Setting a Precedent
OK- so Christopher Hitchens, Spencer Ackerman, Emily Bazelon and Scott Horton - four of the most astute and fearless critics of the abuses of power in America, basically believe it is far-fetched to expect that those in the Bush Administration who ordered the United States government to institute a regime of torture, will be held criminally liable. In secret dungeons, U.S.-held prisoners were waterboarded, stripped naked, kept chained and near frozen, bombarded with unbearable sounds, deprived of daylight, kept isolated from human contact for months, fed barely enough to live on, beaten, confined in dog cages, and deliberately mistreated in other carefully-regulated ways under a policy set in place by the highest-ranking officials of our country. An unknown number died. A larger unknown number simply disappeared. We know that the Red Cross -- an independent non-partisan organization - warned the President and other top officials that at least fourteen of the individuals currently held in Guantanamo -- people who the Red Cross was able to interview -- were tortured. Not maybe. Definitely. The Red Cross also warned the President that he and others in his administration were in danger of being held liable for war crimes.
So, here's the next question. Would it be fair then to say that assuming there will be no war crimes prosecutions, nor any other form of serious personal accountability, Vice President Cheney, from whose office most of these policies appear to have sprung, will be seen by history as not just the most powerful vice president in America, but, also the most successful? Does this also mean that the example he set, of secrecy, insularity, unchecked power, extra-legal methods in the name of national security, and twisting the law into a political instrument, will continue? What's to stop it?
PS- Since we're on the subject of the vice presidency - what do you think the chances are that either Sarah Palin or Joe Biden will continue to rule in Cheney's "Dark Side" tradition? Will they be occupying bunkers in "undisclosed locations," traveling with chem suits and masks on the back seat, and storing ultra-classified documents in man-sized safes? What will the power-balance be like with the president? Feel free to answer before or after this week's debate, or both!
Jane (et al) --
Thanks for the thoughtful posts. I want to add one other element to this discussion. For various reasons, I share the collective pessimism about the prospects for criminal liability in the U.S. But what about civil liability? Civil cases have multiple goals: compensation for the victims, of course, but also clear statements from courts that the challenged conduct -- in this case, torture, forced disappearance, prolonged arbitrary detention, etc. -- was illegal. Getting a federal court to state definitively that human beings were illegally tortured as a result of official U.S. policy would be a powerful form of accountability, even if the perpetrators escaped criminal punishment.
Remarkably, every single civil case filed against current and former U.S. officials for their roles in the torture regime has been dismissed immediately -- without any judicial investigation of the legal and factual claims in those cases. In each case, the court has ruled either that the government officials were "immune" from suit, or that the case could not be litigated without exposing "state secrets." (Many of these dismissals are being appealed, of course.) This is a dismal judicial record. But might it be reversible, perhaps with an assist from Congress?
Part of restoring the rule of law in the next administration should include removing these technical barriers to civil liability, and beginning the task of providing compensation to victims. This might be more practicable than the criminal prosecution of David Addington -- but it might achieve some of the benefits of accountability that Scott outlines in his post, without the dangers. We need to get a court -- any court -- to declare unequivocally that the conduct of high government officials violated the Constitution and international law. Fred Korematsu waited 40 years for his vindication, we can't afford to wait that long this time.
September 30, 2008 11:51 AM | Reply | Permalink
Ultimately, we voters determine what is done when an elected official abuses his office. In this case, back in 2004 to our eternal shame, we voters decided that we approved of that conduct.
The financial crisis we now face, which will almost certainly develop into a major recession, will be one of the punishments we voters will face. But, any further major terrorist attacks against our country, by Middle Easterners, would be another punishment. Another punishment is the $4 per gallon gasoline price.
It will take a lot more punishment for our voters before they finally alter their behavior, if that is even possible. Just consider that almmost half of our voters seem ready to repeat the malfeasance by voting for McCain and Palin in November. As voters we could well be characterized as habitual criminals.
September 30, 2008 12:04 PM | Reply | Permalink
HI Jane,
I'm currently reading your fascinating and damning book. You've done us all a great service by researching and writing it.
My expectation is that even if Obama wins he won't push for criminal charges against Bush, Cheney, Addington, Yoo, etc because he will want to "heal" the country. I believe this to be the wrong position to take as Clinton did the same thing to old man Bush in 1992, as often pointed out by Robert Parry. This lead to continued Republican dominance and didn't sully their brand. As a result they were able to take control of Congress soon after Clinton was elected (was it 94?). I'm really hoping that doesn't happen for I would like to see those criminals prosecuted and severely punished. These neocon criminals must be wiped off the face off the globe for they are responsible for the deaths of more than 1 million Iraqis and caused 3-4 million refugees to flee, which are Holocaust-type numbers.
October 1, 2008 1:12 AM | Reply | Permalink
Is it really, as Jane writes, "far-fetched to expect that those in the Bush Administration who ordered the United States government to institute a regime of torture, will be held criminally liable"?
I'm not so sure. For one thing, it's hard for me to see how anyone who actually reads "The Dark Side" can simply close the book with a pessimistic shrug, and an "Oh well . . ." response. The revolting story Jane has detailed cries out for accountability.
But how to keep them from getting away with it?
Last spring I met with Swiss Senator Dick Marty, and put this question to him.
Marty was the lead investigator for the Council of Europe's probe (mentioned in Jane's book)of the torture flights in and through Europe. His work was an early landmark in the anti-torture struggle. His reports are now in a book,"CIA above the law? Secret detentions and unlawful inter-state transfers of detainees in Europe," described here: http://book.coe.int/EN/ficheouvrage.php?PAGEID=36&lang=EN&produit_aliasid=2323
Marty's reply to my question about how to stop impunity was simple but sobering: "Patience and determination."
That is, expect the accountability effort to take years, probably more than one administration. Don't give up.
Marty added one more piece of counsel: "Activate civil society." Government won't do this hard work for us. It will only respond when the cumulative moral, legal and political momentum make continued inaction impossible.
Let's get busy.
October 1, 2008 11:03 AM | Reply | Permalink
Ms Mayer,
You say: But, if top officials of the Bush Administration who were acting in what they believed to be the best interests of the country's security....
I think that you and others are leaving out part of the context.
Consider that the attacks (9/11) took place about eight months into Bush's first term. I believe that he and Cheney feared (among other things) that his presidency could be ruined, if the public were to blame him (for not being vigilant etc) and if there were to be another attack.
This fear illuminates much, I believe. I think it gives one a new understanding of why they wished to attack Iraq so quickly (it is not just that they had a reason to attack Iraq, but they were determined to do it as quickly as possible) It also illuminates their insistence on torture; they wanted to know about any impending attacks/plans as quickly as possible, and they believed that these methods have at least the advantage of speed, if not of quality or legality.
I do NOT believe it is possible soundly to understand the Iraq invasion if you take seriously the publicly braodcast reasons: WMD etc (My favorite is the portable poison vans, traveling about Iraqi highways and byways: imagine: Hey Abdullah, don't step on the brakes if the vats are uncovered! And imagine: Saddam allowing such vans to travel about! Of course, Saddam is just the fella who would allow that, and not wonder just who is doing the driving and what the driver's itinerary is!)
Folks, get serious. Even if you wish to believe that George has a few bricks missing, Dick doesn't.
And I wish NOT to be understood as asserting that George & Dick had only "personal" reasons for the invasion/torture. After all, a failed presidency (one branch of the federal government) is not a trivial matter, and preventing an attack is a praiseworthy motive.
& Iraq had to be attacked, folks. None of the 19 were from Afganistan; and the mission was aided and abetted by monies from around the Middle East, and recruitment was being done by various characters, again throughout the Middle East. It was imperative to show the Middle East that this was intolerable. And who better to invade, than Iraq? The boycott was not a general success, two thirds of the country was quarantined in some way or other, and he didn't have a friend (certainly not Iran - remember the eight year war; and certainly not Kuwait). He was the perfect target, and he had brought it upon himself. (Had Saddam not invaded Iran, and not invaded Kuwait, George and Dick would have had a quandary, indeed.)
Of course, since they had no casus belli against Iraq (only, so to speak, against the Middle East/Ummah) they chose to lie. This was, in my view, a terrible idea. I believe they should have clearly stated why they were determined to do what they did.
Oh well.
October 1, 2008 1:58 PM | Reply | Permalink