Commission on Accountability Should Be Part of Our Response to America’s Torture Nightmare

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I have had a couple of overwhelming weeks and haven’t been able to post until now what I would have preferred on this debate about George W. Bush administration torture policy accountability.
I have told quite a number of media outlets this last week that despite his best intentions, President Obama cannot impose a psychological equilibrium on the nation when it comes to sorting out the moral travesty of what we saw unleashed during the Bush administration in the management of combat detainees.
People being interrogated — held under our direct control — were killed, psychologically harmed, abused. . .yes, tortured.
That is what the Soviets and the Chinese under Mao and the Pol Pot regime were supposed to have as part of their MO — not the United States of America.
A society’s basic norms and values don’t really matter when it is easy to wear them.
They matter at times of high stress — and we as a nation have to deal with the fact that under stress, we empowered the likes of Richard Cheney and David Addington to take the nation to what they call “the dark side” — and to me, this is one of the great outrages of our time.
Remind yourself of one corner of this nightmare by watching again Alex Gibney’s Taxi to the Dark Side, or reading Jane Mayer’s excellent book of nearly the same name, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals.
We need something like a truth commission in this country to explore how and why America became a nation that embraced torture at the highest levels of political office. We need to understand the routenization and systematization of detainee management policies that violated the Geneva Conventions in far more than the law — but in the most profound sense of the spirit and meaning of what these conventions were supposed to prevent.
Two men waterboarded 266 times in one month? Even if Geneva needed to be modified and modernized to deal with a different kind of war today — there is no excuse for this in my book.
But we need institutions that will help the nation understand — and hopefully not forget — and never do such things again.
What Barack Obama has done is simply not enough. We need many things to happen to move us forward to deal with this blight on our nation’s reputation — including serious Congressional hearings, serious legal investigations — and fewer prescriptions of politically contrived outcomes that satisfy neither the torture-embracing Cheney wing of the national security establishment nor the parts of American society who despise them for undermining this nation’s position as the world’s leading democracy.
I support the establishment of an independent, non-partisan commission to look into torture policy accountability — and Amnesty International, the Brennan Center for Justice, the Carter Center, the Constitution Project, Human Rights First, Human Rights Watch, the Jewish Council for Public Affairs, the National Institute of Military Justice, the Open Society Institute, and numerous other organizations are calling for the establishment of such a commission.
From the website, CommissionOnAccountability.org:

We call on the President of the United States to establish an independent, non-partisan commission to examine and report publicly on torture and cruel, inhuman, and degrading treatment of detainees in the period since September 11, 2001.
The commission, comparable in stature to the 9/11 Commission, should look into the facts and circumstances of such abuses, report on lessons learned, and recommend measures that would prevent any future abuses.
We believe that the commission is necessary to reaffirm America ‘s commitment to the Constitution, international treaty obligations, and human rights. The report issued by the commission will strengthen U.S. national security and help to re-establish America’s standing in the world.

I have sent this site out to a number of my friends — and I hope you will sign up and forward to others who care about this issue as well.
We need numbers on this, and I hope those of you so inclined will help.
— Steve Clemons

Comments

98 comments on “Commission on Accountability Should Be Part of Our Response to America’s Torture Nightmare

  1. David says:

    A shift in consciousness is the key, but if the OVP could get away with outing a CIA operative, an act of treason, and neither the MSM or the general public registered much in the way of outrage, and Patrick Fitzgerald couldn’t even move forward on what he knew was treasonous activity, what are the chances that either the MSM or the genaral public will now embrace arresting those ultimately responsible for the various war crimes and acts of treason to which we have been witness?
    The likely risk here is that the specter of “loss of national sovereignty” will trump all other considerations and the Cheney/Bush administration will continue to get a pass, at least as far as real justice is concerned.

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  2. Ron E. Kendricks says:

    Take your Commission for Accountability.org banner down and replace it with “Arrest, Arrest, Arrest.org”. Lead with Boldness. There has been a major shift of consciousness in the people-at-large. Call it the New America. Why should Spain be out in front in doing our own civic duty? “Arrest, Arrest, Arrest.org” would call on the Dept. of Justice to issue an arrest warrant for the six principles suspected of criminal actions (see the book, The Torture Team) and for the architects of these crimes (Cheney,Rice, Gonzales,Ashcroft,Tenet,Rumsfield, Addington, Feith and whomever else the evidence implicates). If you think there is “no political will” for this bold action for a New America, think again. The over l00,000 activists and more, will not accept less in this new world of instant communciation. As a precedent, the Reagan DOJ issued arrest and indictment of the Arizona Sheriff for Torture. The political will is not in Congress (The people, except for the 29’deniers, no longer have any faith in Congress) but the people-at-large are demanding a bold action from our new leaders. What was once thought impossible is now possible. Arrest, Arrest, Arrest. Why should Cheney and Yoo be using this time to write their books to defend their crimes ? Let them defend themselves in court. This is not revenge. This is not retribution. This is not politics. This is true accountability. They are all flight-risks and should not be given the time to justify their crimes through the venue of a cupable corporate-owned media. They certainly did not give those who were accidently caught up (oops, they say, you had a similar name) a chance to defend themselves through due-process. Let “Arrest, Arrest, Arrest”.org happen. Give them due-process and let them defend themselves, like all other Americans, in a court of law. But first must come the “Arrests”. Let History record that the people-at-large demanded this Justice. Let the potential terrorist recruits know that the American People are repudiate these criminals. We stand for a New America and not the machinations of these evil men (by omission or comission). This is a great chance to create the consciouness for a systemic change. It can only come about by a shock to the old system. “Arrest, Arrest, Arrest” can be such a clarion call to true indignation, not righteous indignation. How we deal with this, as Americans, will qualitivately determine our image abroad as a leader in democracy, truth, freedom and justice.

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  3. questions says:

    Dan,
    As I’ve said, I hope you’re right and I’m not. And Ron, it’s a nice rhetorical point.
    Your point about there being laws on the books already seems to contradict the notion that the laws work. We have laws and they were interpreted away because panic outstrips law. And national security seems to outstrip any and every thing, paradoxically. It really is a “destroy the village to save it” moment.
    Still, I am plagued by doubts about the effects of prosecutions, the efficacy of prosecutions, the possibility that we will simply outsource the torture as we have done in the past. There’s inelastic demand for this stuff. We will get our intell. We will decide once again that the time bomb is ticking regardless of how absurd this pose is.
    I think, still, that trials will locate the evil elsewhere, will expiate OUR sins, as it were, and will stop short of getting us to see just how systemic the demand for torture is when we’re panicking about terrorism.
    I’d be so happy to be wrong about this. I’d love to have the prosecutions nail a bunch of wicked policy makers, stupid and scared policy carry-out-ers, and cause us all to look deep into our souls, discover the inner complicity and out it. I’d love to cleanse the country of torture. But I honestly don’t think that trials will do this. The David Corn piece seems on the mark to me — maybe and maybe not there will be criminal behavior found and maybe and maybe not there will be trials and maybe and maybe not a guilty party will be convicted and maybe and maybe not the charge will actually be torture rather than, say, misfiling paperwork or some other trivial issue, and maybe or maybe not we’ll know what happened, but probably not. Truth won’t out under a prosecutorial reign according to the Corn piece.
    So I have doubts from top to bottom. I know what I really want, what I suspect will happen, and I see such a gulf that it occurs to me that a commission on accountability will go further in my direction than trials would.
    Not sure I have much more to say on this topic at this point. If I find some new interpretation that pushes me one way or another, I’ll certainly move. I’m not wedded ideologically, I’m wedded to what seems to me to be a cogent set of arguments and some evidence from some people who know more than I do. And I’m certainly happy to read disagreement, especially since I’m not at all in love with my conclusions, even if I keep coming back to them.

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  4. Ron E. Kendricks says:

    What If Instead of the Numerberg Trials There Was Only A Commission on Accountability?

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  5. Dan Kervick says:

    questions, I don’t think the analogy with the drug trade is a very good one at all. I don’t think that there is much evidence for the belief that there is an open economy for torture in which the torture “demand” is such that it is bound to be filled by some torture supplier, no matter the laws and no matter the steps taken to enforce these laws. In the case of recent US-sanctioned torture, we are talking about a rather rigid and hierarchical bureaucratic system of intelligence agencies, military bases and prisons, not a free-wheeling economy of pain.
    Yes, it is true that if we arrest some local drug dealer, the kid who wants to buy a joint will before long be able to buy a joint. But does that mean that if we enact and enforce firm laws against child abuse, child labor and rape, these laws will have no effect, because an abused child or rape victim would likely just have been abused or raped by someone else, if not the person who actually abused or raped them? Hardly.
    The US government has apprehended, incarcerated and interrogated a large number of people in the course of the war on terror. Most of what we know so far about how this system works strongly indicates that if the Bush administration had not issued orders down the chain of command to “take the gloves off” and had not set up a bureaucratic structure for approving and dispensing legalized torture, then most of the people who we did in fact torture would probably not have been tortured. That’s generally how it has worked in past wars. There are always incidents of people violating officially mandated procedures, but for the most part subordinates do what they are told and refrain from doing what is expressly forbidden.
    The military and the CIA run in accordance with chains of command, orders, legalisms and procedures. We have already seen much reporting about people who claim their participation was conditioned on the fact that they received orders from on high, and assurances that the methods they were using had been legally approved at a high level. Involved, detailed interrogation manuals were written that said, “You can do this, but not that.” The people who carried out acts of torture knew they were on very tenuous ground, and it was important to them that their asses were covered by orders and official assurances of legal sanction.
    Laws matter. Enforcement matters. Sometime laws and sanctions and prosecution and punishment actually work. They actually succeed in preventing the behaviors they are intended to prevent. The are already many laws on the US books covering torture, some derived from international legal restrictions that the US had officially adopted through Congressionally approved treaties. If we act resolutely to enforce these laws, and make a show of enforcing them, there is good reason to believe that our resolve will have an impact on the behavior of future administrations.

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  6. erichwwk says:

    Bush Then: ‘War Crimes Will be Prosecuted…No Defense to Say, ‘I was Just Following Orders”
    http://www.bradblog.com/?p=7105

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  7. questions says:

    http://www.motherjones.com/politics/2009/04/no-special-prosecutor-torture
    Found via TPM Cafe. David Corn on the problems with a special prosecutor, the difficulty of getting convictions. The whole thing is way complicated.
    I suppose Corn is also part of THELOBBY and wants, as much as I do, to have Israel take over the US. We are devious, we LOBBYISTS. POA, really keep an eye out for those wily “motives”!
    There’s a Jon Stewart piece floating around about the Harman thing, by the way. I think I found the link at HuffPo.

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  8. rich says:

    questions,
    appreciate your comments; haven’t been able to give them the time they’re due. You wrote:
    ” . . .BUT, nailing Bybee et al isn’t going to stop torture. Changing the incentives in the government so that national panic can’t happen is more important in my mind. If we nail Bybee and feel we’ve done enough, we’ll have failed. I worry about this substitution.”
    This is not a substitution. I believe impeaching and disbarring Bybee is one necessary step — among several that must be taken if the security and integrity of the country is to be maintained. That’s a profoundly conservative stance, not a partisan or “lefty” position.
    One incentive that must be changed involves the institutionally ingrained rewards for the notion that lawyers can say and do anything regardless of how far that departs from the core concepts that form America’s social contract, political contract and legal contract. Jay Bybee was rewarded with a federal judgeship for doing as he was told — for changing a legal opinion to serve an illegal policy. That crosses the line and goes beyond extremist territory, because it begins actively working against the legal and political integrity of the United States.
    Here’s the nub: we have a situation in which attorneys can use any minor excuse and any insane rationale to overthrow the supreme laws of the land, that by definition, overrule those technicalities. A miniscule sticking point should not eviscerate clear core principles.
    Presuming to eviscerate the 2nd Amendment based on a semicolon is but one case in point. The disingenuousness this requires is unacceptable; the avoidance of the obvious path to understanding the language, and the competing tensions in play, is telling.
    Creative thinking and wide-ranging rhetoric in the legal profession is desirable, but it cannot preclude adherence to core political values and Constitutional principles. When lawyers advocate the misreading of clear law and denotative language, via memo or ruling, to enable practices that eviscerate every founding document and contradict every founding motivation–then something’s wrong. Then that’s a betrayal, and a kind of treason.
    Here’s why:
    It’s the same self-defeating, destructive logic that led to statements like this —
    “We had to bomb the village in order to save it.”
    “We had to torture people to preserve a nation that does not torture. We had to torture to defeat totalitarian regimes because they torture.”
    As for LAWYERS? “We had to violate the proscription against “cruel & unusual punishment” in order to torture people, some of whom were innocent.” “We had to burn down the Constitution in order to save our way of life, to uphold the rule of law — to preserve our ritualized culture of sophistry.”
    Doesn’t work out real well for men of Reason. Lawyers and politicians defending the status quo use the same Orwellian logic that Dr. Strangelove and Josef Goebbels used.
    “If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.” –Goebbels
    “America does not torture.” Another Big Lie, repeated as often as possible, to cover Bush/Cheney/Obama from the political and economic consquences of their former and current policy.
    Bush tortured to manufacture evidence of his fictional Iraq-alQuaeda link. It was a Big Lie — and now we have another Big Lie or three:
    1. That torture wasn’t torture.
    2. That torture was necessary and effective.
    3. That torture is legal and does not violate the law.
    Yes, ‘questions’ — the lawyers are responsible. And they must be held accountable.
    _______
    National security is not an overriding concern, nor is it a persuasive excuse. Think: Nazi Germany thought it was in mortal peril from France; Stalin believed the same. But nothing about the military threats they faced, real or perceived, justified their torture they practiced. And nothing justifies our torture.

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  9. questions says:

    Rich, I’ve said many times I have no legal training at all. At some point in the past few months I made note of learning that lawyers have certain limits on what they can advise. If Bybee can be nailed for what he’s done without much more digging, then that’s all good. Bybee’s a problem. Yoo’s a problem. If there are more like these two, they are problems.
    BUT, nailing Bybee et al isn’t going to stop torture. Changing the incentives in the government so that national panic can’t happen is more important in my mind. If we nail Bybee and feel we’ve done enough, we’ll have failed. I worry about this substitution.
    And Bybee will have a day in court in which he may well be able to defend himself based on national security claims, the demands for advice from Cheney and the like. So a pre-trial finding of possible criminal behavior isn’t a conviction, and it isn’t even a scheduled trial.
    Were I a lawyer, I’d have a better sense of all of this. And again, I don’t mind being wrong in my interpretation. In many ways, I’d prefer to be wrong on this one.

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  10. questions says:

    Dan,
    Contrary to POA’s view of me, I hope you’re right. But I’m simply not convinced. I think that structure is more determinative of individual decision-making than we might like, and I tend to think that individuals make very very different decisions based on a host of socio-environmental cues. Likely, at some level, this reading interferes with notions of agency and individual responsibility. But simply saying there’s agency so that we can have a system of responsibility and punishment doesn’t make it so. The free will/determinism/justice/responsibility nexus is, for me, unclear and I tend to lean more towards a kind of social determinism which leads to my deep concern about the kinds of institutions we set up to guard against some of our dumber actions.
    A new analogy that captures another part of my thinking about the issues here:
    We have arrested, charged, convicted and jailed countless numbers of drug users and drug dealers. We have increased penalties, increased “costs” in a cost/benefit scheme. We have certainly made it riskier to be a dealer or user. We have not, however, reduced the flow of drugs or the number of drug dealers because the institutional desire for drugs is as strong as ever. The individuals are held responsible, punished wickedly for their crimes, and yet there are always more people lining up to take their places. There’s a social structure in place for drug dealers, and so some people insert themselves into those roles (for a variety of reasons) and voila, we have more dealers, users and drugs. Until we change the cultural desirability of drugs, until we alter the structures so that we don’t provide space for people to assume these roles, we will get drug dealers.
    My reading of the torture industry follows this logic. There’s an “economy” of torture generated by a deeply uncertain international scheme, by deep fear of a certain kind of death (at the hands of terrorists), and by the whole hierarchy of pressures within the governing structures. Many people have individual structural pressure to exaggerate threats in order to serve their own situations, these people are embedded in a set of structures that encourages a particular kind of exaggeration, the exaggerations lead to a particular and very tragic panic. We end up with a torture regime.
    In terms of soldiers and firefighters who deal with panic — a couple of things — first there’s a lot of training and ordinary bureaucratic lawyers don’t necessarily have this kind of training, second, soldiers do panic and the panic is expressed in horrific ways, third, instant situations generate a different kind of panic from chronic situations that seem to be about to go acute at any second. The flu pandemic is more akin to what the torture regime is like. If the flu spreads in the US and becomes highly virulent, we’ll have the mix of chronic (we know it might be coming and we could calmly prepare for a pneumonia death), and the acute (what are the chances that some “Mexican-looking” people who are in public and coughing might get beaten up or burned out of their homes if this pandemic turns into a 1918 style mess? We should be calm and ready for 1918 redux, but we won’t be.
    There are structures and people to fill them. There are always people to fill them so long as the structures are there. My preference is to worry a whole lot more about the structures than about the people who happen to fill them this time around. We arrest a bunch of people and jail them, but we keep the structures, we’ll have accomplished nothing but making POA happy.
    The structures are not at all synonymous with the people who fill them. The structures are comprised of hierarchies and careerist desires to rise rather than fall (you will not ever do away with this one), the generalized fear of death, the media’s need for sensationalism, the general thought patterns of large numbers of people. This whole set up needs to be attached to sunshine laws, and end of “state secrets” doctrine, less desire for hegemony, less need to feel in control of our fate (read some Epictetus!) We do some of this and we might stop some of the panic response.
    But, just for POA, I really really want the US to fail as a nation and I want Israel to annex us. I’ve forgotten all of the Hebrew I learned as a kid and I’d like an excuse to relearn it.
    And Rich, it’s not mockery, it’s exaggeration for effect. The point is that I, at least, don’t have a sense that Bybee wanted to take over the universe and so wrote the memos to help out. I honestly think that the immediate post-9/11 government felt more than anything else that we were soon to have no United States left on the planet, that the Constitution was about to be destroyed, that we were all about to diiiiie. The panic was total and people reverted to type. Cheney is authoritarian in outlook (our Constitution has a built-in tension between popular sovereignty and a narrower oligarchic sensibility, Cheney’s an oligarch of sorts). Yoo is authoritarian. Bybee is weak. They played off of each other is a tragic choreography. Sick and sad, yes. But these parts could have been played by others, and until we can be comfortable with the kind of risks that come with open government, we’ll get more of the same.

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  11. rich says:

    All is not well in Bybee-land, questions. As I pointed out, changing a legal opinion to fit a policy – to support torture — would constitute giving bad advice, if not violate professional ethics. Since it involves greenlighting torture, it goes much further in what it violates and what the consequences should be.
    This is not “litigation”; it’s the rule of law.
    http://thinkprogress.org/2009/04/28/bybee-defends-his-torture-memos/
    “The Department of Justice’s Office of Professional Responsibility is currently conducting a review of Bybee’s work. The New York Times’s Charlie Savage recently reported that the review could find that Bybee’s office changed its legal views to cater to policy makers:
    >”One thing could change that dynamic, however. The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.”
    If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.”

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  12. Dan Kervick says:

    Why did people give in to the panic and what happens when we criminalize panic? Can we institutionalize anti-panic so that, say, Cheney’s fantasies of human destruction can’t ever become the basis of our policy towards “enemy combatants”?
    Well military people, firefighters, rescue workers and others are trained to make sound split-second decisions under conditions that are far more panic-inducing than Cheney, Rumsfeld and Bush faced. The key decisions the latter made were not made on 9/11, while they were flying around on Air Force One or hiding in a bunker, but were made over the course of many months, with adequate time for consultation, research and deliberation.
    It appears to me that these officials didn’t panic, but opportunistically chose to pursue a very radical course, one that they knew violated many laws. And they based their decisions on what they also likely knew to be extremist readings of the Constitution, defended by only a small minority of radical scholars. The institutions of government failed, in part, because these principles and their associates were convinced of the unchallengeable nature of their own power, and believed they would never be held accountable for their roughshod approach to the Constitution and the law. For the sake of getting better performance out of those who hold these positions in the future, and also as a lesson to the public, we need to demonstrate that the Bush administration officials were wrong in their beliefs about what they could get away with.
    Questions, I’m not seeing any place at all for individual accountability in your outlook. Yes, we want to build strong institutions. But strong governing institutions are built up of people, each with an institutionalized job to do, and each held accountable for maintaining their link in the chain with the highest professional standards and fidelity to our laws and Constitutional traditions. Is there pressure in the job? Sure. But a high level of performance under pressure is what we expect from the person we select as head of the executive branch of government and commander-in-chief of the armed forces, and from the team he selects. These are no ordinary jobs and no ordinary responsibilities. Only the highest caliber of person should be in them. If people are not equipped for that level of performance, they shouldn’t seek the jobs in the first place.
    Our national governing institutions are held together with firm rules and expectations, and the legacy of a historic trust upheld by generations of Americans over more than two centuries. We keep the institutions strong by showing from time to time that we *mean business* about these rules and expectations, and that they aren’t merely helpful guidelines to be followed inconstantly and whimsically, or be twisted to one’s own idiosyncratic interpretations.
    Yes, if we assert these high standards of accountability, some people will indeed be scared away from these jobs in government service. Who will still be attracted to such a job? People of strong principle who seek stiff challenges, who thrive on being handed great responsibilities, and who demand much from themselves. People who are intensely loyal to the Constitution which, at the very moment their job begins, they take an oath to preserve, protect and defend. Maybe we’ll get a better cut of individual as a result. Maybe ne’er-do-well, poorly equipped spoiled brats won’t seek the job anymore. And maybe voters will stop electing such poorly-equipped people.
    Maybe we’ll get fewer weak, careerist sycophants like Gonzalez, and more principled individuals with the moral fortitude to see clearly, stay on course, and when necessary say “no” to temptation and short-cuts, even as the storm is raging around them.

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  13. PissedOffAmerican says:

    Oh geez.
    Yeah, questions, I’m sure your desire to see the rule of law flushed down the toilet is an undying sense of patriotism, as is your complete denial that “the lobby” is exercising a corrupting and all too powerful influence over Congress.
    Yes question, its true, I really do seriously question your motives in advancing such arguments, and no, I really don’t equate your arguments with patriotism or love of country.
    Sorry man, but thats just the way it is. I see your denials about AIPAC as insincere, placing the value of truth below the advancement of agenda, and your rejection of the law as a rejection of the very essence of what we claim to be.

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  14. rich says:

    questions @ 5:19PM —
    “I just don’t have your certainty about motives. I suppose that if I were absolutely certain that criminal motives were central … ”
    This is not a question about motive. I do not pretend to be able to read motivations. And I think you offer it as a red herring.
    This is a question of incontrovertible facts. This is an issue of clear statutory law.
    And it is about the non-optional Constitutional framework that structures this country.
    ” … that Bybee awoke one morning and said to himself, ‘Ahhh, I love the sound of screaming in the morning and so I will write torture memos,’ ”
    Resorting to mockery just digs you a deeper hole: doesn’t such a cavalier attitude about torture expose you as not serious? It does speak volumes about your position and the political and moral relativism required to keep it on life support.
    “I think Yoo’s disposition and Cheney’s, too, are more authoritarian … but criminality is something different in my mind.”
    Your mind is not determinative of what is and is not criminal. If freedom of speech is not absolute then no attorney’s advice is sacred or absolute and any such counsel clearly requires unmistakable boundaries. Certainly lawyers who have encouraged and enabled their clients to break the law have paid a price by going to prison. John Mitchell.
    Knowing American history as he did, Jay Bybee had a clear choice: uphold American statutory law — or find a way to break that law without appearing to. It’s all about the appearance of valid authority, not about actually doing what is legal. You should know that by now. What’s that you say? Bybee didn’t know these methods were torture? Bybee didn’t know American History? Ignorance of the law is no excuse my friend, and what’s an ignorant man like Bybee doing sitting on the federal bench?
    http://1.bp.blogspot.com/_9ks36c549BI/SfdosnidciI/AAAAAAAAA8Y/R21W7ysH1MI/s1600-h/tt2.JPG

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  15. questions says:

    Ooooh, POA, I have the worst of motives! I’m an Israeli agent hoping for the downfall of the USA….
    My actual motives are a deep concern for making torture impossible ever again, for getting us all to see the structures and motives that lead to these occasional bursts of horror throughout our history — this isn’t the first time the US has been utterly awful, and I fear it won’t be the last time. I want the government to be able to function without the constant fear of litigation, I want good, moral, thoughtful people to feel welcome in public service. I want John Yoo and Jay Bybee disbarred. I want Cheney to have a limited choice of vacation spots. I’d love it if other countries took steps to limit his travel. I’d like those who are complicit to feel complicit. I’d love to see the Republicans disavow the last 8 years. I’d be thrilled if my various Republican and Israeli relatives changed their views, gave up eating meat, and found their inner granola.
    If I thought there was any reasonable chance that the court system could deal with this, I’d possibly jump at it, but would think a whole lot first. I don’t think the legal system works well at this level.
    And Dan, although courts “determine” a lot of things during the trial and deliberation, to the best of my knowledge, a lot of what is determined has already been set up before the trial. But I want to back off of the specifics for a moment and think systemically. Why did people give in to the panic and what happens when we criminalize panic? Can we institutionalize anti-panic so that, say, Cheney’s fantasies of human destruction can’t ever become the basis of our policy towards “enemy combatants”? We need so much more work than convictions, we need to build secure institutions so that we don’t give in to these Hobbesian moments where we demand an omnipotent sovereign to save us from the State of Nature. I don’t think the criminal justice system will give us what is necessary; I fear it will give us false satisfaction.
    I really do think that some sort of commission could be structured to do more of what needs to happen than would courts. And I’m happy to agree with those who say that perhaps a commission will point the courts in the right direction, and perhaps some properly drawn convictions will result. But convictions don’t interest me as much as recreating institutions interests me. Ever forward, and all.
    But, just for POA, what I really want is nefarious deeds, obfuscation, and lies and dissemblings spread throughout the land. The Kant thing is a disguise! The Socrates thing is totally fake. Justice doesn’t concern me. My understanding of my own ignorance and limitations is false. Really, I have “motives”. For one cannot disagree deeply with POA and still be an American. One must have divided loyalty in order to wonder.

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  16. PissedOffAmerica says:

    The question of “motives” is more appropriately aimed at questions, and his unrelenting efforts to convince us that the power of “the lobby” is a figment of our imagination, and that the law is expendible as it applies to war crimes and treaties.

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  17. Dan Kervick says:

    Questions, the issues you raise about motives, mitigating circumstances, degree of malice, degree of negligence, etc. are all interesting and legitimate questions. But aren’t they the sorts of questions for courts to decide?
    It’s going to take years for all the tangled knots to be unraveled, and for the full scope of what happened over the past eight years to be revealed. Some of it might never be revealed. But we have to start somewhere. We can’t just throw up our hands at the outset and say, “Everybody’s guilty, so nobody’s guilty. Let’s reconcile!” We probably don’t even know a fraction yet about who did what. We don’t *know* that the responsibility is all diffused in an undifferentiated, puzzling mass. There might be some real Mengele-like monsters under the bed. And if none of them are brought to justice, there will be nothing to inhibit their proteges ten or twenty or thirty years from now.
    If there are people who appear to have committed crimes, then charge them with crimes and give them a day in court with competent representation and time-tested rules of evidence and procedure. If they have an excuse – fear of their lives, blackmail, bad legal advice accepted in good faith – they can present those defenses in court so that they can be given the weight they deserve.

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  18. questions says:

    What’s better than a flawed system? How about a truth commission! How about a place where it’s safe to testify? How about a national conversation through which we try to set up institutions that are stronger than any one imperial presidency? How about sunshine? How about finding out how to structure the media so that when whoever it was went on ABC and said, “Hey, torture works” and ABC ran with it, someone would be there to interrupt the meme. How about a conversation about why we are so terrified of our own deaths that we happily inflict death on others as if that could permanently stave off our own?
    I don’t see the Iraq War and the torture policies in isolation. I don’t think a round of prosecutions and convictions of a few people will stop a damned thing. I don’t even think convictions would make a dent in what I see as the problem. And, in fact, I wonder if we’d end up with the law of unintended consequences smacking us upside our collective heads. If there are prosecutions and convictions, I hope I’m utterly wrong in my sense of things. As with any policy or action, it’ll take years and years to know if the deterrence and punishment regime has worked well or badly. I wish us well.
    I know, none of this has any bearing on anything for you, POA…. So grab your halogens and your gas mask and your flu shot and your roach motel and whatever else you might need so that you are rendered immune to my posts!

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  19. PissedOffAmerican says:

    “I have a lot less faith in the system than you do. And a lot of uncomfortable uncertainties”
    Well, by all means, just discard it then, questions.
    Hell, whats better than a flawed system?
    No system at all, right?
    About that single word summary? Does anyone else smell something nasty in here?

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  20. questions says:

    POA,
    There are degrees of culpability behind actions. Someone who commits a crime under threat of death is not considered to be as guilty as someone who premeditatedly commits a crime. The action is the same, but the thinking behind the action determines the criminality. If you hit someone in your car and you’re drunk or trying to kill that person, you’re in a different position from someone who loses control of his or her car.
    What I don’t know, but maybe you do (hooray for you) is whether or not Bybee and Yoo and England and Graner and all the nameless souls caught up in this mess acted with malice aforethought, under threat, or somewhere in between.
    National defense changes things as well. I’m glad, oh so glad, that you know already that all actions were taken with deliberate malice and that the courts will convict and lock up the miscreants. I have a lot less faith in the system than you do. And a lot of uncomfortable uncertainties. I happy for you that you walk the earth with deep certainty, though.

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  21. Ron E. Kendricks says:

    May I reiterate my original comment: We need a Non-Partisan Truth Commission to investigate and make recommendations for possible presecution, and a special presecutor who is mandated and empowered to follow-up on these recommendations.I would like to highly recommend two members of such a commission: (l)Jurist Thomas Buergental, the American judge at the International Court of Justice In the Hague and (2) Bill Moyers who has dedicated his life to truth, justice, and transparency. We need to be proactive and way out front on this challenging issue. We have the opportunity to let the world know that we, as American people, repudiate and will convict the criminal acts of the 43rd Presidency. If we do not rise to this challenge, then the international community of young people and young thinking people will do it for us.

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  22. PissedOffAmerican says:

    One has to wonder, in the society that questions advocates that we become, who decides whether or not to prosecute the next bevy of crimes our trusted leaders decide to commit. So when and if the right regains the majority, is it their turn to decide who is and who is not bound by the rule of law?
    What the hell, why don’t we just draw straws on it? Or perhaps rip the petals off a daisy, one by one; “He prosecutes me, he prosecutes me not, he prosecutes me…”
    What a crock of horseshit.
    Laws were apparently broken by criminals. Gee golly, if you commit crimes, you’re a criminal. Has that basic premise somehow become invalid? Investigate the alleged crimes, and if crimes were indeed committed, prosecute the suspected criminals. It ain’t fuckin’ rocket science, or fodder for mental masturbation.
    Its no miracle that the same person denying the power of “the lobby” is the same person denying the wisdom of the law.
    Just because someone puts together a few thousand words to advance an argument doesn’t mean the argument can’t be summarized with a single word. I’ll just leave it to your imagination which word I would choose.

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  23. PissedOffAmerican says:

    “POA, what do you think about Bybee? You live in CA in the 9th Circuit”
    Linda, surely you have read enough of my posts to know what I “think” about some piece of shit like Bybee.

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  24. questions says:

    Rich,
    I just don’t have your certainty about motives. I suppose that if I were absolutely certain that criminal motives were central to everything, that Bybee awoke one morning and said to himself, “Ahhh, I love the sound of screaming in the morning and so I will write torture memos,” then I’d probably side with you. I think Yoo’s disposition and Cheney’s, too, are more authoritarian, and Cheney’s fear of death is a thing to behold (as far as I’m concerned at any rate), but criminality is something different in my mind.
    I really do think that 9/11 paranoia is a phenomenon we have yet to grasp. I think many of these people were honestly fearful of the continuation of the republic, without which no constitution would be of any use. They clearly went to far, but they did it in a way that makes criminality less clear to me.
    I don’t think they were trying to “destroy the body politic”. I don’t think “heal” is the right verb either. I think they were worried about survival and damn the consequences, we can deal with those later. The sense of emergency was all-pervasive. And I tend to think Cheney still has some of that sense. I think he’s off the deep end. But off the deep end is not the same as criminal.
    As for ends/means justifications, I’m too much of a Kantian to justify at all what the torture regime did, and in fact I don’t justify it at all. But the punishment regime is yet another issue and here I’m not convinced that we have the right process in place both for ends/means issues (governance and getting the truth out) and for more ethical concerns (I’m not sure where the responsibility for the systemic rot should be placed).
    So despite the brutality, I still think a commission is the way to go. Perhaps, as Kervick notes, trials might be pursued using information that comes out in a commission. But I have to thank you for your humane tone and honest discussion. I have a lot to think about.
    (I need to be work-productive for a few hours so I’m going to resist the compulsion to post for a while…. Today has been a lost day. Oh dear.)

    Reply

  25. rich says:

    question,
    You’re ‘analogy’ does not hold.
    “We all know that some doctors make egregious, negligent errors and we need a system to ensure that they no longer practice medicine, and we need a system that compensates the injured patients as well.”
    In fact, it’s more than offensive. Doctors generally try to heal people–but no one tried to maintain the integrity of the law. Most doctors make good-faith attempts to heal patients. But nothing about ‘opinions’ or ‘advice’ or actions of the politicians/ lawyers/ operational staff involved can honestly be read as have been offered in good faith, or performed with integrity.
    Torture is/was illegal, by statute.
    Torture is antithetical to every aspect of the supreme law of the land, and is anathema to the American character.
    Everyone knew what torture is and what defines it.
    These guys tried to ‘re-define’ torture — claimed it was something it wasn’t — in order to break those laws.
    They lied about the law, and acted in bad faith, in order to violate our hard, fast line and teh clear language prohibiting torture.
    Not saying it’s the first time we’ve tortured.
    Just that your analogy is profoundly offensive.
    These guys weren’t ‘doctors’ and they weren’t attempting to heal anybody or fix anything. The body politic and prevailing administrative practice obviously needed an adjustment — in the opposite direction. You’re analogy suggest that it’d be ok–if someone meant well–to apply ‘a little more poison’ to heal a patient and ‘a little more’ treason to save the nation.
    And that’s the root of it: there are some actions which may not be taken at all. Else you destroy that country you claim to love. There is no in-between. There is no ends-justify-the-means. Once across that bright line, where does it stop? Everything across that line damages the country.
    The evidence says every one knew what they were doing had no legal, moral or political defense.
    Never, NEVER tell yourself the intent was to heal rather than destroy the body politic.

    Reply

  26. questions says:

    I’m not sure that this analogy will hold, but I’m working on it. We all know that some doctors make egregious, negligent errors and we need a system to ensure that they no longer practice medicine, and we need a system that compensates the injured patients as well. I have generally trusted the courts to deal with these issues and have long opposed tort reform as a matter of principle.
    BUT, I have to be honest enough to admit that there are a few problems with the current tort system. First, defensive medicine is bad for patients, for doctors, for causing the overconsumption of medical care, for keeping ob/gyns in practice, possibly for deterring younger doctors from entering medicine and certainly for encouraging older doctors to retire early. Also, because one needs a lawyer, plenty of deserving cases never make it to court.
    I think court access is still crucial in many cases and so were I to discuss tort reform, I’d do so in a court context of some sort.
    Court cases have not, so far as I’ve seen, deterred malpractice, have not eased the pain of many of the sufferers, and have deterred some behavior we don’t want deterred, and have encouraged some behavior we don’t want to encourage. Were we to do it all over again, we might come up with a different system that has different incentives and disincentives so that we get what we really want (bad doctors out of their lab coats, and some fair compensation for those injured through gross negligence), and we don’t get what it is we shouldn’t want (insane malpractice premiums, overtesting, medical cost inflation related to all of this. I know it’s a complicated issue and premiums have lots to do with the stock market, but I’m arguing a different, more systemic issue here.)
    I see parallels with the issue of successful deterrence and unsuccessful deterrence and the use of the court system in torture trials. What we want is no more torture, reasonable compensation for the injured, and the torturers out of the dungeons. We might also want the dungeons destroyed. I have no problem with these points. What I tend to worry about here is what kind of incentives do we set up in the process of getting to our goals. If we try to deter the torturers with a big hammer, we may well hit ourselves in the head just as we seem to have done in the malpractice arena. We want healthy babies delivered and we want safe hysterectomies and proper diagnosis of breast cancer, but we end up with too few ob/gyns who have to price themselves out of the market and who do c-sections way way too often. Not the right incentive system.
    I am not in favor of doing anything that would A)encourage more torture or make it easier to torture B)that would make it harder to govern C)that would allow people to blame a few guilty parties and avoid the general social responsibility for this practice. I am outraged, but I am also thoughtful and somewhat well-versed in the history of thinking about these kinds of issues from a philosophical perspective. I don’t think there’s an easy answer for getting us where we need to be, and I especially don’t think that the court system is able to cope with this. We have too long a tradition of deferral to executive power during war, we have too well-paved a road lined with “top secret” documents, too many people who will be in serious CYA-mode for the court system to work well.
    But even if the court system were to work well, I’m not sure that’s the right place for the policy mess that became our default interrogation system. The pressures on people were immense, insane, inflamed and likely causative. That is, in a different world-historical moment, we wouldn’t have tortured, but in this one, we did. As wrong as the torture was, as stupid as the torture was, as wicked as the torture was, it was embedded in a historical moment that needs profound understanding, not simple “Ya dun bad” judgments. Even though, indeed, they dun bad.
    As usual, my sense of nuance defeats easy action, but easy action makes me decidedly uneasy. The Iraq War was easy action. Af/Pak is turning into easy action. The very ease of any course of action should set off alarm bells in all of us.
    Finally, maybe there’s a distinction to be drawn between Bybee and Yoo and Cheney on the one hand, and everyone else on the other. Bybee and Yoo clearly were on a fishing trip to justify in CYA fashion what was already our policy. And maybe at that level there’s clear criminal behavior, but since I’m not a lawyer I can’t speak to this. I would guess, though, that nothing is this clear cut and that “national security” is a wild, broad, and scary concept that is at the heart of what it is to be a nation. And maybe it’s really at the level of “national security” that we need to start talking. (Nevermind that torture didn’t keep us safe, the fact is that many THOUGHT and still THINK that torture does keep us safe. “Safe” needs to be rethought.)
    And thanks, Dan, for working on the elusive middle ground where one point of view doesn’t necessarily preclude the other!

    Reply

  27. Ron Kendricks says:

    Steve, thank you for taking the time and energy to elucidate your thinking on the Commission on Accountability petition. This allowed me to gain insight into the broadness of your consciousness.

    Reply

  28. Linda says:

    Questions,
    Sunstein writes too many books just like Richard Posner. I have his book on FDR’s Second Bill of Rights sitting in the “to read” pile–just might look at the dissent one as more interesting. Obama administration is full of believers in behavioral economics, and that gets very close to crowd behavior and Milgram. But I’m really more interested in long run with that Sunstein does as OBM in a relatively obscure but very powerful position in charge of regulations.
    And I’d still like to know what Samantha Powers thinks about all this.
    Don S, I could not agree more. The American Psychological Association, the American Psychiatric Association, the American Medical Association, and the American Bar Association should be looking at their members on ethics issues. I think Yoo and Bybee should be disbarred, and Bybee should be impeached.
    POA, what do you think about Bybee? You live in CA in the 9th Circuit.

    Reply

  29. Dan Kervick says:

    The risk of being sued or prosecuted for violating the law is a risk inherent in both government service and many other lines of business. The prosecutor’s job is to serve the public both by prosecuting crimes, when good prima facie evidence exists that a crime was committed, and by declining to prosecute crimes when the evidence isn’t there.
    We shouldn’t decide not to prosecute crimes, whether in government or any other important line of work, just because some will conclude that people in that line of work sometimes get prosecuted when there is evidence they have committed crimes, and therefore won’t want to enter that line of work. What would happen to our systems of accountability if we let ourselves be ruled by the fear of negative effects of holding people accountable?

    Reply

  30. rich says:

    questions,
    “I think I have a different sense of how government functions from what you have.”
    Indeed. I don’t know where you got your ‘sense of how government functions’, but check around and rethink your premise.
    “People will simply not think government is worth the risk. If I had to choose between taking some high-level government job for which I was eminently qualified with the risk that my good faith advice might bankrupt me, land me in court or in prison . .. . I think I’d choose the latter.”
    There are plenty of “eminently qualified” people who are willing to give good, sound legal advice that does not violate the law, shame the nation, or irreparably harm our safety national security.
    Those people are better qualified. Those people are better.
    Your mistake is in believing Bybee, Yoo and Addington proficed “good faith advice.” That is clearly not the case. They knew torture was illegal; their legal advice erred in actively misreading the law, in order to break the law, and that has had devastating consequences for our American soldiers.
    questions,
    You say that “real deterrence will come long before the advice-giving” — if so, that is an excellent result that benefits us all, makes us safer and provides the Prznt with the best possible advice. Anyone who would choose to offer illegal advice, politically unsound advice or militarily ineffective advice — namely, to torture — has no place in public service.
    Where did you pick up the notion that those persons and only those person were capable of providing sound counsel? They are free to pursue private and law-abiding lives. There is no cost to us or to the nation — no cost at all — for their private decision.
    You are uncomfortable with this deterrent. But why? It will attract people who will act lawfully — and making the actions of our government consistent with the rule of law is what defines this country and makes it worth defending. That’s what makes America great. Explain what value you see in any other circumstance.
    You say enforcing the rule of law will be a “real deterrence” to public service by those who would break the law that all of us must obey.
    Good — that’s as it should be.
    Again, what’s the drawback here? What benefit is there to your scenario?
    Imagine yourself in the room. I’d sure make my viewpoint heard–and most advisors won’t pass up that chance. If they’re not guilty of fvcking the rest of us over, they have nothing to fear. Presenting near-treasonous options, though, is the job of a Wormtongue or a Benedict Arnold—and as our Founding Fathers knew great power is a great temptation and absolute power corrupts—absolutely.
    What you’re offering is absolute power, and the guarantee that our public servants will be corrupted. Good luck with that.

    Reply

  31. Dan Kervick says:

    While Naomi Wolf does does some preliminary huffing and puffing about hypocrisy, in the end she seems to be calling for the standard prosecutorial process. Start with the little fish, and offer them immunity in exchange for their testimony against bigger fish. Build the cases as far up the chain as they go, and can be successfully prosecuted.
    By the way, a truth commission doesn’t have to be something that takes the place of prosecutions. They could be used as something that builds public awareness and public outrage about the crimes, and prepares the ground for prosecutions. The National Commission on the Disappearance of Persons in Argentian did just that, I believe.

    Reply

  32. questions says:

    Rich,
    I think I have a different sense of how government functions from what you have. I don’t think “good faith” is sufficient for someone to overcome a fear of a lawsuit. In fact, I think the real deterrence will come long before the advice-giving. People will simply not think government is worth the risk. If I had to choose between taking some high-level government job for which I was eminently qualified with the risk that my good faith advice might bankrupt me, land me in court or in prison, or staying at my current job at taking care of my family and personal life, I think I’d choose the latter. If I really really think that some policy is worthwhile, and I am told it’s legal, and I carry it out…or if I really really think the line between protecting and upholding the constitution and protecting human lives is scarily thin, and I guess wrong and end up prosecuted…. There’s a governance issue. I take this one seriously.
    I feel certain that people got it wrong this time around, but that doesn’t mean that prosecution is the best way to deal with getting it wrong.

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  33. Dan Kervick says:

    Just a few comments on truth and reconciliation commissions.
    First, I’m not going to sign a petition for something that is so vaguely formulated as the call on the Commission on Accountability website. There are all sorts of models for truth commissions, truth and reconciliation commissions, commissions of inquiry etc. The Commission on Accountability folks don’t give us much detail about what kind of “accountability” they are recommending. They don’t say whether the process will be open or closed; they don’t say whether it will be empowered to grant amnesties or preliminary pardons; they don’t even tell us whether the commission is to be preliminary to prosecutions or in lieu of prosecutions.
    They claim Amnesty International as a co-sponsor. But Amnesty International is more specific, and calls for the following:
    “Press President Obama and your Members of Congress to help establish or support a nonpartisan independent commission of inquiry and urge them to help expose and prosecute those responsible for torture and abuse. The U.S. government is legally obligated by the U.N. Convention Against Torture to investigate allegations of torture and prosecute those who order, authorize or carry out torture.”
    Some of the models from other countries that are cited in connection with a possible US truth and reconciliation commission don’t apply to our own situation in the US.
    First, the South African model clearly doesn’t apply. South Africa was emerging from a half-century of an odious, but legal form of government. Deciding which people had actually done something illegal, and which people were just racist cretins acting legally within the framework of ugly laws, would have been an impossibly complex task. And it is very arguable that that was not at all the most important task before South African society.
    The models of some of the South American nations that have also had truth and reconciliation commissions also don’t apply, since many of those followed years of widespread civil disorder and violence, and it was simply not feasible for one part of the society to criminally prosecute the massive segment of the same society that had participated in violent and murderous crimes.
    We in the United States are emerging from eight years under a single administration that appears to have broken several of our own laws, with the possible acquiescence and assistance of several members of Congress. The scope of the law-breaking is more confined and more tractable, and occurred over a more manageable period of time. We have a good general sense of who the key law-breakers are, and where we need to look to identify others.
    We can’t overlook the need in all this to provide a strong deterrent effect on future US governments and the members of future administrations. That means punishment – and punishment that goes beyond being labeled a Bad Man on some final report to a commission. If we do move forward with a truth commission, that commission should not grant amnesty in exchange for testimony, as was done in South Africa.
    I believe one important outcome that has to flow from all this is that we send a strong deterrent message and establish vigorous incentives regarding the behavior and professionalism of government lawyers. Lawyers in future executive branches need to know that if their bosses want them to write up some piece of legal gibberish to give as a CYA permission slip to their team of inquisitors, these lawyers will actually be held to account for it, and may be found guilty of a kind of legal malpractice that rises to the level of crimes against humanity, and carries very severe punishments.
    And truth commission proceedings also need to be very public. If the workings of the commission aren’t public, I don’t see how it can build the public confidence, engagement and trust needed for the “reconciliation” part of truth and reconciliation. It will just become a – perhaps justified – target for conspiracy theorists. There has to be some sense of deep public participation and engagement in the process, with the opportunity for coming to terms emotionally with the past.

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  34. rich says:

    questions,
    ” .. . candor on the part of advisers, spooks, lawyers and the like is in jeopardy if such candor leads to possible prosecution. The president needs to hear from everyone.”
    This is nonsense. If they are advocating something legitimate, they have nothing to worry about. If they can make a case for something extraordinary but worthwhile, it won’t require any courage.
    Your idea rests upon the premise that a) torture proponents have ever offered good advice, and b) torture has some utility. Both are patently false. If Prztnl advisors are making a case for torture, they do not belong in government.
    Nothing will prevent advisors from offering good advice when they are operating in good faith. To the extent bad advice is suppressed, because they obviously violate Constitution and the conscience of any human, that’s all to the good. Any advisor that WOULD offer that kind of advice DOES need the specter of legal punishment and the internal check on actually opening his or her mouth.
    Acting on such advice substantially damages the country and our national security because it is WEAK. Hard power comes from adhering to our values in practice. That doesn’t mean we can’t take tough measures. It just means weak and abusive tactics kill the ability of hard power to accomplish our political objectives. Just read up on George Washington–I heard there’s a history there that may be relevant to America.
    As for CLINTON — so what? This stuff’s been going on for decades and it hardly matters who else did it. Sad argument — I’ll deal with the rest later.

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  35. questions says:

    Rich,
    Our pieces crossed in the mail….
    Read the Naomi Wolf piece that (gasp!) Tahoe links to above. She’s closer to where I think I am on all of this. I’m not sure still what it would mean to prosecute Rice, et al, though. I doubt we’d get very far, I doubt that it would do much good, but certainly the offer of immunity to everyone below the level of Sec’y State makes sense to me. I think better legal minds than mine need to think through the whole thing and really look at longterm governance issues, which I do indeed think are a significant barrier to prosecution.
    (cue the fog machine, POA.)
    (Tahoe, I’m so sorry that I find a common moment with you, really! (insert smiley emoticon here))

    Reply

  36. questions says:

    Rich,
    The more blunt way to make my point, I suppose, is that candor on the part of advisers, spooks, lawyers and the like is in jeopardy if such candor leads to possible prosecution. The president needs to hear from everyone (isn’t that the defense of Chas Freeman). Someone who isn’t actually advocating something illegal, but who THINKS he or she might be crossing the line, is unlikely to speak up. So that’s a governance problem and it’s the one Obama was pointing to when he spoke at the CIA and said, “No prosecutions here”.
    Second, wasn’t it Clinton who pushed the whole outsourcing of torture via rendition? If it’s illegal in the US, just export…. This is a governance problem in that we didn’t, even before Bush, have a culture of humane interrogation, we just outsourced it so that our hands could seem cleaner than they were. Our policies should be workable domestically, our institutions should not allow for any kind of torture. Prosecutions, rather than deep public examinations, will drive these practices further underground.
    So we’ll get a two-fold response — the ducking of responsibility and refusal to have open discussion, and the concomitant ever more secret, more buried continuation of the policies. The Watergate proceedings did nothing to stop government/partisan corruption. But we now have the suffix “gate” attached to all sorts of terms.
    POA seems convinced that there’s only one kind of justice in the world — conviction, imprisonment, and possibly the death penalty, I guess. I see multiple kinds of justice. Yoo and Bybee could be disbarred, Cheney is going to be stuck closer to home, they all have destroyed their reputations, perhaps the speaking fees will dry up. Bybee likely knew what he was doing and feels sick. Yoo seems incapable of feeling sick, but his career path can be interrupted. It’s not prison, but prison isn’t the only version of justice. These people all have shown horrific judgment with horrific results for some innocent people and some not-so-innocent people. The ruination they have caused is beyond measure. But traditional punishment via the courts may well not be worth the cost.
    As for calling me “Unamerican,” given what I think “American” means to many, I’m okay with that. “Cowardly?” So you’re BRAVE for screaming pseudonymously for war crimes trials? Hmmmm. Let me think about that one. “Circle jerk?” Really? “Weak?” Then explain. This one is the only potentially valid claim you’ve made, you great and brave arbiter of all things “American” and strong. At least there’s one person out there who knows precisely what it is to be AMERICAN. (And I suppose it has nothing to do with place of birth, but only with a specific set of POA-approved beliefs. I’ll double-check one of my copies of the Constitution just to be sure.)
    As I’ve said before, all prosecutions are dependent upon the prosecutor’s chances of either making a name for him/herself or on the chances of success. Nowhere near all crimes are prosecuted. Huge numbers of cases are settled outside of court, are bargained away, are dropped for many reasons. So don’t give me the “WE ARE A NATION OF LAWS” speech. There’s no such thing. We approximate it occasionally, with all our biases intact. Rich people and white people do better. Connected people do better. What do you think will happen with war crimes trials?

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  37. rich says:

    questions,
    “There is a systemic problem in US institutions that transcends any action by any individual.
    -snip-
    It’s not the individuals who failed to act who are guilty, it’s the system. Punishing individuals does nothing to stop the system.”
    You’re putting me on. This is a both-and issue.
    You sound a little like a hippie from a Cheech-n-Chong movie: ‘Hey, mannn, The System is oppressing all of us, mannn…’
    No lie, though; did you really just say that “Punishing individuals does nothing to stop the system.”
    Of course it does. What else do you expect will serve as real and substantive deterrent for individuals eager to torture and prone to violate the most basic American legal principles — the very legal principles that make us who we are? Your way leaves no consequences at all. In that ‘approach’ no one will bother with accountability at all. But consequences and accountability are all about law & order, and if conservatives aren’t for law & order and the rule of law, then everything defaults to raw abuse of power.
    questions,
    If you don’t punish staff (‘implementers’) and officials (‘deciders’), what’s to stop them from doing it again? Never mind the lack of disincentive; you’re offering tacit approval by looking the other way.
    There is a systemic issue. Our political profession and the legal caste have ruptured the social and legal contract. Sophistry and hair-splitting from now til kingdom-come is continually deployed to rationalize the refusal to uphold any substantial relationship between our foundational principles and how the law is applied and practiced.
    On short: Barack Obama has no more statutory right to suspend torture than George Bush did to order torture. He can -lower case- order the practice stopped as an administrator. He can display moral leadership to get us back on track.
    But any Power Barack Obama wields does not pivots upon a nonexistent Divine Right of Presidents. George Bush ordered torture ‘because he can’, in the process violating every political precept and legal foundation securing the stability and legitimacy of the United States as a government. There is no Divine Right of Presidents to back George Bush’s decision up.
    If we default to Prznt. Obama’s ‘decision’ to end torture, we affirm that erroneous & nonexistent Divine Right of Prznts — and set precedent. Nothing stops the NEXT President from going further, or from torturing you.
    We don’t need Barack Obama’s ‘benificence’. The decision, whether-or-not to torture, just isn’t his or Bush’s to make. Unalienable rights are not endowed by any elected official, all of whom are fallible and many of whom are prone to misjudgment. Legitimacy of government flows from the consent of the governed. No one consented to torture. No one consented to cruel and unusual punishment. No one consented to the use of Kingly Decrees that violate the law and eviscerate the Constitution — that make a mockery of legislation, that put an end habeas corpus.
    Yeah we need a systemic solution; we need to set a precedent by punishing staff and legal advisors alike. This is not retribution; this is the rule of law. By applying the law, you solve the systemic issue, or start doing so.
    What we have here is sedition or treason by legal opinion. Now we obviously have technical definitions — but what is the legal and administrative equivalent? Attorneys can defend murderers; providing novel excuses and encouragement to commit murder is another story.
    It’s one thing to defend a client using novel means; it’s quite another to provide a blueprint for eviscerating every legal precept and shared political practice that binds us together as a nation. That quite clearly equates to treason.
    If there is no clear boundary on this point, on what is required of lawyers, then anything goes and nothing stands between us and the despotic misrule by the petty legalisms of system gone so haywire it can no longer forge any connection between the spirit and the letter of the law. The footing of the entire legal profession then rests on a slippery slope: anything goes, if you’re a lawyer. Some seem to view the Declaration of Independence and our history as optional; the game to get away with anything and everything without abiding by overarching law. But when no lawyer or politician is required to have any shared values nor any real adherence to those supreme laws, nor any functional bond to the political and social contract, then we have no nation at all.
    We don’t have to give Jay Bybee the benefit of the doubt. Give him every benefit of the doubt he gave us, and that he gave the prohibition of cruel & unusual punishment: None.
    Impeach Bybee immediately — his unfitness is on display for the world to see. We owe him nothing. Worse, every decision rendered from his court will be discredited, scorned and viewed as a scourge visited upon the citizens from whom he draws his power; and seen as something that must be repaired in the long-term but defied in the short-term–and denounced in between. He does not serve legitimately or in good faith.

    Reply

  38. Tahoe Editor says:

    http://spectator.org/archives/2009/04/28/soros-show-trials
    SOROS SHOW TRIALS
    By Matthew Vadum on 4.28.09 @ 6:08AM
    The so-called Commission on Accountability that mysteriously appeared on the political scene a few days ago to push for show trials related to War on Terror interrogation policies is a PR hoax created by liberal philanthropist George Soros and political operatives sympathetic to the Obama administration.

    http://www.guardian.co.uk/commentisfree/2009/apr/28/torture-hyprocrisy
    Naomi Wolf: We are all torturers in America
    The sudden clamour to prosecute the CIA operatives who carried out waterboarding is the height of hypocrisy.

    Reply

  39. PissedOffAmerican says:

    Oh give it up, questions. We are either a nation of laws, or we ain’t. I am not at all interested in a point by point back and forth about the wisdom of discarding our basic tenets and foundations because it might be “uncomfortable” for our nation to actually be what we claim to be.
    I find your argument weak, unamerican, and cowardly. Find someone else to get into a circle jerk with you.

    Reply

  40. pauline says:

    Emptywheel says it all for me —
    “My favorite part is the quotes from Brian Ross, admitting he didn’t ask the most obvious follow-ups.
    “Mr. Kiriakou was the only on-the-record source cited by ABC. In the televised portion of the interview, Mr. Ross did not ask Mr. Kiriakou specifically about what kind of reports he was privy to or how long he had access to the information. “It didn’t even occur to me that they’d keep doing” the waterboarding, Mr. Ross said last week. “It doesn’t make any sense to me.”
    He added, “I didn’t give enough credit to the fiendishness of the C.I.A.”
    Golly gee! Brian Ross seems to say, whodathunk that those professional liars at the CIA would lie to me?
    And, in a throwback to the Pulitzer-prize winning story on the Rent-a-General program that no one wants to talk about, Stelter goes onto note that ABC hired this guy who lied his ass off to them. (More recently, John Kerry’s Senate Foreign Relations Committee has hired this trained liar.)
    But here’s the thing. To quote our current President, why look backwards? Why not look forward? Because those trained ex-spook liars are doing it again!
    As I pointed out the other day, the public record makes it pretty clear that the CIA did not notify Congress about torture before they started–and in a Congressional briefing given after waterboarding Abu Zubaydah 83 times, they did not reveal they had already started waterboarding. According to both Porter Goss’ account and Nancy Pelosi’s, it appears, CIA and the Bush Administration violated laws requiring Congressional notice.
    But rather than tell that story and largely through the considerable manipulation and deceit skills of Porter Goss, the press wants to cover the “drama” of Goss’ and Pelosi’s purportedly conflicting stories.
    What was it Bush said? Fool me once, and figure you can play me for a fool again?
    source:
    http://emptywheel.firedoglake.com/2009/04/28/breaking-news-cias-spooks-lie-and-deceive/#more-4040

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  41. rich says:

    questions,
    I don’t see how effective ‘governance’ is put at risk by dumping torturers. Can you explain? The opposite is clearly the case.
    This seems to me the most disturbing argument put forth in recent days, though haven’t had a chance to read your post in detail.
    Isn’t it like asking ‘If we purge embezzlers from the Treasury Dept., how will we attract high-quality thieves from public service?’
    Will expand on this tonight.

    Reply

  42. David says:

    Consistent with their insistence on forcing UN weapons inspectors out of Iraq because they were establishing the fact that there were no WMDs. They were not about to let reality interfere with their goal of creating their own reality, and there was nothing to which they would not stoop. Really no surprise that they outed the identity of a CIA operative. Appalling, but not surprising.
    I am becoming more in favor of simply getting the truth into the public consciousness, and then let that take its course, with the wheels of justice also then more able to turn.

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  43. DonS says:

    Linda, I’m with you on that one. As a therpist for a lot of years I called attention to unethical behavior, usually not to the liking of the authorities. The involvement of various ‘professionals’ in the psychological realm in the torture regimen get’s my blood boiling, and the lack of appropriate response by the American Psychological Association is beyond explanation. These people are either sick, deluded, greedy, and not fit to mess with other’s minds.

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  44. questions says:

    POA,
    Instead of merely calling for fog lights to deal with my posting, (much more clever, by the way, than the usual fare, but it’s overused now…(insert smiley emoticon here)) why don’t you go point by point to show me how wrong I am. Explain how there’s no adverse effect on governance, explain how only the truth and goodness will emanate from war crimes trials, explain how only the bad guys will be harmed, explain how no one will use trials to help them cleanse their consciences and locate all the bad stuff somewhere over there and not ever over here, explain how trials will change our institutions in only good ways, explain how trials will give us the right deterrent effect and not the wrong one….
    I take these issues seriously, and if you don’t, explain why I shouldn’t. The name-calling you engage in (halogens) takes the place of real arguments. Try for real arguments. Make a claim and back it up with reason. “Halogen” doesn’t convince, it bullies. There’s a kind of rhetorical device called “blind and dumb criticism” identified by David Hume and more recently by Roland Barthes (I think). The basic idea of this rhetorical style is that one doesn’t ever admit that one’s opponent might have a valid point; rather, one merely says, “Hmmm. I don’t get it so there’s no “it” to get.” Or, “Gee, that’s dumb.” Or, “My opponent uses too many words and so can’t possibly make any sense.” You’ve aimed these kinds of words at me repeatedly without really arguing for the position. So, again, tell me what you think trials will accomplish, really. Not the fantasy version where truth, justice, the American Way and Superman all emerge, but where lawyers wrangle for years, (see Norm Coleman for example), where evidence is suddenly top secret and unavailable, where dates and events are confused and no one can isolate a specific event in order to convict a specific person…. In short (not that I’m ever “short”, explain how the trials will work. Don’t just “call for something” without saying precisely what that “something” is.
    And Linda, sorry for the misunderstanding. The Sunstein book is called _Why Societies Need Dissent_. It’s a typical quick read, the nth book by a prolific author, but it covers the psych. experiments nicely. There are numerous experiments that show that we alter our perceptions based on crowd conditions. So what starts as “torture” in one’s conscience turns into “harsh techniques” after the boss says so, and becomes “normal” when everyone is doing it. We lose judgment in numerous situations. It’s possible that the violence on tv stuff works through a similar mechanism. Real horror becomes normalized. I can’t for the life of me figure out how to convict on this basis. But then, I have a knee-jerk liberal sob side to me that thinks “I’m from a broken home” probably should reduce criminal responsibility at some level to be determined by people versed in the law.

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  45. Linda says:

    Questions,
    You missed one thing in my much earlier comment, i.e., you wrote as if I had been for criminal trials. I prefer truth/reconciliation for all the reasons you stated.
    I am very familiar with the Milgram experiments though I haven’t read Sunstein on “dissent.” I’m also familiar with variations of it done as well as Phil Zimbardo’s Stanford prisoner study and what he calls “the Lucifer effect.” They are hard to do any more because of human subjects rules implemented since they were done.
    But the results are consistently about the same in that about 2/3 of people will inflict pain on others and obey authority and 1/3 won’t. Nobody, to my knowledge, has ever explained these findings–could be genetic. I have no idea.
    And while I don’t think it makes me particularly noble, I have numerous times stood up to authority, blown whistles, and paid a price for it. But I’ve never regretted doing what I knew was the right thing.
    If we learn more detail and facts, I think we will find that some of the torture in 2002 was done to justify the Iraq War that I also was against being done in my name. Neither the war or torture has made us more safe–only more hated.
    But torture is against the Geneva Conventions and makes us less respected by our allies and friends.
    And I don’t think enough people in this country are ready for truth or reconciliation. But I do think Obama needs to lead on this and give it more priority than just a distraction from his domestic agenda, i.e., something that we can worry about next year.
    For me it’s number on on his foreign policy agenda. Anyhow Sunstein isn’t the foreign policy expert in his family–so I’d be interested in knowing what his wife, Samantha Power, thinks

    Reply

  46. PissedOffAmerican says:

    “And, again, we should be on guard for unintended consequences. If we run trials, what does that do to future government workers? Would you take a job with the feds if you thought yadayadayada…………..”
    Hit the switch on your Halogens, questions has his fogger fired up.

    Reply

  47. PissedOffAmerican says:

    “The aggressive form of interrogation we have used to gather information that prevented further attacks on our citizens is no worse than hazing done at academies and universities around the world”
    Now there’s a truly sick puppy. Thats the kind of sicko that gets picked to be an “interogator”.

    Reply

  48. Judy Wilder says:

    Why do we view bombing victims differently than torture victims? Bombing is impersonal. Torture is personal. Easy to put one out of the mind. Not so true for the other.

    Reply

  49. questions says:

    I am not trivializing or sanctioning torture, or “war crimes” as Mr. Kendricks calls it. (“Torture” sounds worse to my ear.)
    Torture is wrong, must be prevented, should never have happened, is unacceptable. We probably all agree on this issue. Where I differ though, is what we do about it and how we are to read the consequences of action. I refuse to draw a narrow band around the torture issue, call for trials and condemnations of the guilty and then wash my hands of the whole thing for having called for the easiest response. (I’m having a Derrida/DeMan complex wash over me….Except that DeMan was less clearly guilty than Cheney et al.)
    There is a systemic problem in US institutions that transcends any action by any individual. My real target is the systemic permission to torture. Just as torturers and their APA assistants know precisely how to wound the psyches of their victims, so those in charge knew precisely how to manipulate the system to ensure that individuals would feel powerless to stop the torture. It’s not the individuals who failed to act who are guilty, it’s the system. Punishing individuals does nothing to stop the system.
    I’m not sure I have another ten ways to explain why I think that a commission is better than trials. Trials won’t lead to the truth but rather will lead to legal wrangling for decades, trials won’t alter the whole system that allowed this policy to move forward, trials will excuse us from proper self-examination. And finally, trials will catch those least able to defend themselves and will ensnare the lowest levels of the complicit. Cheney isn’t going to prison. He also, I guess, isn’t going to Spain.

    Reply

  50. Ron E. Kendricks says:

    Steve I disagree with your call for a Commission on Accountability. The title of the petition is in and of iself, too weak. We need a Commission on War Crimes (that is what torture is) and an appointed special prosecutor.

    Reply

  51. ... says:

    it is called delusional.. the usa suffers from this still… cheney seems to embody the trait in spades.. bush was a willing accomplice… obama doesn’t seem to want to ‘look back’.. it is necessary in order to ‘move forward’..

    Reply

  52. Paul Norheim says:

    Questions,
    Look at it as a consistent modus operandi: they intimidated
    subordinated officials who questioned their agenda and
    methods; they intimidated and put pressure on intelligence
    agencies who did not deliver what they wanted to hear, and
    they intimidated (tortured) prisoners to make them say what
    they wanted to hear. It`s a structural problem.
    Convinced? I am sure Pol Pot was convinced that his insane
    world view was correct as well. And the Bush admin. showed
    clearly in other cases (yellow cake from Niger etc.) that they
    were willing to present evidence THEY KNEW WAS FALSE to
    support a case that they (MAYBE) believed in. It is probably that
    particular mix of convictions AND cynicism that was fatal.
    If one of these guys had come up with the idea to waterboard
    his own grandmother, forcing her to admit something he knew
    she had no knowledge about, but that his guts feelings made
    him convinced was correct, he would not hesitate to do it if he
    believed it would serve their grand cause.

    Reply

  53. DonS says:

    Questions, whether the issue is ‘pencil sharpeners” or elevated to the overall question of good governance, raising the concern still trivializes the maginitude. Torture, and the legal violations sanctioning it, trumps good governance. Could we say it is anathema to good governance? Although Musolini made the trains run on time. Not my model of good governance.
    Put it another way, I as a potential good civil servant (which I have been in a past life), do I want to be associated with a government that finds it acceptable to empower it’s civil servants to torture?

    Reply

  54. ... says:

    questions, the innocent iraqis who have died from usa’s bombing can’t as you say “talk and share and heal together.” perhaps their relatives can which i suppose is what you are trying to say…
    bombing and torture are two different techniques reflecting the same corrupt attitude on the part of those responsible.. thinking either is okay is bullshit and dan is bang on to this point as he did earlier.. it’s about lording over others with power, which is basically the usa circa the past 60 years… it is just becoming a lot more ugly as the usa seems to be descending into everything it would have been opposed to at a point in the not too distant past…

    Reply

  55. questions says:

    Re the distinction between torturing and bombing — I’ll take a stab at it.
    Bombing, unless it’s carpet bombing of endless duration, is a limited event which kills, maims, destroys, and then ends. Those bombed all suffer together in human solidarity, and they have nothing to be ashamed of, though they do have horror and loss. They have history together, they can talk and share and heal together. Horror, yes, but public horror, horror that ends, horror that isn’t in the direct hands of another person whose hands are on your body.
    The sheer physicality of torture sets it apart.
    Torture is deliberate, hands-on, isolated, of uncertain temporality, shameful in that one gives up information, shameful in the individual’s loss of bodily and psychic power, shameful in the way that humiliation is used, designed to break the emotions of one particular individual human being. Torture removes the sense of space and time, takes away any instinctive trust one has of other human beings, torture is designed to destroy the victim so that s/he can never again be whole, torture plays with you. Torture makes you betray that which you most love, that which you most believe, that on which you depend. Torture rends body and mind.
    Bombing is horrible, but we all deal with death eventually.
    Torture is far worse.
    *****
    And DonS, I’m sincere about the issues of governance. This is not a “civil service complaint”. I take governance seriously and I’m not one possessed by the need to punish wrongdoers. I’m possessed by the need to make our institutions impervious to bad policy-making. There is nothing trivial about the possibility that our government could render itself completely unfunctional should we mishandle this issue. (And no, I’m not worried about some pencil sharpener’s worrying about just how sharp he makes pencils. I’m worried about upper level policy makers who either refuse to make policy, or who refuse to join the government at all because of the legal risks, or make policy designed solely to avoid lawsuits and not at all to create good government. Government needs to be selfless and moral, not selfish, defensive, and ever worried about lawsuits. Please note where Obama was when he announced that he wouldn’t allow the prosecution of government workers. Perhaps this issue is lesser than I tend to think, but then at least it ought to be addressed.)
    And Paul, when I first read that piece in the paper I was horrified, but on re-reading I wonder if maybe the intent wasn’t so much to create false confessions of Iraqi-9/11 connections as it was that people were really convinced of the connection. I don’t know. I wouldn’t trust Cheney et al to do anything moral, so I certainly wouldn’t be surprised if they went fishing for false confessions. Certainly police departments across the country engage in torture to get false confessions. But they also torture to get confessions they are convinced are true. I couldn’t say which this one is. So sad.

    Reply

  56. Josh Meah says:

    Wow Dan Kervick.
    Again, that’s both excellent and eloquent. I’d like to have a talk some time.
    I think the responses to your inquiries exist within a few different dimensions of the national security context.
    First, yes, some may be emboldened by such deliberations (or that may be the construction presented to some), but it’s virtually indisputable that our “adversaries” are now emboldened by our lack of moral decency. Terrorism is usually politically motivated violence toward a sense of justice and nothing can fuel such a type of motivation more than injustice. If torture is an injustice, then I expect more fuel to be added in the qualitative sense of boosting the intensity of the anti-Americanism and in the quantitative sense of motivating more people to join the cause. Unless our torture policies actually deter some from taking up arms against the U.S., I see a truth and reconciliation type of commission offering up nothing but gains. Fewer angry people with fewer reasons to be angry. As it stands, one innocent person is tortured and the effects are widespread. To me, less torture means less threat. If a terrorist attack took place during the deliberations, yes, that would be horrible. But terror attacks can take place anytime. Justice can’t wait for terrorism.
    As a sidenote — I don’t like that word terrorism. I don’t feel like a full explanation here is necessary, but I have a hunch the audience of this blog understands the more nuanced feelings I have about such a term.
    Second, I don’t have a good response to the issue about why, in the American mindset, it’s bad to bomb civilians abroad but worse to torture an individual. Personally, I don’t feel that’s the case. A compelling case can be made that the war in Iraq was a genocide, an argument that captures both the intention and the legal text of international law. However, it’s highly unlikely that the world will punish the U.S. for the Iraq war, and certainly not in a way that will punish the war-bringers in our government that are the most responsible. Consequently, a change must start from within. We incarcerate 1% of our population, bomb people all around the world, legalize guns, and suffer from substantially more violence than any developed country (and more than many developing and undeveloped countries as well — especially once you look at the data — our violence spreads around throughout the U.S. though it usually concentrated in only specific conflict territories elsewhere in the world). Anyway, my point here is that a questioning of our own national morality is probably the only thing that can happen right now, and that’s substantially better than nothing. Europeans banned capital punishment — it’s a big deal and impacts the European outlook on the world.
    Third, to piggyback on the comment made by Paul Norheim, banning torture serves at least two major purposes within our national intelligence establishment: (1) it leads to less false intelligence; (2) it gives our government one fewer method through which false security threats can be constructed.
    Fourth, practices like torture decrease U.S. soft power. We all know that — but really — it’s substantial. I have friends in the ME and South Asia – quite smart, educated people – that won’t make there way to the U.S. out of fear of U.S. security protocols. That’s less talent — the U.S. needs talent. We’ve always relied on such talent. We can’t bully everyone. We can really do without pushing the world’s best up and coming scientists and engineers away from our shores, especially considering that’s where our greatest deficits are.
    Fifth, as regards those wars in Iraq, Afghanistan, and Pakistan. We know we never belonged in Iraq, but as we leave Iraq, it’s probably better if the Iraqi people have less of a reason to hate the U.S. On the whole though, our activity in Iraq, Afghanistan, and Pakistan is often so absurdly violent that I’m not sure our torture practices can actually add any more fuel to that fire. Some of their citizens are tortured abroad, but most of their citizens know someone who is dead or injured as a result of U.S. related conflict. And since torture isn’t doing anything good for us, now is as good of a time as ever to work on our conscience.
    Besides, the U.S. has been in a war almost every year since it’s inception and certainly in the past century. If we’re going to ban torture, let’s do it already.

    Reply

  57. Dan Kervick says:

    Josh Meah,
    Thanks for your thoughtful comments. I didn’t really mean to take any side on the issue of a truth and reconciliation commission vs. criminal prosecution vs. something else. My point was just to ask people to think about why it is that empires have embraced or resorted to torture over and over and over. Could it be that the infliction of pain on others is a more or less ineluctable consequence of the impulse to rule others, especially those who do wish not to be ruled?
    I also wonder about the liberal imperial mindset that seems to reckon it horrible and shameful to waterboard a man or break his legs, but not so shameful to drop bombs in the vicinity his children. I suppose many would appeal to something like the old “Doctrine of Double Effect”, and say that in the case of torture our direct intention is to inflict pain on the man, whereas in the case of bombing our direct intention is to achieve some sort of submission from the enemy government, or destruction of that government, and the blowing up of innocent members of the populace is only some foreseen, but incidental and unintended consequence of the pursuit of the primary goal.
    Apart from the fact that, in my book, this doctrine might just as well be called the “Doctrine of Double Think”, couldn’t the torture defender say his direct intention is not really to inflict pain on the person being interrogated, in the manner of a sadist, but only to extract the hidden truth that is lodged away in his stubborn brain behind a stubborn tongue, and that the pain inflicted is the unintended consequence of the only practical means of achieving that extraction?
    Suppose we do have a truth and reconciliation commission. Will the commission actually achieve reconciliation? We know that there are many people in this country like Vladimir Val Cymbal above who believe that the torture was mainly inflicted on people who are our enemies in war, and that it was justified in the same way other horrifying and atrocious actions are justified in a life and death struggle of a nation against its mortal enemies. Isn’t it possible that the commission will do its thing; that the stinking, oozing truths will all be splayed out before us; and yet some will condemn those truths, others will uphold them, we’ll remain as divided as before?
    And who is it that has to be reconciled to whom? We are not talking about the aftermath of a civil war, or of a universally despised dictatorship. The victims don’t live here. They live abroad. Some are in fact still incarcerated, and may be so for many years. When the truth commission’s finding are in, will we record them on a scroll and take that scroll to whatever Devil’s Island hell hole now contains our prisoners, read them a solemn proclamation of apology for past waterboardings, limb-breakings, canine attacks and teeth-smashings, and then send them back to their cages?
    What happens if there is some terrorist attack while the truth commission is conducting its pious deliberations? What do you think will be the public response then? Reconciliation? Half the country will say that our vile savagery provoked an act of vengeance by the people of the wronged victims. Another half will say that our enemies were emboldened by the spectacle of our squeamish deliberations, and manifest evidence of a delicate weakness of will. Will the truth commission then become a blood-in-the-streets commission?
    I am not sure America is ready for truth and reconciliation. We are still fighting in Afghanistan, Iraq and Pakistan. The wars that spawned these horrors are still ongoing. The arguments are still intense and hostile; the wounds are still gaping and steaming. And the infernal stream leading down into the Conrad’s heart of darkness has many tributaries, most of which this country, even those who are outraged by torture, are unprepared to follow to their sources. Whether we follow the course of prosecutions or commissions, we will probably get the same results: small monsters disposed of with great fanfare and ceremony, large monsters left undisturbed in their lairs, and most of the embarrassing, unmentionable secrets and compromises of power and domination preserved in place.

    Reply

  58. ... says:

    paul – people with no moral compass are not going to be scared off by that either.. read Vladimir Val Cymbal’s comments for further elucidation…

    Reply

  59. Paul Norheim says:

    Recently there has been a lot of discussion whether “torture
    works” or not, i.e. whether it produces truth, or makes the
    victims of torture more willing to tell the interrogators what
    they want to hear. This discussion is surprisingly naive, because
    it is largely based on false and outdated premisses.
    Who says that the Bush White House really wanted to hear the
    truth when they legalized torture?
    The Bush government did not want the media to tell the truth.
    As we all know, they were not particularly interested in the CIA
    or other intelligence offices to produce truth either (thus
    Douglas Feith created an alternative intelligence gathering
    office, to avoid truth production).
    What did they want them to do? To tell them what they wanted
    to hear. To Cheney, Bush, Feith, Rumsfeld and others,
    intelligence “works” if it produces exactly what they want to
    hear. The same applies to torture.
    In some highly important cases, they were more interested in
    false statements that fit into their own agendas, than hearing
    the truth from the prisoners. In these cases, torture was used
    simply to produce lies.
    Here is probably the gravest example
    “The (Senate Armed Services Committee report on detainees,
    released last week) found that Maj. Paul Burney, a United States
    Army psychiatrist assigned to interrogations in Guantánamo Bay
    that summer of 2002, told Army investigators of another White
    House imperative: “A large part of the time we were focused on
    trying to establish a link between Al Qaeda and Iraq and we
    were not being successful.” As higher-ups got more “frustrated”
    at the inability to prove this connection, the major said, “there
    was more and more pressure to resort to measures” that might
    produce that intelligence.
    In other words, the ticking time bomb was not another potential
    Qaeda attack on America but the Bush administration’s ticking
    timetable for selling a war in Iraq; it wanted to pressure
    Congress to pass a war resolution before the 2002 midterm
    elections. Bybee’s memo was written the week after the then-
    secret (and subsequently leaked) “Downing Street memo,” in
    which the head of British intelligence informed Tony Blair that
    the Bush White House was so determined to go to war in Iraq
    that “the intelligence and facts were being fixed around the
    policy.” A month after Bybee’s memo, on Sept. 8, 2002, Cheney
    would make his infamous appearance on “Meet the Press,”
    hyping both Saddam’s W.M.D.s and the “number of contacts
    over the years” between Al Qaeda and Iraq. If only 9/11 could
    somehow be pinned on Iraq, the case for war would be a
    slamdunk.
    But there were no links between 9/11 and Iraq, and the White
    House knew it. Torture may have been the last hope for
    coercing such bogus “intelligence” from detainees who would
    be tempted to say anything to stop the waterboarding.
    Last week Bush-Cheney defenders, true to form, dismissed the
    Senate Armed Services Committee report as “partisan.” But as
    the committee chairman, Carl Levin, told me, the report received
    unanimous support from its members — John McCain, Lindsey
    Graham and Joe Lieberman included.
    Levin also emphasized the report’s accounts of military lawyers
    who dissented from White House doctrine — only to be
    disregarded. The Bush administration was “driven,” Levin said.
    By what? “They’d say it was to get more information. But they
    were desperate to find a link between Al Qaeda and Iraq.”
    Five years after the Abu Ghraib revelations, we must
    acknowledge that our government methodically authorized
    torture and lied about it. But we also must contemplate the
    possibility that it did so not just out of a sincere, if criminally
    misguided, desire to “protect” us but also to promote an
    unnecessary and catastrophic war. Instead of saving us from
    “another 9/11,” torture was a tool in the campaign to falsify and
    exploit 9/11 so that fearful Americans would be bamboozled
    into a mission that had nothing to do with Al Qaeda. The lying
    about Iraq remains the original sin from which flows much of
    the Bush White House’s illegality.”
    http://www.nytimes.com/2009/04/26/opinion/26rich.html?
    _r=1&em
    ————————-
    This implies that the premises for the discussion whether
    torture works or not, have become obsolete. Sometimes torture
    “works” because the tortured tells the truth, and sometimes it is
    the perfect tool to make him tell what the interrogators and
    their bosses want to hear. The above quoted example
    represents to me the gravest crime committed during the Bush
    administration.
    ————————
    Then a short reply to something “questions” said:
    “Would you take a job with the feds if you thought you needed
    a fortune to deal with legal defense — defense for following
    your boss’s orders? ”
    Those who are insecure whether it would be right or wrong to
    participate in enterprises involving waterboarding prisoners
    several hundred times a month – those kind of people should
    stay away from such jobs. If people that have no moral compass
    whatsoever at least get scared by the thought of needing a
    fortune to deal with legal defense, then this damocles sword is
    a good thing.

    Reply

  60. DonS says:

    Questions says “we should be on guard for unintended consequences. If we run trials, what does that do to future government workers?”
    Asssuming you mean this seriously, it degrades the significance of the offenses which have likely been committed on a number of levels. This is not remotely comparable to a civil service complaint, and to suggest transferability of the issues is ridiculous, not to mention an insult to the idea of human dignity that has been violated. So I’ll assume you are not serious and your reference to Dickens would suggest hyperbole.

    Reply

  61. ManagedChaos says:

    Vladi, get a clue comrade. 9/11 didn’t plunge our economy into the toilet…the Republicans and their deregulation did. 9/11 was an excuse for the neo-cons to enact their changes upon the American way of life. You know, that catalyzing event, like a new Pearl Harbor. For 8 years after 9/11, these so-called terrorists just sat back and watched our country dig itself deeper into a hole, spend itself deeper into a hole, and model itself after principles and values completely opposite of what this country stands for.
    Where is the evidence that torture prevented any attacks? I can provide evidence that not torturing provided solid intelligence though. Torture was used to generate false intelligence and false threats that were used to build a case of war against Iraq and scare the American public into thinking Bush was protecting them when in fact he was making us less safe.
    It’s easy to abide by the law during peaceful times but the constitution and bill of rights’ real test comes when the shit hits the fan. Those are the very times when defending the constitution from enemies both foreign and abroad are most important.
    The most important duty of the President of the United States is to preserve, protect and defend the Constitution of the Unites States. Contrary to popular belief, it is not to keep me from getting my head hacked off by some crazy terrorist.

    Reply

  62. DonS says:

    One big problem as I see it in a truth commission is that the US exceptonalist mindset does not allow for such a commission to do more than, well, than is relatively acceptable to a country with an exceptionalist mindset. The conventional American self-image requires differentiation from a South Africa or parts of South America, helpful as commissions may have been in those cases.
    Of course one can say that this is only stating the obvious, which is also what is compelling about legal prosecutions and convictions. We all understand what that means; the outcome of the judicial process. Albeit just as many folks will feel justified in discounting, negating, and dismissing a judicial decision as a commission proceeding or finding, but there is that one stark punctuation: “guilty” (or not).
    Atrios, in his cutting way, links to remind us some of those folks who would likely excuse torture and be standing on the sidelines with baseball bats to ‘influence’ the parameters of a potential commission, figuratively of course . . . He calls them the “crazy base land”:
    http://www.eschatonblog.com/2009/04/ruled-by-their-base.html

    Reply

  63. questions says:

    Linda,
    On the “just following orders” thing — Cass Sunstein has written about the widely reported Milgram experiment. The upshot is that a lot of people simply don’t have the psychic strength to question authority even while witnessing seeming torture. Some people are able to get past the issue of white coat authority, possible humiliation, fear of being wrong in the challenge and so on, but most of us are a)highly dubious of our own judgments b)fearful of job loss c)overly trusting of seeming authority d)in the post 9/11 context, enormously frightened of becoming the idiot who gave flying lessons to someone who only wanted to learn how to fly and not to land.
    Given how unbelievably difficult it is to buck authority in these situations, and given that there was a military hierarchy on top of everything else, I’m not entirely sure what one does about the “I was only doing my job” defense. It’s so emotionally complicated. Do you ever challenge police officers when you’re unsure of their behavior? Would you go against an entire roomful of people who are arguing one particular position when you thought the opposite? Some of us do these things and many many of us don’t. Sunstein’s book on dissent is a readable primer on these issues, complete with numerous discussions of psych experiments.
    Making torture the official policy of the US was a horrific decision with horrific effects. The underlying cause is likely a defect in human thinking that WE are more important than THEY (this is the crux of the ticking bomb scenario). If we want to end this practice, imprisoning individuals is not really the answer. What we really need is a set of institutions, sunshine policies, less fear of death, and, indeed, good governance by moral people. A commission seems to me to be better able to move in this direction. As I said above, the future counts more than the past. There is much to be done, and much to be understood so that we can build accordingly.
    And, again, we should be on guard for unintended consequences. If we run trials, what does that do to future government workers? Would you take a job with the feds if you thought you needed a fortune to deal with legal defense — defense for following your boss’s orders? Would current fed workers stay at work given the morale problems? The single-minded pursuit of what in the end is only one of many possible versions of “justice” may cost more than it’s worth. (See Jarndyce vs. Jarndyce for the cost of legal pursuits….) I understand the depth of disagreement on this issue, and I know how satisfying the possibility of imprisoning the torturers would be. But satisfaction comes at a steep cost, and it’s not likely to be very satisfying in the end.

    Reply

  64. Vladimir Val Cymbal says:

    You seem like a very nice well meaning person but also one totally disconnected from reality. You do not bring a knife to a gun fight and you do not talk nice to enemies that murder civilians and break bones, beat mercilessly, hack off the heads of your soldiers, and murder almost three thousand of your countrymen plunging the economy of your country into the toilet. America’s way of life was drastically changed after 9/11.
    The aggressive form of interrogation we have used to gather information that prevented further attacks on our citizens is no worse than hazing done at academies and universities around the world. Apparently like so many over protected from reality Americans wishing for a world without evil, you are under the delusion that if you ignore evil people and pretend that they have the same aspirations as you we will all end up sitting around a camp fire singing kumbaya. Well here is a reality check, they do not want to ever be your friend. It is their goal to make you submit to them or die.

    Reply

  65. ... says:

    dan kervick – excellent post as is usual from you… the usa has turned into a military complex for the most part… the citizens seem to be slow to recognize what this means when they are essentially being run by a military enterprise… thanks for pointing it out to them in clear understandable terms..

    Reply

  66. Josh Meah says:

    Dan, your post was excellent, but I don’t think it
    actually challenges the premise of a commission
    like this.
    All imperialist powers may have tortured, but that
    historical fact says nothing about our current
    dilemma. Factually speaking, Truth and
    Reconciliation Commissions have done wonders for
    South Africa and parts of South America. They
    expose injustice and help alter the composition of
    the country’s collective consciousness.
    Here, the goal is not to right all of our wrongs,
    though I agree that’s a noble goal. I wish we did
    right all of our wrongs.
    Instead, it’s a recognition that the character of
    our nation is altered substantially by the unjust
    activities, in this case torture, that we allow
    our government to undertake. We want to embed our
    travesties deep within our country’s historical
    memory. That’s worthwhile.
    The battle isn’t for the eternal soul of the
    nation. There is no such thing. It’s for the soul
    of tomorrow. U.S. moral character, like all moral
    character, will change with time and context. The
    Iraq War will not be mankind’s last blunder and
    somewhere in the world, people will continued to
    be tortured by governments maybe forever. The
    purpose of a commission is to finally take a
    practical step against recent U.S. activities.
    On issues of actually managing global ethics and
    security issues, practical policy will virtually
    never be permanent policy.
    Incidentally, it’s true that this commission may
    very well do nothing else but wipe our recent past
    under the carpet, but that depends not on the
    commission but on the attention span of U.S.
    citizens.
    Make a commission like this public. Make it
    popular. Shine light on the process. Obama’s
    electronic network is big enough that if the
    President of the U.S. backed this kind of
    initiative, his mass following would ensure the
    initiative glowed in the media until the
    conclusion of the investigations. He talked about
    a “Google for government” — this is a fantastic
    way to make such a notion reality.
    There’s ample enough hate-based energy against the
    Bush Administration to make a commission like this
    a practical success.
    I mean, Barack Obama was just elected. America
    does know how to make change. Or, if not change,
    we do know how to mobilize under a banner of hate.

    Reply

  67. Linda says:

    Sadly for the morality of our country, public opinon on torture is not where it should be, i.e., as some above have indicated, i.e., far too many people in U.S. believe that torture is OK if it gets results or is used on really bad guys.
    First, the ends do not justify the means when the means are torture.
    Second, “just following orders” is not a defense for torture, genocide, murder, or anything. Legal opinions or memos filled with tortured (pun intended) logic can’t justify it. Military and everybody has an obligation to not follow illegal or immoral orders.
    As Steve eloquently reminded us, information about torture has been public knowledge from Hersh’s articles to Gibney’s movie, Mayer’s book, and Mark Danner’s articles in NY Review of Books. The recently released memos only provided more gory details. Over these years I posted often that I think a nonpartisan truth and reconciliation commission is the best middle ground way to get out the facts and then be able to move forward with our national values and ideals intact.
    Unfortunately even on this blog, those of us who find torture abhorrent are split between those who favor truth/reconciliation v. those who favor criminal prosecution–but reality is that both sides together are not really a resounding majority of public opinion.
    It is clear that Obama favors Senate Intelligence Committee investigation that will kick the can down the road until at least early next year.
    U.S. exceptionalism is gone until we look back and deal with this. What has made U.S. exceptional are the values and ideas on which this country was founded and what made U.S. the country admired around the globe. South Africa and Germany both were able to deal with ugly facts of their history. If we don’t, then I fear that we are witnessing evening in America. And that’s just plain sad.

    Reply

  68. David says:

    As good as anything I’ve ever read on this, Dan. This is honest insight uttered articulately, succinctly, and compellingly.
    We Americans need desperately to both recognize what our nation has done and to decide who and what we really want to be as a nation. We also need to recognize the actual consequences. This applies not only to our global resource imperialism but also our role in the devastation of the earth’s ecosystems.
    We can ignore, deny, and twist reality to our heart’s content, but only at our own, and everyone else’s, peril.
    And to say that as the world’s most powerful and influential nation we have the greatest moral obligation to the future of this planet as we know it is an understatement.
    The days of “A nation does not have principles, only interests” is long over, unless one means enlightened self interest, with enlightened as the operative word.

    Reply

  69. JamesL says:

    Excellent post Dan. American recognition of what it has done is essential for America to continue in any significant semblance to what it likes to think it is all about. America’s actions will all come home to roost an the manure piles will grow and grow.
    There a lot of Americans who recognize and reject the (American) propaganda that we needed to torture to keep ourselves safe and to make Iraq free.
    But I also know many Americans somehow manage to ignore any similarity between Americans now, and the complicity of the German population in the Nazi crimes of WWII. I know people who firmly believe it is right and just that America “kick their ass and steal their gas”, as some kind of inalienable American right to trample anyone, anywhere that they choose, fur the supposed justifications of American “security”, or the plain convenience of the right to choose their own guzzler-UV.
    Obama has inherited a nation bearing a gaping abdominal wound inflicted by its recent rulers and the notion that the long arm of American greed is sanctioned by God. Obama can choose to ‘look forward’ only by ignoring the need for sutures to heal the wound. One does not–cannot–look forward after murder, or assault, figuring it is just too emotionally difficult for all involved to re-construct and describe in details of the heinous act. That’s a cop-out of the first magnitude, and at the moment it is Obama’s cop-out.
    I think Obama has great potential, but it is not so much as a centrist as a person (finally!) who has the intellect and speaking skills to draw the fine distinctions necessary to REALLY set a new course for the nation, and to re-establish the lnks between the ideals that a few people managed to write down 250 years ago as the US Constitution, and modern technological realities that have stressed those precepts to the breaking point.
    For those who whine that doing the right thing will hamper Obama’s chances for a second term, I suggest that a one termer who takes a difficult road to achieve what is right demonstrates more about the best that America has to offer than a two termer who easily and without qualm subverts the Constitution. We just had one of those.

    Reply

  70. DonS says:

    Dan, you are right of course, about the apology — especially since we are now pretty sure Bush’s war of choice, and Cheney’s imperial executive of choice, were intentionally contrived with Iraq as the whipping boy.
    Such an apology would come despite the many Americans who harbor the ugly imperial midset you outline, while denying it to themselves. It is the sort of rationale that seeks to obfuscate the legitimacy of torture by invoking the “ticking time bomb” irrelevancy, i.e., “look over here at this” at this potential horrible threat to our very existence” — and by the way don’t look at anything else or your a traitor.

    Reply

  71. Dan Kervick says:

    Torture appears to be inherent in the imperial enterprise. The Romans did it; the Ottomans did it; the British did it; the French did it. No country has every ruled the world beyond its shores by some kind soft power love-force. That’s a fantasy of liberal imperialists, who are intoxicated by the vain love of power and control but hate and refuse to contemplate the *means* of power and control.
    Nor do countries rule solely through “mystique”. The mystique of power is just the vague premonition of threat and pain.
    Humanity does not want to be ruled. When it fights back against its would-be rulers, those rulers use every kind of physical pain, psychological pain and collective punishment they can muster to secure obedience and hang onto domination.
    Some of the recent sanctimony about torture comes from people who still haven’t managed to confront the awful moral implications of the Iraq War. They are anguished by the thought of one tormented human being in a torture chamber. But when asked to contemplate the use of big bombs, little bombs and cluster bombs to blow up hundreds of little children in front of their parents eyes, and the agonizing and murderous effect of unleashing anarchic hell on an entire country, some still seem to mumble something about “regrettable but necessary” or “not the same thing”.
    Don’t they get it? We endeavored to torture the *entire country* of Iraq into submission. Abu Ghraib was only one centralized location for the administration of a much broader campaign of state-authorized pain. The Iraqis didn’t attack us and weren’t planning to attack us. But because they refused to *submit to us*, we shocked them and awed them. We dropped bombs on their children. We rained terror from the skies. Then we occupied the country and continued to apply pain to all those who still refused to submit. Yet even now, armies of self-satisfied, would-be Washington “critics” of the war will only allow themselves to discuss the ways in which the war was a strategic mistake – for AMERICANS.
    We’re a long way from the end of this road on this matter. We can do all we want to procure “truth” and “justice” here among OURSELVES. But these proceedings can only get us half-truths and half-justice, and only delay the reckoning. We will never be free from the burden of the consciousness of guilt until we apologize to the people we injured. Wake me when America manages to do that.
    Statecraft is torture-craft, Steve. The inner Nixon is the inner torturer. The real Nixon is a mass murderer who rendered untold Vietnamese into steaming piles of slaughtered human meat – because they refused to submit.

    Reply

  72. jon says:

    There must be no grants of immunity offered in exchange for
    testimony.
    Impanel a commission or convene a Congressional committee if
    you must.
    The pursuit of justice cannot be sidelined by the interest to hear a
    good story quickly.
    There need to be court trials that bring to account those who
    developed the policy of torture and the abrogation our our laws
    and Constitution, and the violation of our signed treaties. The
    Lyndie England’s should not bear the brunt of the blame, as they
    have up till now. The FBI knows how to investigate mafia families
    and drug cartels, and that is how they should proceed here.

    Reply

  73. Mike Milton says:

    Actually, you need a criminal investigation followed by a court case
    where indicated and appropriate sentences…. You need a
    Nuremberg, not a commission

    Reply

  74. Clay Thorp says:

    Oh wait…did I mention that torture is a really big no no?
    Ok…just making sure.

    Reply

  75. Clay Thorp says:

    And aside from my typo’s, aren’t I a good writer? (Feel free to disagree)

    Reply

  76. Clay Thorp says:

    Steve,
    Is Obama is trying his hardest to play the politics game in America’s best interst when it comes to torture? He has played the part of the CENTRIST better than anyone could in this era, as far as I’m concerned. Leaving it up to Holder speaks of his confidence in the rule of law, does it not?
    Holder aside, isn’t Obama doing his best to try and avoid the prosecution of Bush officials because he knows that such a debacle would distract the public away from domestic recovery in the form of STIMULUS? Is he not attempting to seal his place in history as the one who got us out of the greatest economic crisis since The Great Depression? The torture memos (along with any other global threat to our image and prestige) are an unfortunate distraction from what Obama has planned for the American populace who are looking for a solid economy and a return of ‘GOVERNMENT 101’ leadership.

    Reply

  77. Patrick says:

    Steve, I’ve signed the petition and I will pass it on to friends. You might be interested as well in checking out Link TV’s Accountability on Torture (http://www.linktv.org/accountability) site. It includes the latest updates on emerging U.S. policy in light of torture revelations.

    Reply

  78. PissedOffAmerican says:

    “POA, you bring up one reason Obama made a mistake….”
    Are you sure it was a “mistake”? Seems to me these posturing pieces of shit on BOTH sides of the aisle are working hard to make sure this thing doesn’t climb up the ladder.

    Reply

  79. Dave Huntsman says:

    POA, you bring up one reason Obama made a mistake by telling the
    bottom-line folks who carried out illegal (and, immoral) orders –
    contrary to the oath all of us Federal employees take – that they
    don’t have to cooperate. Even if a Special Prosecutor would
    naturally want to focus on higher-ups, the way he builds a case
    against them is to ‘persuade’ the bottom-level folks to cooperate.
    Now they don’t have to – and Obama had no right to do that.
    He had the power to do it; but he didn’t have the right.

    Reply

  80. PissedOffAmerican says:

    And I would like to see this horseshit about not prosecuting the actual interrogators cease. What incentive do the small fry have to give up their superiors if the spectre of possible prosecution is not hanging over their heads? If a few of them give up the goods for immunity, fine, but you aren’t going to get to that point if they don’t feel the possibility of prosecution is very real and looming.
    Besides, the convention on torture is very specific. “I was only following orders” IS NOT a valid defense. The treaty specifically addresses this bogus defense, and we are treaty bound to prosecute ALL the participants to torure.

    Reply

  81. Dave Huntsman says:

    Steve –
    I believe we need an independent commission to come to some
    conclusions about the economic crisis. But… on torture, there
    are very clear reasons to believe that high officials violated
    domestic laws, international laws the U.S. is signatory to, and
    the Constitution. The time for just ‘study’ is long past,
    particularly since the Congress the past few years has totally
    abrogated their responsibility to be an independent check on the
    Executive and impeaching many when they should have.
    Therefore, I have signed the petition requesting the
    appointment of a Special Prosecutor. AND, that Special
    Prosecutor MUST be a Republican of the highest integrity.
    Someone who will find out if high crimes have been committed –
    and then act.
    The appointment of a (Republican) Special Prosecutor would also
    take this off the plate of both the President and the Congress,
    leaving them to concentrate on the worst combination of
    domestic, international, and planetary crises possibly in human
    history.

    Reply

  82. ToddinHB says:

    Steve, I don’t post often, but this issue has hit me like no other. Obama cannot ignore this and we shouldn’t let him. I will exert whatever pressure I can to force us to confront this abomination. This is a fight we must have, and if there are casualties along the way, then it is the price we pay for allowing our elected officials to perpetrate the horrors of the torture memos.
    It is deeply disturbing that Obama and his administration are taking the politically expedient path. I understand his motivation, but the fact that this trumps his sense of what is best for the country’s psyche is a tremendous disappointment.
    Excellent post and please, I beseech thee, do not permit this important issue to fade.
    “I have met the enemy and it is us.”

    Reply

  83. ... says:

    a big part of the problem is the democrats basically condoned a lot of the bush admin actions..nancy pelosi and others like her were all fine with this stuff, so it hard to imagine them getting behind any accountability, as it would also involve them… that is a big problem as i see it and something obama is not going to undertake…

    Reply

  84. scott says:

    Steve, thanks for this post. Let’s let our system work, with AG Holder making independent decisions on what to prosecute. That Jay Bybee will continue to serve in a lifetime position on a federal court after having signed a document that authorizes the commission of what are undoubtedly war crimes is especially repugnant.
    I realize this is a risky route, but there are many in America who don’t just want the truth, they want high Bush administration officials to receive punishment just like any other citizen would if they broke the law.

    Reply

  85. ... says:

    steve, i appreciate your post here.. however, if i want to see which way the wind is blowing, reading your site is sometimes a clear indication… the need for accountability isn’t going away, and it needs to be more then some passing fancy of a few people, or politicians.. it’s great news a few people in power see the need for this… will it be pushed under the rug with a commission the same as 9-11 was? i agree with dons and many others ideas here on this as well as poa’s concern it is just another waste of time…
    accountability is necessary..the bush admin used 9-11 as a cover for all sorts of bullshit… so far obama has shown himself unable to deal directly with this… this shit isn’t going away and it has do be addressed in a way where the world view on the usa’s actions and intentions are clean of the muddy waters they’re still perceived to be in since a little after 9-11…
    all roads lead back to 9-11, a watershed event.. it also had a commission set and the results for it were essentially worthless… i share poa’s concern this will just be another waste of time… i think a different course is necessary as all these commissions appear to do is sweep reality under the rug for long enough in the hopes that people will forget over the course of time the bullshit they and others were subject to… the usa is better then that.. i hope obama recognizes the importance of this and acts accordingly… so far he is a big disappointment..
    this capatcha sure is a pain in the ass… 4th try here…

    Reply

  86. el che says:

    http://antiwar.com/radio/2009/04/25/ray-mcgovern-16/
    Ray McGovern, former senior analyst at the CIA, discusses the emotional aversion CIA agents developed for their own torture tactics, the moral bankruptcy of torture apologists, the barriers to an effective Senate Intelligence Committee torture investigation and the reemergence of long time cover-up artist Warren Rudman.
    MP3 here. (23:14)

    Reply

  87. Enon says:

    Innocent people weren’t just tortured, some were murdered. Remember Dilawar?
    I’m with William Pfaff on this one. From his column of 21 April:
    The latest case of the human moral vacuum created and encouraged during the Bush years is so outrageous, perverse, sadistic and nihilistic that it demands attention, for all that it tells us about the rest that has happened. I speak of the ordered, authorized, and conscientiously supervised water-boarding of two prisoners 266 times.
    The men who authorized, ordered, and performed such acts should be hanged. It is as simple as that.

    Reply

  88. PissedOffAmerican says:

    “We need something like a truth commission in this country to explore how and why America became a nation that embraced torture at the highest levels of political office”
    Oh please, not another fucking “commission” to cover crimes with lies.
    What we need is an AG that will do his damned duty, and pursue the letter of the law.
    Frankly Steve, this suprises me from you. Surely, being a Washington insider, you know these “commissions” are about as worthless as balls on a worm. Whenever we hear the word “commission”, we can assume the fix is in.
    Why don’t they just enforce the friggin’ law, for chrisakes. Thats all we need.
    And geez, man; “Truth Commission”? When we see these lying posturing pieces of shit say the word “truth”, we should know they’re lying.
    Find another name for it. Perhaps they could call it the “Cover Up Committee”, or something along those lines.

    Reply

  89. Kathleen G says:

    Obama “no one is above the law”
    Holder “no one is above the law”
    Leahy “no one is above the law”
    Whitehouse “no one is above the law”
    Pelosi “no one is above the law”
    Bull crap so far. The peasants are watching along with the rest of the world. Will they just keep repeating this line and think we actually believe it?
    We know that the Republicans need lies under oath about bj’s to get their justice juices going. A War based on a “pack of lies” torture, undermining our Justice system, outing an undercover agent, just does not get it going for the Republicans.
    Let’s hope a few of the Dems actually mean “no one is above the law”

    Reply

  90. Cyn says:

    In other words, we need to be shamed and steps need taken to insure this country never ventures down this road again.
    If President Obama is intent on moving forward and not looking back, then “never again” should be a part of that promise.
    Excellent post, Mr. Clemons.

    Reply

  91. questions says:

    We posters went round and round on this a few (several?) months ago, I came out for a commission and was laced into. I wonder if you, Steve, will get the same treatment….
    When Obama calls for “looking forward not backward” he’s actually referring to a very strong tradition in the history of thinking about justice and punishment. To be at all just, punishment must be forward looking rather than backward looking. That is, revenge is unacceptable as a motive while deterrence and social stability are acceptable. The future is crucial, the past does not matter. The kind of revenge that gets Romeo and Juliet going, or motivates Kubrick’s (Thackery’s) Barry Lyndon (if I remember it correctly — it’s been years) is not at all in keeping with justice.
    If we’re to have legal proceedings, then the future must still be the motivating cause. We need to know what will happen to any evidence (see the post above dealing with this issue). We need to know what will happen to current and future government workers of all levels and agencies as they start to worry more about their legal situation than anything else. We need to know that the kind of legal proceedings we’d be likely to see would easily hit those lower down who cannot afford good lawyers, and wouldn’t touch the top people who can hide behind endless proceedings. In short, desiring satisfaction from an institution that cannot provide satisfaction is a poor idea.
    The commission idea avoids many many legal pitfalls and governance disasters. It shows that what matters is understanding the nationwide panic that led to the normalization of torture rather than merely punishing any and all who were caught up in our national nightmare. A commission would also be significantly more likely to encourage the telling of stories, and what we need is for every person involved at any level to be able to speak.
    I know Paul has posted on the international issues regarding what we do with torture proceedings and I have thought long and hard about his response. I keep coming back to the kind of legal system we have, the kind of people we’d be dealing with, and I keep concluding that the commission is likely a better starting point than our courts of law. I know that many (including some of my friends) disagree with me. I know that Jonathan Turley is utterly opposed to a commission and wants legal proceedings, and he’s a lawyer and I’m not. Still, given what I know about the history of work on conceptions of justice, a commission seems to be the best starting point. My guess is that one cannot have a truly functioning commission while reserving the right to prosecute those who participate. And so a forward looking commission tasked with understanding in order to prevent would seem to me to be the right way to move forward.

    Reply

  92. Kathleen G says:

    I am just astounded by how many former CIA agents have come out and said “torture” does not work.
    Smackdown of another torture defender (this video is especially worth while.) Matthew Alexander/David Rivkin
    http://psychoanalystsopposewar.org/blog/2008/12/20/smackdown-of-another-torture-defender/
    http://www.newsweek.com/id/195089
    Phillip giraldi
    http://original.antiwar.com/giraldi/2009/04/13/truth-and-reconciliation/
    Ray Mcgovern
    http://www.counterpunch.org/mcgovern04152009.html

    Reply

  93. JamesL says:

    Well stated Steve. US torture is not going away as an issue and will continue to separate Americans from the rest of the world The longer it remains unaddressed, the more serious will be the impact on the US as international distrust and anti-American sentiment grow, and as other nations use the excuse of US torture as permission of their own torture, possibly on Americans. American attitudes toward the Germans in the decades following WWII were disdainful: why had Germans allowed the Holocaust? Now the question is the same for Americans and they’re having trouble figuring it out. That’s pathetic.
    Obama may think he has an emergency on his hands with the economy, but the longer term emergency is what America will do about the misdeeds of its leaders. This can only be solved with a full public airing; the only jury that can be fully effective is the American people.

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  94. Jeany says:

    The historic refusal to engage in torture laid the foundation for
    American exceptionalism. Thus the use of torture, and
    particularly the deception, the institutional self-deception
    revealed in the unfolding of the last administration undermines
    that foundation.
    I liked what Jon Meacham said on GPS today, that the American
    people are grown-ups and can take it and do the right thing. We
    need and deserve to know what happened.

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  95. DonS says:

    Would the output of such a commission be the last word, the legal or PR basis for pursuing indictments, or just what?
    Fact is we have (?) a perfectly adequate system of justice that should be able to deal with the breaches of law that occurred, under the guidance of a special prosecutor.
    That everyone virtually now accepts that torture was designed, authorized and carried out in violaton of law and convention — the “911 changed everything” meme is wearing thin — if there is no legal accoutability then torture is normalized. The ‘other side’ is fighting like hell to normalize their actions, going so far as to have Dick Cheney not only ‘defending’ his actions, but going on the offense, with the Obama administration stuttering and sputtering rejoinders like some school yard name calling.
    So if the current adminstration will not stand up forcefully — verbal separation from past practices is not enough for Cheney/Bush subversion — what does it say about how Obama regards the slowly re-emerging rule of law, not to mention the moral imperative that we citizens deserve to be honored: “not in my name”.
    I understand Obama’s not wanting to pull the trigger on starting a special prosecutor, hence his throwing a bunch of bait out there that will ‘compel’ him to acquiesce to action (I hope). Sad to say we have become such a politically polite, or cowardly, ‘democracy’, that only those tending toward fascism are allowed to speak and act loudly in the name of ‘patriotism’.
    Politicians need cover to do the right thing it seems. And the vast majority of the establishment was complicit in allowing Cheney/Bush license to abuse. Now it is time for those politicians to get past that and to recognize that, however shameful their conduct may have been, the torture program went so far off the rails, that 1)it is qualitatively worse than shameful jingoistic warmongering and 2) the hope of restoring institutional legitimacy can only sought through pointed, painful action.
    Whatever process moves toward legal accountability can’t come to soon.

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  96. Josh Meah says:

    This is right on target.

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  97. mememe says:

    I think it’s really important to get word out about what Elizabeth de la Vega said on Keith Olbermann’s show last week – that if the government appoints a Special Prosecutor and they call a Grand Jury investigation, then all new information will be called classified, and we’ll stop learning about what really happened and about who did what.

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  98. Ben Rosengart says:

    This is a big deal, Steve. I will sign up on that website.
    I’ve also promised to contact my senator, Dianne Feinstein, who’s
    on the Senate intelligence committee. Still thinking about what to
    say to her — maybe the Commission on Accountability website
    will give me some ideas.

    Reply

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