If Obama Doesn't Prosecute Bush's Torture Team, We'll Pay a Big Price Down the Road

By Liliana Segura, AlterNet
Posted on November 28, 2008, Printed on November 28, 2008
http://www.alternet.org/story/108905/

"How did it come about that American military personnel stripped detainees naked, put them in stress positions, used dogs to scare them, put leashes around their necks to humiliate them, hooded them, deprived them of sleep and blasted music at them? Were these actions the result of 'a few bad apples' acting on their own? It would be a lot easier to accept if it were. But that's not the case."

-- Sen. Carl Levin, D-Mich., Chairman of the Senate Armed Services Committee, June 17, 2008

***

It was a short but significant report in Newsweek last week, and it began like this:

Despite the hopes of many human rights advocates, the new Obama Justice Department is not likely to launch major new criminal probes of harsh interrogations and other alleged abuses by the Bush administration. But one idea that has currency among some top Obama advisers is setting up a 9/11-style commission that would investigate counterterrorism policies and make public as many details as possible. "At a minimum, the American people have to be able to see and judge what happened," said one senior adviser, who asked not to be identified for talking about policy matters. The commission would be empowered to order the U.S. intelligence agencies to open their files for review and question senior officials who approved "waterboarding" and other controversial practices.

The article, written by Michael Isikoff, came at the heels of another report by the Associated Press, which quoted a pair of anonymous Obama advisors as saying that there was little-to-no chance that an Obama Justice Department would try to prosecute Bush-era officials for torture. The same report quoted Senate Judiciary Chairman Patrick Leahy, D-Vt., as saying that members of the Bush administration would not face war crimes charges in the United States. "These things are not going to happen."

( Why the hell not? If we can't bring justice to our own officials, who did very definitely commit war crimes, we will never have any moral authority to say a damn word about the dictators and other snakes around the world. Barack, you are wrong on this. Please reconsider!)

Common consensus is that the Bush administration has been the most lawless in U.S. history. From its illegal invasion of Iraq to the corporate-assisted, warrant-less wiretapping of its own constituents, the Bush White House seems never to have held a view of the law from below. And, since long before the election of Barack Obama, a number of groups and individuals have called for accountability, from a vocal network of people calling for impeachment for Bush's illegal and fraudulent invasion of Iraq, to, this summer, the bluntly labeled campaign, Send Karl Rove to Jail.

But if ever there was a stain on the fabric of American democracy that must be deserving of prosecution, it is the dark legacy of torture left by the Bush administration. From Abu Ghraib to Guantanamo to the CIA's "secret sites," proof abounds that the U.S. government engaged in systematic torture that was approved by top government officials. Ironically, a central laboratory for this corrosion of the country's moral and legal code was the very office charged with defending the rule of law: the Department of Justice.

"It is these attorneys -- Alberto Gonzales, John Yoo, James Bybee, David Addington and William Haynes -- who provided the legal basis for much of the torture and abuse that occurred at Guantanamo, Abu Ghraib, and other U.S. detention facilities around the globe," Michael Ratner, president of the Center for Constitutional Rights, writes in the recently published The Trial of Donald Rumsfeld: A Prosecution by Book. In Ratner's view, the prosecution of these attorneys, as well as Bush, Cheney and the rest, is a critical part of not just imposing accountability on those who approved and carried out torture in the name of the American people, but in dismantling a legal framework that could lead to more torture in the future.

'This Was an Assault on the Law Itself'

Members of the legal and human rights community are currently grappling with the question of how to hold the Bush administration accountable for its crimes. In a recent cover story of Harper's Magazine, human rights legal scholar Scott Horton lays out the rationale for pursuing the crimes of the Bush administration. The good news is there is plenty of historical precedent for going after government torturers in the United States. The bad news is that they have been uneven, at best. From an Army captain who was court-martialed for imposing the "water cure" on Filipinos during the Spanish-American War ("He was forced to pay a $50 fine") to Japanese military officials tried for war crimes (including waterboarding) after World War II -- some of whom were sentenced to death, the severity of the sanction has depended on who is meting it out.

Prosecuting the torturers of accused "terrorists" in far-away places may not inspire a call to action by Americans now -- especially when a few token prosecutions of soldiers have taken place (most famously, Abu Ghraib Army Reservists Cpl. Charles Graner and Pfc. Lynndie England). But a policy systematically designed to subvert the law should be intolerable to those who place any kind of faith in American democracy. Horton's article -- parts of which should be required reading -- discusses how, during the Nuremberg trials, "the Americans and Soviets … wanted to prosecute the people who had created the legal framework for the Nazi regime, but British and French leaders objected."

"Consequently, the United States, acting on its own, convened a separate Nuremberg tribunal to try lawyers, judges and legal policymakers," thereby establishing "the principal that policymakers who occurred the mandatory prohibitions of international law against harming prisoners in wartime could be prosecuted as war criminals, no matter how many internal memos they had written to the contrary."

This leads to a critical point: "The key issue that Scott pointed out in his article," Ratner says, "is that this was an assault on the law itself." If legal opinions that sanctioned torture are left untouched, it sets a dangerous precedent. As Ratner recently wrote on his blog, "If laws can be broken with impunity today, they can and will be broken with impunity tomorrow. Not just laws against torture and war crimes, but any and all laws; any and all limits on government."

"The only way to prevent this from happening again," he tells me, "is to have prosecutions that will send a deterrence message" to future administrations.

'We Owe the American People a Reckoning'

How to do this is the most pressing -- and difficult -- question. Horton considers the various forms such prosecutions might take, from the International Criminal Court (too dependent on the support of the United States) to foreign courts (viable, but "true justice cannot be compelled from without"), to domestic courts (unlikely, because prosecuting war crimes are rarely done against those at the top of the chain of command). Ultimately, he settles on a model of the truth-and-reconciliation commissions carried out in South America and South Africa. Although they have had imperfect results in the past -- "In some cases, a bargain was struck under which the truth about past misconduct was divulged in exchange for a pardon" -- the value of the commissions largely lies in the educational benefits a commission might bestow on the public. But beyond that, a "commission plus special prosecutor," as Horton calls it, could be carried out in public, in order to "find the facts, weigh them, and if the facts warrant, make a formal recommendation for the appointment of a prosecutor."

For Ratner, the models that have been suggested thus far don't go far enough. In his view, the only way to restore the rule of law is to pursue criminal investigation and prosecution. "People have been pulling their punches when it comes to seeking full prosecutions," he says, "because of the feeling that is not politically feasible." It may be true in the end, "but unless you demand it, you're not going to get it." Failing to try, he says is "the worst defeatism you can have."

Indeed, given the destruction of the past eight years to the fabric of American democracy, to shy away from torture prosecutions would seem profoundly -- and dangerously -- shortsighted. Obama has stated that as a country, the United States does not torture -- most recently in an interview with 60 Minutes -- and much of the support he gained as a candidate from the legal and human rights community was based on his vocal opposition to the Military Commissions Act. Although his opposition to torture has been unequivocal in tone, Obama has been hesitant to state in solid terms what exactly he would do about the torture that already took place. Responding to the question this summer, from a reporter from the Philadelphia Daily News, Obama responded:

What I would want to do is to have my Justice Department and my attorney general immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.

So this is an area where I would want to exercise judgment -- I would want to find out directly from my attorney general -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important -- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings, and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.

It's hard to imagine the lawlessness of the Bush administration falling short of "exceptional." But regardless, whether Eric Holder, Obama's pick for attorney general, would take this on is questionable. "Everybody has advice for Holder," Slate legal correspondent Dahlia Lithwick recently wrote, "starting with shuttering Guantanamo and repairing detention and interrogation policies; recalibrating the legal limits on information-gathering by intelligence agencies; doing away with provisions of the Patriot Act that encroach on civil liberties; and restoring the integrity and independence of the Office of Legal Counsel, which advises the president on the lawfulness of a proposed action." But Holder has been known to criticize the violations committed by the Bush administration. "We owe the American people a reckoning," he said in a speech in June.

Still, in Horton's opinion, although torture is a federal crime and a federal prosecutor has the power to prosecute it, it is unlikely any U.S. attorney would possess the independence to do so. "Indeed," says Horton, "so many high-level figures at Justice were involved in creating the legal mechanism for torture that the Justice Department has effectively disqualified itself as an investigative vehicle, even under a new administration." Ratner agrees.

So what is a "reckoning"? And where are the consequences?

For Ratner, now is the time to push Obama, hard, on seeking independent prosecutions, "partisan witch hunt" concerns be damned. After all, Obama brings with him enormous moral credibility. Lifting the stain of torture is a project that could -- and should -- transcend partisan politics. "Obama could change this (discussion) as he changed the dialogue on race in this country," suggests Ratner, "with a speech on torture."

"People say that prosecuting torture is 'looking backward,' " says Ratner, "but in my view, prosecutions are looking forward -- looking forward so that this doesn't happen again."

Liliana Segura is an AlterNet staff writer.

I could not agree more; PROSECUTE!

If we have a choice, I don't see it.


(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Fitzgerald Rests Strong Prosecution

David Corn
Thu Feb 8, 4:13 PM ET

The Nation

It was Hail Mary time for Ted Wells, an attorney for I. Lewis "Scooter" Libby, as the prosecution moved toward resting its case in the perjury trial of Vice President Dick Cheney's former chief of staff.

On Thursday, Meet the Press anchor Tim Russert was back on the stand to be cross-examined by Wells. The previous day, Russert had kicked Libby's cover story in the groin. He had disputed Libby's claim that in the days before the leak that outed Valerie Wilson as a CIA officer he (Libby) had learned about her CIA connection not from official sources but from Russert. No way, the newsman said. The Russert call is critical for Libby, who has maintained he never shared official (that is, classified) information about Valerie Wilson with other reporters and only passed along gossip he had picked up from Russert. But on the stand Russert stuck to his version: he didn't say anything to Libby about Wilson's wife during a phone call on July 10 or 11, 2003, because he knew nothing about Wilson's wife until the leak appeared in a July 14 Robert Novak column.

So what was Wells to do?

He started off Wednesday by taking shots at Russert's memory. He made little progress. On Thursday, he tried to undermine Russert's credibility on other fronts. Wells attempted to make an issue of the fact that until Russert appeared as a witness in this trial he had never divulged publicly that he had talked to the FBI about the CIA leak investigation in November 2003. Wasn't Russert's call with the FBI a "newsworthy event?" Wells inquired, hinting that Russert had for years hid part of his involvement in the CIA leak case.

Russert explained that he had not reported the conversation because the FBI agent had asked him to keep it confidential.

Wells then tossed far-fetched theories at the jury.

On the stand, Russert had said that none of his NBC colleagues had told him anything about Wilson's wife. What about David Gregory and Andrea Mitchell? Wells asked. None meant none, Russert noted. But Wells still was holding out the possibility that Gregory received leaked information on Wilson's wife from then-White House press secretary Ari Fleischer and then quickly relayed it to Russert, who shared it with Libby.

It's a thin theory--especially because neither Russert nor Gregory reported any news about Wilson's wife at the time. And the timing of real-world events may undermine the theory. But Wells keeps hammering at this possibility.

To buttress this part of his case, Wells tried to play for the jurors a video clip of Andrea Mitchell saying on CNBC in early October 2003 that she had known about Valerie Wilson's CIA employment prior to the Novak leak. But Mitchell, in two later interviews on Don Imus's radio show (which also aired on MSNBC), said she had misspoken and she retracted the comment.

Wells suggested that Russert and Mitchell had conspired to undo Mitchell's remark so Russert's statements related to the leak case would not be undermined. He asked permission to show all these tapes to the jury. "This is nitpicky at best," Judge Reggie Walton complained. He ruled the tapes could not be played.

Next Wells took another shot at Russert's credibility. He pointed out that during Russert's appearance the previous day he had testified that Libby used the words "hell" and "damn" when he had called Russert in July 2003 to complain about Hardball host Chris Matthews' on-air criticisms of Cheney and Libby. Yet, Wells said, when Russert gave a deposition to special counsel Patrick Fitzgerald in August 2004 about this conversation with Libby he had not referred to these curse words--as if Russert had somehow suspiciously changed his account.

Russert explained that during his deposition he had said that Libby had been "venting" and that word covered the cursing.

Such small stuff did not seem to impress the jurors; many appeared to be unriveted by Wells' questioning of Russert. Finally, Wells played his last card. Was there, he dramatically asked the witness, "bad blood" between Russert (and all of NBC News) and Libby? "No, sir," Russert replied in the quiet tone he had used throughout his testimony. But Wells had evidence to suggest otherwise.

It was another Imus clip. On the morning of October 28, 2005, hours before Fitzgerald was to announce indictments in the CIA leak case, Russert was on the show (via telephone) telling Imus about the mood of anticipation within the Washington press corps and his own NBC News bureau: "It was like Christmas Eve last night. Santa Claus is coming tomorrow. Surprises. What's under the tree?"

Citing this comment, Wells contended that Russert was "elated" that Libby was about to be indicted. No, Russert said, he was referring to the fact that a "big news day" was coming and that no one knew for sure what Fitzgerald would announce. Was Russert equating an indictment of Libby with Christmas "presents under the tree?" Wells asked. No, the television host said. "You looked very happy" in the Imus clip, Wells countered. That was a "still picture," Russert noted.

The cross examination was over

One more swing and a miss for Wells. In the first three weeks of the case, Wells and co-counsel Bill Jeffrey have suggested there have been a Variety Pak of plots against their client: a CIA conspiracy against Libby, a State Department conspiracy against Libby, a White House conspiracy against Libby, and, now, an NBC News conspiracy against Libby. But they have introduced no evidence to back up any of this.

Wells' attempt to transform Russert's Christmas comment into proof that Russert and NBC News were bent on ruining Libby was typical. It was silly. But Wells is merely acting as a defense attorney should. Pull on any thread you can. Raise any matter that might sow confusion or doubt among the jurors. Nevertheless, he failed to undercut Russert, Fitzgerald's final witness.

The prosecution ended strongly. Fitzgerald has presented a parade of witnesses who have contradicted Libby on the key points: what he had known about Valerie Wilson and what he had told journalists. The defense is expected to call its first witnesses on Monday. The lineup will probably include several reporters who spoke to Libby before the CIA leak happened and who will testify that he said nothing to them about Valerie Wilson's wife. But Wells might need more than that--and more than word games and hints of plots--to beat back Fitzgerald.


DON"T FORGET ABOUT HUBRIS: THE INSIDE STORY OF SPIN, SCANDAL, AND THE SELLING OF THE IRAQ WAR, the best-selling book by David Corn and Michael Isikoff. "The selling of Bush's Iraq debacle is one of the most important--and appalling--stories of the last half-century, and Michael Isikoff and David Corn have reported the hell out of it."

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)

The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.