Last week I made the argument that the United States must investigate and charge Bush Administration figures for the crimes we pretty much already know, and the ones we don’t, after complete and open investigations.
The reasoning behind my analysis is simple: Game theory teaches us that a new would-be emperor and his crew of mighty maties will quickly come again to attempt to usurp our system of government. They will try without fear, because their precursors were not punished in any meaningful way. They will use the same tools and methods that the Bush Administration used; subverting elections systems, security systems, and legal structures. And the second wave will destroy our political system forever, I would wager.
I hope I didn’t just oversimplify that. If anyone thinks I have it wrong, please do speak up. I don’t want to be like Megan McArdle getting smacked down by the Economics of Contempt or nothing. A fine blog, that one.
Now obviously today some of you, all eleven, are not exactly quite as sold on the US system as might have been expected just a few years ago. You may count me among those who see major issues with the US system at this point, but I still believe we can bandage things together with some smart thinking and a lot of change. So I wouldn’t blame you at this point, but I would ask if anyone is honestly willing to go so far as to argue for the alternative. No one benefits if the US political system ‘evolves’ in that direction except for the cabal and their rich friends.
FOARP, in a comment here, is already out in front on this issue, as usual, and I failed to mention this in the past post, which is regrettable, given today’s headlines:
Bush Torture Lawyers Targeted in Criminal Probe
Spain may open torture probe of six Bush officials
That is Spain, which is different action than the one in the UK, which (so far) doesn’t directly involve US officials.
In the UK, we have headlines such as:
MI5 investigation: ‘It’s unprecedented in modern times to get MI5 officers investigated by the police’
Remember I was just talking about different security forces having limits on their power the other day? Here is another example.
Let me put any questions to rest: I do not want a legal precedent of international courts seizing and trying US officials. That would be a horrible result, and would lead in so many bad directions. But this could well happen if the US does not act quickly. The only way to avoid these trials is to hold your own. And that is clearly the preferred solution, although the analysis is somewhat complicated.
Again, I believe the decision for President Obama will be quite simple, once the time approaches. He will be under such pressure that he will have little choice. Go back to the day after the election, and see how many people are talking about the same topic. I get 7 million hits within the past three months. Obama has been quite cool to the idea, as you would expect. It will cause him to incur some political backlash, and it will also increase however marginally his chances of being investigated in turn.
However, at its root the Republican failure is a failure to understand game theory. Obama surely knows that he will be attacked and even investigated the very moment that the GOP re-takes power, no matter what he does now. So he has every incentive to move aggressively. At the same time, without external pressures Obama will likely not act, so it is up to all of use to demand investigations.
Let’s go to D-Day for the analysis:
I would call this a big deal. As the report notes, [Spanish Prosecutor] Garzon indicted Augusto Pinochet, which led to his arrest and extradition. This would not immediately lead to arrest and trial, but it would certainly confine the six officials to the United States and increase the pressure for stateside investigations. Spanish courts have “universal jurisdiction” over human rights abuses, under a 1985 law, particularly if they can be linked to Spain. [The six are]
………………….
- former Attorney General Alberto Gonzales
- John Yoo, the Justice Department attorney who authored the infamous “torture memo”
- Jay Bybee, Yoo’s superior at the Office of Legal Counsel, also involved in the creation of torture memos
- David Addington, Dick Cheney’s chief of staff and legal adviser
- Douglas Feith, the former undersecretary of defense for policy
- William Haynes, the legal counsel at the DoD
…………………..
The amount of material connecting these six to the creation, authorization and direction of state-sanctioned illegal torture, based on perverse and discredited reasoning, is voluminous, and given the record of Garzon, I would imagine this will lead to arrest warrants.
Inevitablity, people, that is the meme. That and a special prosecutor with sufficient power and a broad mandate.
The Nation has a nice primer on what Obama and Holder have said on the issue. Choice take-aways:
In April Obama said that if elected, he would have his attorney general initiate a prompt review of Bush-era action to distinguish between possible “genuine crimes” and “really bad policies.”“If crimes have been committed, they should be investigated,” Obama told the Philadelphia Daily News. He added, however, 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.”
Obama’s nominee for attorney general, Eric Holder, speaking to the American Constitution Society in June, described Bush administration actions in terms that sound a whole lot more like “genuine crimes” than like “really bad policies”:
“Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution…. We owe the American people a reckoning.”
[The Nation article also quotes a distinguished jurist, Jordan Paust, a former captain in the United States Army JAG Corps and member of the faculty at the Judge Advocate General's School]:
“Under the US Constitution, the president is expressly and unavoidably bound to faithfully execute the laws.” The 1949 Geneva Conventions “expressly and unavoidably requires that all parties search for perpetrators of grave breaches of the treaty” and bring them before their own courts for “effective penal sanctions” or, if they prefer, “hand such persons over for trial to another High Contracting Party.”
I have nothing to add to that.
The attempts made to go after Henry Kissinger for his alleged involvement in assassinations in Chile, Argentina and other parts of Southern/Central America are also worth mentioning. There’s no hope of him ever giving a deposition on the issue, but it has kept him on his toes.
Something else which needs to be emphasised is what an absolute cop-out any kind of ‘truth and reconciliation commission’-style granting of immunity or reduced sentences in return for confessions would be. Firstly because the events being talked about did not happen to some now-roundly condemned regime decades ago, as was the case in South Africa, and secondly because, in a large part we already have their confessions. We already have memos showing the approval of torture techniques such as sleep-deprivation, stress positions, simulated drowning, and prolonged standing by Donald Rumsfeld, we already have the enabling opinions grated by John Yoo and Addington, we already have evidence of Dick Cheney’s knowledge of these techniques – they have nothing to give.
In the case of the British government, as of yet there is no evidence of direct government involvement – although it is hard to imagine how MI5 agents could have acted in this capacity without government knowledge. Knowledge of torture as the object of rendition flights (which would also infringe Art. 3 ECHR) has been shown, although a case is yet to be brought against the British government for this.
I had momentarily forgotten about Kissinger. Yes, there has been some pushback, but only some (he is still on tv from time to time, for instance).
These crimes are fresh in all of our minds, and people are not happy about them.
I agree with you about some kind of commission. Forget it, if it prevents or limits later charges or investigations.