines the story’s credibility, yet the Post basically asks us to take the statements of its anonymous sources at face value.

There’s also the timing. The story appeared the day before a scheduled Cheney interview, and bolstered his arguments (which are not real arguments but demagogic assertions, which in my mind damages whatever actual, utilitarian case might be made for torture). When I saw it I thought instantly of how the Bush administration had played the New York Times with the “aluminum tubes” story. In 2002, “senior administration officials” strategically leaked disputed information about Saddam Hussein’s alleged (and, as it turned out, nonexistent) nuclear program to the Times, then used the NYT’s own story to bolster the case for war. Here’s the NYT’s own retrospective account:

“On Sept. 8., the lead article on Page 1 of The New York Times gave the first detailed account of the aluminum tubes. The article cited unidentified senior administration officials who insisted that the dimensions, specifications and numbers of tubes sought showed that they were intended for a nuclear weapons program.

”The closer he gets to a nuclear capability, the more credible is his threat to use chemical and biological weapons,” a senior administration official was quoted as saying. ”Nuclear weapons are his hole card.”

The article gave no hint of a debate over the tubes.

The White House did much to increase the impact of The Times’ article. The morning it was published, Mr. Cheney went on the NBC News program ”Meet the Press” and confirmed when asked that the tubes were the most alarming evidence behind the administration’s view that Iraq had resumed its nuclear weapons program. The tubes, he said, had ”raised our level of concern.” Ms. Rice, the national security adviser, went on CNN and said the tubes ”are only really suited for nuclear weapons programs.”

After the tubes incident, I never read an intelligence-related story quite the same way again. Did the Post allow itself to be manipulated here in exchange for a scoop? Cheney didn’t mention the Post story in his interview – whew! But clearly, something went wrong here. The scoop here doesn’t tell us anything about the efficacy of torture in producing reliable information – even in KSM’s case, for that matter. If a scoop actually obscures the issue at hand, what good is it?

I’ve argued that it’s unlikely any top Bush administration officials would be prosecuted for war crimes in the United States. This because the U.S. is an amnesiac country. We don’t like facing hard truths about ourselves. (Exhibit A: Why is New Orleans still so vulnerable?) We prefer to make a brief nod to whatever horrible disaster we’ve collectively enabled, then “move on.” And it seemed logical that this same attitude would apply to the torture regime created under Bush, Cheney and Rumsfeld. Jack Bauer’s antics notwithstanding, it’s pretty clear our dalliance with the dark side is ending, and Barack Obama would very much like to concentrate on other things, given that torture investigations would inevitably suck up a lot of political oxygen during a time when he is trying to accomplish other, more positive things.

But now I’m starting to think that Obama’s hoped-for outcome – that this all goes away for now – isn’t realistic. The reason is Bob Woodward’s story in today’s Washington Post, in which Susan Crawford, a Bush administration appointee who oversees Guantanamo’s military courts, comes out and calls torture “torture.” She refers to the treatment of Mohammed al-Qahtani, the alleged “20th hijacker” in the 9/11 plot. He never made it to the U.S., but was later captured in Afghanistan and shipped to Guantanamo, where he was subjected to harsh and degrading treatments over a 7-week period. Crawford ultimately judged that this met the legal definition of torture and blocked the case from proceeding.

This single case won’t make the difference on high-level torture prosecutions. But it is likely just the beginning of a parade of frank admissions about the torture regime. Why? It’s less about the nature of the acts committed than about how government and politics work.

We won’t see high-ranking officials suddenly going public anytime soon. Rummy ain’t gonna flip on himself.  But the Bush White House can no longer shut people up.  And lower-level officials in the Bush-era Pentagon, Justice Department, and intelligence agencies may decide they want to be on the right side of this issue, either for moral or legal reasons, as investigators (if there are any) will start looking at torture at the lowest levels and then work their way up the political food chain. If there are more torture findings like this one, from inside the system itself, the likelihood that criminal acts occurred becomes impossible to ignore. Impossible for career prosecutors, who will see a crime just sitting out there in plain sight; and impossible for Obama and his appointees, who may come to see a reckoning, rather than indefinite postponement, as the only viable way forward.

That said, Crawford took pains to note that individual techniques were approved, and thus hypothetically legal, just that the way they were employed crossed a line:

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture, she said.

Pay attention, Rumsfeld & company – the “overly aggressive” interrogators is your defense argument.

I have a Guardian piece up discounting the possibility of war crimes trials for Bush & Co. in the United States. I do think, though, that a Pinochet scenario – a torture indictment by a zealous foreign prosecutor – is probable at some point from 2009 on for Bush, Cheney, or Rumsfeld, most likely the latter.

There is just too much to be gained, in terms of international opinion, political stock, and, well, justice itself, for some enterprising European civil servant not to go after those big, big fish. You might think that outrage in the United States, and the various forms of diplomatic pressure that would follow on that, would render this impossible. But once Bush leaves the White House, he will lose the symbolic cloak of office that makes him a symbol of America and still buys him a measure of respect and deference. No one of consequence will rise to his defense. Pinochet at least had Margaret Thatcher – who will speak for Bush? Most of the country will be so relieved to see Bush go they will quickly forget he ever existed, and won’t care a whit if he or his associates are indicted in absentia abroad somewhere.

Should members of the Bush administration – Bush, Cheney and Rumsfeld, primarily – be put on trial for war crimes because of the torture regime they have created? Should we have a South Africa-model Truth and Reconciliation Commission to sort through the wreckage of the past eight years?

The stream of commentary on these topics is increasing as we near the end of the Bush presidency. There is merit to these ideas, but there are serious obstacles to anything like this happening in the United States. The obvious problem is that there is nothing approaching a national consensus on the specific issue of torture, or more generally, the actions of the Bush administration on terror. Certainly there is a consensus that the Bush administration has been disastrous and that the Iraq war was a mistake. But this doesn’t translate down to finer-grained issues such as torture – even if they are of transcendant importance – or the matter of criminal culpability. See Kevin Drum’s post on why this is not Watergate: a well of political support remains for Bush’s terror policies.

This goes beyond politics. I hate to sound cynical, but Americans aren’t much interested in accountability, truth, or reconciliation. Our national motto is “move on.” The buzzword of the decade is “truthiness.” Trials or commissions on war crimes would force a reckoning that many people don’t think is necessary and/or would rather not have.

Of course, another feature of American culture is its disposability: What seems set in stone today won’t be tomorrow. What once seemed an issue of high principle to many conservatives – embracing torture and defending Bush & Co. – may quickly become passe once Bush leaves office and other issues come to dominate.

Still, I think the most likely outcome is a Pinochet-type situation in which an international organization or foreign government indicts one or more of the big three. Americans will be outraged – but not really; the U.S. government will try to head it off, but won’t be able to do much. No one will actually go on trial, but the indictees would humiliatingly see their travel options curtailed, and go to their graves knowing the phrase “charged with war crimes” will be next to their names in the history books.

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