Month: May 2009

G did a comment on ‘The downside of torture’ that needs to be out here in the daylight, so here it is. OB.

What is perhaps most appalling about this is that prosecuting torture has become nothing more than another tawdry political game. Barack Obama is, among other things, not just a Harvard Law graduate but an actual Constitutional scholar. He knows what an appalling clusterfuck the Bush Administration made of the Constitution with its denial of habeas corpus, secret prisons, torture, and all that. He knows what the morally and legally required path must be. But he is rather scrupulously avoiding that path.

Worse, Obama’s administration has in almost all terrorism-related court cases pushed the absurdly counter-Constitutional secrecy policies and claims of authority to defy law at whim of the Bush administration. I am fairly certain that this is not, as some have claimed, out of the desire to preserve those claimed powers for his own use. Rather, I think it is fairly clear that his stated political position of “moving forward” and “not looking back” – i.e. avoiding politically troublesome legal prosecutions of Bush administration criminal acts – absolutely requires that he perpetuate the official legal cover-ups for those activities as long as possible. It is a delaying tactic.

I think Obama has decided that it would be too politically costly to prosecute Bush Administration war crimes at this time. (Sadly, he may be right. Recent polls show that less than half of all Americans support legal investigations of torture and all that, and the ugly reality of such prosecutions would only make them less popular as they proceeded.) But I think Obama also realizes that investigations and prosecutions must happen eventually, both for the good of the nation and for the sake of U.S. standing in the community of nations. So he talks about moving forward and insists that he doesn’t want prosecutions, but he never quite entirely rules out future legal action: Instead, he has officially left that decision it in the hands of his Attorney General (where it belongs, incidentally) – but A.G. Eric Holder will of course not pursue anything until given the go ahead by President Obama.

Meanwhile, the torture memos are released and an al Qaeda operative (Ali al-Marri) is successfully prosecuted in ordinary Federal court without any of the unnecessary and unconstitutional measures introduced by the Bush administration to hold “enemy combatants” indefinitely without trial. (Watch Rachel Maddow’s report on the al-Marri case here. Rachel’s money quote, commenting on the successful prosecution of al-Marri without the Bush system of eternal imprisonment without charges or trial, torture, and so on: “So we end up, at the end of this – after all these years and all of these Constitutional crises one after the other provoked by this system – ending up being able to charge people and bring evidence against them as if we are a normal country under the rule of law.”)

The torture memos and the al-Marri prosecution (along with several other clues) give me the distinct impression that the Obama administration is playing a game of slowly exposing both the brutal reality and the complete ineffectiveness of the Bush administration’s illegal methods, and will keep doing so until the point where the public and the political landscape not only support, but demand investigations and prosecutions.

I don’t know what bothers me more: the manipulative and corrosive character of this political game, or the fact that the American public and U.S. elected officials are so incredibly stupid and venal that such manipulative tactics are probably necessary – and hopefully effective.

Philippe Sands said on ‘Fresh Air’ that Judge Garzon attempted to prosecute a couple of people that the Bush administration had tortured and that the case collapsed because the evidence, being the product of torture, was not admissable in court. Sands said this is one reason Garzon has started a criminal investigation of some of Bush’s team: they (allegedly) not only violated international law, they also made it impossible for other courts to prosecute the objects of the torture.

He also discussed the irony of the fact that Chuckie Taylor was convicted in a US court for crimes he committed in Liberia; that was possible because the crimes he committed were violations of international law. States that have signed such laws have an obligation – not permission, but an obligation – to act on such violations when they have the ability to do so. He also said he was shocked that Jay Bybee still insists that waterboarding was legal; he says Bybee is a federal judge, and US federal courts are highly respected even outside the US, and the honourable thing for Bybee to do would be to admit that in the frantic atmosphere of the time he made a mistake.

In the frantic atmosphere of the time a lot of people neglected to ask necessary questions.

In a series of high-level meetings in 2002, without a single dissent from cabinet members or lawmakers, the United States for the first time officially embraced the brutal methods of interrogation it had always condemned. This extraordinary consensus was possible, an examination by The New York Times shows, largely because no one involved – not the top two C.I.A. officials who were pushing the program, not the senior aides to President George W. Bush, not the leaders of the Senate and House Intelligence Committees – investigated the gruesome origins of the techniques they were approving with little debate.

And the result is…they screwed up.

The top officials [Tenet] briefed did not learn that waterboarding had been prosecuted by the United States in war-crimes trials after World War II and was a well-documented favorite of despotic governments since the Spanish Inquisition; one waterboard used under Pol Pot was even on display at the genocide museum in Cambodia.

Well that’s a distinguished legacy to be part of.