For those who have been paying close attention, or really just about any attention at all, there is already considerable evidence of Bush Administration crimes. Indeed, there is little doubt that a serious investigation will turn up ample evidence of criminal behavior on the part of all or most of the senior Bush Administration figures.
Things have gotten to the point that no one, outside of a few partisans, seriously doubts this, and the issue has become not so much whether enough evidence of criminal behavior exists as whether a reckoning is necessary or advisable. Oh, wait, I forgot one important proviso: You know that the Bush Asministration was involved in criminal behavior so long as you do not get all your news from our wonderful ‘free press’. From Harper’s:
For two years, journalists in Washington have pressed to secure a copy of a confidential report by the International Committee of the Red Cross on what went on in the CIA’s black sites. The report was compiled based on interviews conducted with fourteen former black site prisoners, each of whom was held in isolation and interviewed at length by the Red Cross. The scoop finally went to Mark Danner, a leading journalist covering the topic. The interviews revealed a compelling, virtually identical series of accounts of torture to which the prisoners were subjected.But how did the mainstream media react? A good example came from the Washington Post. In a front-page article, the Post places the word “torture” in scare quotes at each appearance. And it then offers this astonishing headlined conclusion: “Secret Report Implies That U.S. Violated International Law.”
Need I add that the report stated as fact such pieces of information as:
In a secret report last year, the Red Cross found evidence of the CIA using torture on prisoners that would make the Bush administration guilty of war crimes…
The Red Cross determined the culpability of the Bush administration after interviewing prisoners at Guantanamo Bay, according to the article…
Prisoner Abu Zubaydahwho said he had been waterboarded, “slammed against the walls” and confined in boxes “so small he said he had to double up his limbs in the fetal position.”
Note that the ‘secret report’ mentioned above is the report that was finally released this month.
This derivitive story of the media’s handling of torture, war crimes and (more generally) Bush Administration crimes just gets better and better (or worse and worse, depending on your perspective). The Harper’s article continues:
But the behavior of the New York Times was still more mystifying. Although it carried an extended excerpt of the New York Review of Books piece on its Sunday op-ed pages, the Times failed to report the story as news. This is a bizarre editorial judgment, and it made me think back to the half-dozen Times reporters who have pressed me for ideas for how to get hold of the Red Cross report over the last two years. In an interview yesterday with C-SPAN’s Washington Journal, Danner looked at the media’s failures in dealing with the torture issue:
One can continue to talk about torture is in the eye of the beholder, etc etc, but frankly, nobody of any legal reputation believes that… I am frustrated by the practices of the press. They are interfering with a clear debate…
I think the definitional question is extremely important, and as I mentioned a moment ago, I think it’s extremely important to get by it already. We’re debilitated in that by some degree by the practices of the American press, frankly, which is that as long as the president or people in power continue to cling to a definition that they assert is the truth — as President Bush did when it came to torture, he said repeatedly the United States does not torture — the press feels obliged to report that and consider the matter as a question of debate.
The extended excerpt mentioned above is here. Coincidentally, FOARP brought up this issue on this blog just the other day. Great minds, thinking alike, and all that, I suppose.
At this point, the war crimes debate is all but finished. Indeed, six months ago it was fairly clear. From ABC News, not exactly known as a hotbed of radicals, Jake Tapper reported in July 2008:
Writing the forward to a Physicians for Human Rights study of 11 former detainees who were apparently tortured by US military personnel and later released, Army Maj. General Antonio Taguba (Ret.) writes that “there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
But this post is not about war crimes so much as it is about game theory. War crimes are just one of the crimes for which the Bush Administration must be brought to trial. In addition, we have illegal wiretapping, torture outside war (remember Jose Padilla?), illegal firing of DOJ attorneys, illegal hiring practices in government agencies, and really the list goes on and on. I am not able to provide detailed information on all of these crimes, but Slate has a handy chart.
Bush Administration crimes must be brought to account because the perpetrators have created (or identified) a serious weakness in our political system, and that weakness will certainly be exploited in the future, unless we step in and strongly assert that these crimes are unacceptable and impermissible, by levying significant punishment on the wrongdoers now.
The dangers to our Constitution are just too serious to ignore. I can certainly understand those who would prefer to just put the whole thing behind us. But we cannot. Someone will try to run the same plays in the future unless we act now.
It is instructive to quickly go through the whole story. After taking office, (and ignoring the issues involved in gaining office in the first place), Karl Rove declared that he planned to usher in a new era of a ‘permanent Republican majority‘. And that was fine, until we all realized that he planned to do that by illegally gaming the system. Prominent Democratic figures were brought to trial and incarcerated on trumped up charges in the South. In the North, in states such as Ohio, entire election systems were compromised in an attempt to secure elections for the GOP. All over the country, politically-motivated prosecutions and investigations were implemented, all in service of the goal of a ‘permanent Republican majority’.
These acts should be seen for what they were; a full-frontal attack on the US system of government, and they must be investigated and prosecuted as such. This was outright war on the people, and the people will have their due, I assure all of you. The only question is precisely how and when.
I am not staking out any particularly radical territory here. The drumbeat for investigation and prosecutions has been going on for some time, and will only grow louder. However I repeat that focusing only on war crimes is somewhat of an error. To do so is to miss the true goal of the perpetrators, and has the additional tactical weakness of precluding (or at least overshadowing) criminal investigations that might be easier to prove and convict on. The goal must be for many if not most of the ‘leading lights’ in the Bush Administration to be convicted of (some) crimes and jailed for significant periods of time.
My arguments can be summed up nicely by a commenter called ‘Nonny Mouse’, even though she is focused mainly or purely on war crimes:
For if we do nothing, if we protect those accused of war crimes from investigation out of a misguided, even perverse ‘respect’ for the offices these individuals held, if we allow those who have abused the power of their office in order to commit war crimes to escape from being judged, claiming immunity for reasons of exigent circumstances, we establish a precedent. It isn’t enough to remember, it is necessary to also act, if we are to prevent history from repeating itself. The Dick Cheneys and Donald Rumsfelds and George Bushes will return, again and again, with different names, and different faces, but the same lust for violence and disregard for the rule of law that should be enforced to protect us all from crimes against humanity, and it will be those of us who established the precedent of bestowing immunity on the perpetrators of today’s war crimes from their acts who will be responsible for tomorrow’s crimes against humanity.
I don’t care about John Yoo’s bar license, or his sinecure at Berkley. Such a debate is a complete distraction, and wastes energy and resources that should be placed on investigating his superiors. What is critical is that his efforts to protect his political masters from the consequences of their crimes must fail. Whether he himself receives any punishment is irrelevant. Punishing the Yoos and other enablers, without more, is worthless. When the second attack on the US system of government comes, new enablers will be easy to find. I am even willing to forgo prosecution of the CIA, even though many crimes were committed by CIA personnel, because they were acting at the behest of the Bush Administration, because those who bear more culpability can be purged internally or secretly, and finally because, as a practical matter, we need to gather evidence, and obviously the CIA would be very helpful in that respect. There will always be people clueless of history and overly optimistic about their own capabilities ready to serve, whether it be ‘lawyers’ like Yoo or gung-ho or twisted CIA staff. Remember, if the second attempt is successful, there will be many, many spoils for the victors, and so there must be strong disincentives to deter the attempt.
So, having made my point, let me now be so bold as to attempt to engage President Obama and Eric Holder:
Gentlemen:
I realize you have a lot on your plate at present. I believe the American people will give you time. However, you will be giving us our special prosecutor with an unfettered mandate to investigate and prosecute. The only question is how much political capital you and your party will lose prior to doing so.
For now, you may buy yourself some time by asking the Congress to pass a law preventing the statute of limitations from running on any of the Bush Administration’s crimes.
This is not about you. This is not about politics at all, really. This is about protecting and honoring our Constitution. We will have our due on this matter. Your job is to give us our prosecutor and get out of the way.
At the moment the Advocate General here in the UK is investigating whether the Binyam Mohammed case should be referred to the Director for Public Prosecutions, and people are pushing for a judicial inquiry. Direct evidence of the involvement of high-level officials has not yet been found, but it seems reasonable that if there was any, then it will come out once the MI5 men who colluded in Binyam Mohammed’s torture are put under the microscope. If all else fails, there is still the European Court of Human Rights – Binyam Mohammed can claim locus standi under right of residence and being a victim of state action, and there are no derogations under Art. 3 of the ECHR – the prohibition of torture, which was incorporated into UK law by statute in 1998.
I have to say though, I was deeply disappointed by a BBC interview with the current foreign minister, David Milliband, who was allowed to drone on about how this government “does not condone torture” without being pressed to ask whether anyone in the government actually knew that torture was being carried out by the United States. Of course, he denied any knowledge of involvement. My great fear is that this will be swept out of public view by the current economic crisis, and then buried and forgotten. It must not be.
Really, as someone who was willing to speak up for the war on terror, and as someone who supports a continued aggressive engagement with terrorism, it was a true shock to realise what was being done in our name. Yes, in the past, especially during the troubles in Northern Ireland, there were cases like ‘The killings on the rock’, or the collusion cases, but these always seemed to be the result of local decisions and not those coming from the government as a whole. Now we have evidence that men were tortured using techniques designed not to extract information but to extract false confessions, in circumstances which would require higher approval, and which very well may have led to disastrous decisions being made on incorrect information. Methods of brutality which render Britain and America’s names mud, and the airy pronunciamentos of our combined leadership as to their respect for life and liberty so much meaningless twaddle.
I couldn’t agree more with your assessment. This is about precedent. This could happen again if it is not responsibly and legally addressed. The problem I see is that some decisions may eventually get to the Supremes, and with the current alignment I am afraid that things might go horribly wrong once it gets there. The Bush/Cheney team had some serious forethought working on this one. Timing is all-important here, and I’d say that Halder and the Justice folks are on to this one. It looks as if Ginsberg might be leaving, though her replacement would not change the numbers. This might take awhile, though I must believe that it is moving in the proper legal direction. That’s the reason Cheney’s coming out of his hole. If his intention is to scare everyone, as he has done so effectively in the past, then he is sorely mistaken. His harangues have exposed him even more. Very, very odd man. Criminal, too. (How long ago do you think he shredded his passport?)
But I also believe that many of the lower tier personal need to be vigorously prosecuted, especially those who greased the legal skids. There are new Yoos in the wings, and they too need to get the message that the work of dismantling the Constitution has serious penalties. Being a stooge, albeit a smart one, is still being a stooge.
Like I said I don’t think you can properly dissuade future Yoos. Arrogant and ignorant by nature. Yoo, by the way, was the fool who was intended to be left holding the bag. He has nothing to turn over, even if he wanted to. Which he does not, as he appears to be a hardcore ideologue…
FOARP, yes you are right, and that is another danger, a lesser danger that the US faces. If charges were brought in the ICC against senior US officials… That would really be a precedent. I was going to add that in but forgot as I was finishing this one up.
I have to also say that the initial signs are mixed. It was the current US administration that re-iterated the threat of reduced co-operation with Britain if the Court of Appeal released evidence indicating the nature of Binyam Mohammed’s torture, although this has leaked anyway, and we now know that he was repeatedly subjected to the most horrendous tortures, including the slicing open of sensitive body areas. Make no mistake, Binyam Mohammed may well have been linked to terrorism, but the fact that evidence against him may have been extracted through torture makes trial based on that evidence impossible. Rather than making us safe, torture has rendered the administration of justice against terrorist suspects impossible.
UK officials are subject to the E Ct HR, in fact it is the current government which incorporated the ECHR into UK law, but unfortunately there is no corresponding liability for the US government, although I doubt that any of those responsible in the US government will be travelling to an ICC jurisdiction country any time soon, or at least not to one which doesn’t have a bi-lateral agreement with the US. The case of Augusto Pinochet’s trial set a good precedent, even if it was unsuccessful.
As in many cases, it will probably be the attempted cover-up, particularly the destruction of video tapes and sound recordings, which proves key.
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