Ripple Effect
Former Office of Legal Counsel head Jack Goldsmith declined to be interviewed when I called him a little while back for this story, but I'm glad to see he's weighed in on the subject anyway. This is as good a time as any to tackle head-on (as Scott has done here ) one of the most troublesome aspects of the Bush legacy.
To my mind, arguably the most pernicious thing that the Bush administration (and Dick Cheney and David Addington in particular) did was systematically exploit what were once useful gray areas in the law and institutions of government, a tactic that would inevitably force Bush's successor--regardless of who it was--to make decisions that have no possible good outcome. Guantanamo is the best example of this, but the OLC is a close second. OLC opinions (which, for those not deeply in the weeds on these issues, basically tell the president whether what he/she wants to do is legal or not) have indeed functioned as a "golden shield" in the way that Mukasey and Goldsmith describe, and in a better world this wouldn't be a bad thing--it's good for the White House to regularly assess the constitutionality of its actions. But this de facto authority is based on the assumption that the OLC is itself acting in good faith (as it did under previous presidents), rather than attempting to adjust the law to fit the president's intentions (as OLC counsel John Yoo and others did under Bush).
This complicates the prospect of prosecution: if you attempt to prosecute someone for crimes committed under the aegis of the OLC memos, however shoddy they may be, you risk stripping President Obama and his successors of a tool that I, for one, would like them to have. Cheney et al. have effectively left the courts and the next White House and Attorney General with the choice of embracing their unconstitutionally monarchical view of the executive or lurching instead toward an excessively restricted one. It is a terrible set of options.
My guess is that the implications of that decision make the chances of prosecuting crimes covered by the OLC memos a lot less likely than simply declassifying and retracting the opinions--although, as Scott argues , the whole issue can be skirted if prosecutors can demonstrate that crimes were committed before the memos justifying them were inked. When I asked a veteran of the (pre-torture-memo-era) OLC about this last month, he suggested that one mitigating circumstance would be if evidence emerged demonstrating that Bush's OLC lawyers were fully aware that they were contorting the law at the time they were doing it. This is yet another reason to focus, as Anne says , on preserving every shred of e-mail evidence from the Bush White House that has not been destroyed already.
In his op-ed, Goldsmith argues that a sweeping investigation of the sort we are discussing here would be needlessly destructive and that the "best way for the Obama administration to establish a record of what happened under President Bush without further debilitating our national security system is simply to let the many current investigations run their course." He also writes that the "investigations and public recriminations of the past few years" have, among other things, "spooked the intelligence community." This is of a piece with one of the arguments in his memoir of his 2003-2004 stint in the Bush OLC: that the investigations of and legal limitations placed upon the intelligence community in the post-Watergate era made agency personnel risk-averse to the detriment of national security.
This is a reasonable argument against prosecuting CIA personnel--who, by many accounts, have long expected to eventually be thrown under the bus by Bush or his successor--on torture charges (and for the record, I'm very much in favor of letting the existing investigations run their course). It is not, I don't think, a reasonable argument against either an investigation or prosecution of top administration officials. If the facts that have come to light to date are any indication, the rank-and-file intelligence personnel are likely to come off pretty well in a thorough investigation of the post-9/11 period. And the specter of the '70s led some officials--at the FBI in particular--to balk at making use of the new leeway on torture they were given in 2002. The bottom line is that the Bush administration, not whatever investigators are trailing in its wake, damaged our nation's intelligence apparatus in much the same way as it damaged the military, the Justice Department and the rule of law. Our paramount concern is finding out what happened, marginalizing the people who gave the orders and instituting measures that keep these things from happening again, and this is a process that needs to happen as much in the open as possible. The solution is not to tread lightly so as to keep CIA officials' attorney bills at a minimum. It is to address the failures of leadership that forced them to hire lawyers in the first place.
But while I disagree with Goldsmith, I do think that his concerns--regardless of the degree of self-interest they may reflect--are worth keeping in mind. The Church Committee investigation and the subsequent measures that tightened the reins on the intelligence community were necessary, but they also had unintended consequences. One of them was inadvertently politicizing a crucial element of national security by complicating the intelligence community's relationship with Democrats and liberals, who were perceived for most of the past three decades as innately hostile or insensitive to the concerns of the agencies.
These unintended consequences are part of why I'm still cool to the idea of a prosecutorial investigation. Even if it is possible, transforming a fact-finding exercise into a legal battle royale threatens to produce a ripple effect that could easily outweigh in the long run whatever benefit there is to sending Dick Cheney to jail for a few months. I'm not saying the latter isn't a worthwhile goal, but anyone who believes in pursuing it needs to take a clear-eyed look at the tradeoffs it entails.
Please! If the OLC says white is black doesn't make it so. Bad opinion is bad opinion, bad lawyers are still bad lawyers. Why try to justify an ideologue issuing ideological opinions; good god!
I suspect most if not all the people who committed these acts,before, during and after OLC opinions were issued, went to college, many to grad school. Maybe their history, philosophy, religion or ethics courses missed the bit about war crime tribunals after WWII, but my poor high school and state college sure didn't. Nor did my basic training in UCMJ during basic training. Is CIA ethics training a contradiction in terms; how about asking the likes of Valerie Plame or other agents what their training entailed.
Bejibbuz, give me a break
November 26, 2008 7:07 PM | Reply | Permalink
Bushie,
You are exactly right in pointing out that CIA ethics is no contradiction in terms. Please see this truly outstanding article:
http://www.nytimes.com/2006/01/28/politics/28ethics.html?_r=1
also, note that Duane Clarridge, Iran/Contra felon, claims that spying is inherently unethical.
That is certainly something to ponder- but not for the reason Clarridge thinks.
November 26, 2008 7:24 PM | Reply | Permalink
I disagree very strongly with one of your premises: That the Church Committee shackled the CIA to an "innately hostile" set of restrictions.
On the contrary, the structures that Committee put into place kept the spy agencies, and America itself, from going completely off the rails during Iran/Contra- and, I am sure, forestalled numerous other criminal schemes and just plain bad, unlawful ideas that Administrations regularly hatch.
And Mr. Goldsmith is simply not ingenuous when he talks of what has "spooked the intelligence community." The post-Watergate restrictions should have liberated our spy agencies from the whims of Executives who put themselves above the law and who threby harm our national security by misusing their resources. It was Bush and Cheney whose innate hostility to the CIA led to disregarded warnings and degraded intelligence.
The epitaph of the CIA has been written precisely because the lessons of Watergate were disregarded- not because, as Mr. Goldsmith pretends,those lessons were wrong.
November 26, 2008 7:09 PM | Reply | Permalink
Sigh... are you all aware of the comments and the larger discussion going on around you?
Because we'd really like you all to interact with us. The point isn't for us to watch you guys talk to each other as if it's a lecture!
And, also... I want to know why we don't bring the ICC into this.
November 26, 2008 7:51 PM | Reply | Permalink
False dichotomy: "the choice of embracing their unconstitutionally monarchical view of the executive or lurching instead toward an excessively restricted one"
"We were only following orders" went out of fashion 40 years ago. "We were only following corrupt legal advice to justify our corrupt behavior" should never be allowed to be in style.
It likely IS more complicated.
November 26, 2008 8:03 PM | Reply | Permalink
Besides the fact that some of the members of the Office of Legal Counsel got their degrees from Bobby Jones University, I have often felt that these attorneys got their conclusions written at the top of their memos asking for legal opinions. Cheney and Rummy came from the Nixon Administration.They never thought that Nixon withheld anything important, they thought that Nixon did not withhold enough. They never thought that an enemies list of a couple hundred was illegal or immoral, in fact they called for an enemies list that includes, as of now, one million people, who should not have the right to fly in an airplane. They never thought that Nixon broke any law, they believed that the President--assuming he was of the right party--was the law. Until that Gonzales memo surfaced four or five years ago, I had never witnessed a writing by an attorney or anyone involved in government positing that that the terms of the Geneva Convention did not apply anymore. If something isn't done about past indiscretions (or felonies might be the more proper term)it will be assumed that any attorney working for the White House, or DOJ, or any office in the Federal Government can make up his or her own laws. What if a memo issued saying the 14th Amendment to the US Constitution has no force because it was passed with the aid of pro forma Confederate States? Are there two sides to this issue? What if a memo posited that the Bill of Rights does not apply to state action? Are there two sides to that issue? I am getting way to heated about this. Thirty five years ago, as a law student, I never would have seen this coming. That the Executive Branch could just make up the law as it goes along.
November 26, 2008 8:06 PM | Reply | Permalink
Charles Homans writes, in part:
"Cheney et al. have effectively left the courts and the next White House and Attorney General with the choice of embracing their unconstitutionally monarchical view of the executive or lurching instead toward an excessively restricted one. It is a terrible set of options."
Maybe so. But this gang has also left the American citizenry facing another and, in my view, much more serious issue to sort out:
Either those who made and carried out torture are held to account, or the US will have accepted torture as precedent, a "regrettable" but legitimate tool of practice, and those who use it in the future need fear no adverse consequences.
This is what I call The Torture Transition, and if it comes to pass, it will undermine the heart of our constitutional order. Impunity for torture now enables torture in the future, and makes dead letters of all the Geneva conventions, federal and states laws prohibiting it.
This in my view is a more terrible fate than any possible fallout from establishing that there will be legal consequences for planning, carrying out, and covering up or justifying official torture.
This fatal shift to torture-as-precedent will not come by some violent coup. It will steal over the government stealthily, under the cover of soothing rhetoric about "looking forward," and "avoiding recriminations," etc. Scott Horton has argued as much in his Harper's piece, and I believe we are well down that path already.
The Torture Transition will be none the less dangerous, mortally so, for that.
I invite you to read more about this at: http://www.friendsjournal.org/torture-and-impunity
And then take action to stop The Torture Transition,
November 27, 2008 9:55 AM | Reply | Permalink
I guess I'm not as up on this controversy as I should be, because its resolution doesn't seem that difficult to me.
First tier. Bush, Cheney, and Addington cannot be prosecuted. They didn't torture anybody, and more importantly, they didn't tell anyone else to do so ("This government doesn't torture.")
Second tier. What they did do is demand the acquisition of information which would achieve the desired end of forestalling attacks against the country. It was up to the CIA to do its best to provide that information. The Agency -- or more properly, the careerists and opportunists who occupy its top positions -- chose to employ torture in order to acquire the information they sought.
So, charge the CIA officials who directed the program. And to the extent that Yoo and Bybee conspired with these officials to induce lower level operatives to do the deed, charge them, as well.
The advice of legal counsel (the OLC memos) is a red herring. Although relying in good faith on the opinion of counsel may mitigate the punishment, legal opinions don't excuse the criminal acts or the criminal's responsibility for perpetrating them.
November 27, 2008 12:10 PM | Reply | Permalink
Ellen, you're such a kidder.
If I thought you to be serious on the implications of your First Tier, you should appeal the convictions by the WWII War Crimes Tribunals of those who authorized torture, medical experimentation and extermination camps or the Generals and Admirals of the Argentine junta, ad infinitum. You'd have employment for life.
Happy Turkey day
November 27, 2008 1:05 PM | Reply | Permalink
Yes, Yamashita was convicted. That conviction has been questioned ever since the day it was rendered.
To support your theory you'll have to come up with someone who didn't order the act which constituted the war crime and was, nevertheless, convicted.
November 27, 2008 7:26 PM | Reply | Permalink
Ellen, You don't think Bush tortured anyone? It has been 8 years. I feel tortured.
November 27, 2008 6:10 PM | Reply | Permalink
.
Wow . . .
Talk about tortured.
Ellen’s opinion is it in a nutshell, tortured logic that is. But I expect nothing less.
Anytime I find pretzel logic that is so tortured as that is it gets a free trip to the warm confines of The “TPM Two-Holer” at the Café.
QUACK!
~OGD~
November 28, 2008 3:43 AM | Reply | Permalink
This thread is torturous.
November 29, 2008 12:09 PM | Reply | Permalink
Hogwash; did these attorney freely swear an oath to defend and uphold The United States constitution? Is not the Office of Legal Counsel's main function to provide the Executive Branch with sound, rational advice predicated upon the rule of Constitutional Law? Are not ethical sanctions a valid form of punishment for malfeasance of office? There need be an accounting for this manifest evil that has metastasised throughout the ranks of governmental attorneys who were appointed by George Walker Bush, and subsequently proved themselves to be equivocating oath-breakers without a shred of personal honour. This cancer has spread far beyond the infamous Alberto R. Gonzales, John Choon Yoo, and Jay S. Bybee. What about:
- Bradford A. Berenson
- H. Christopher Bartolomucci
- William J. Haynes II
- Helgi C. Walker
- Pierre-Richard Prosper
- William P. Barr
- Timothy E. Flanigan
Additionally, there were Nine US Senators who obscenely voted against John Mcain's Anti-Torture Amendment No. 1977 to The Department Of Defense Appropriations Act, FY 2006:- Wayne Allard (R-CO)
- Christopher S. Bond (R-MO)
- Tom Coburn (R-OK)
- Thad Cochran (R-MS)
- John Cornyn (R-TX)
- James M. Inhofe (R-OK)
- Pat Roberts (R-KN)
- Jeff Sessions (R-AL)
- Ted Stevens (R-AK)
There are many others, who have with imbecility worked against truth, justice and the American Way, since the Nixon Evil Darkness. Contemporary Conservatives do not really believe that accepting personal responsibility for the effects of their actions is a core element of their philosophy. That just a lie they promote, because it enables them to stand atop a soap box and hurl despicable derogations at single moms.The Church Committee did not castrate America's Intelligence Agencies, nor was it a precipitate cause for 911. The CIA's analysts warned loudly about the inherent danger that al Qaida presented to the USA, but were ignored by an Administration so arrogant, incompetent and derelict, it failed at its its primary Constitutional Duty to Defend This Nation on September 11, 2001. Better look out, oh ye of limp-wristed hand-wringedness; better remember the lesson of your head on a platter handed to you by the Right-side in the recent past. They have given you the CIA scapegoat to chew on ruminatively, and will again attempt to leverage it as a political weapon of mass deception against you in the future's election cycles. How many times will they successfully command the other side of the linear polity: Oskankho bin Dover?
November 27, 2008 7:56 PM | Reply | Permalink
Even I, one among many of the unschooled in the Constitution or the 'law', was so taken aback by Gonzales' statement that I wrote it down on a piece of paper which I then saved.
"The nature of the war on terror makes existing laws and international agreements irrelevant." January, 2002.
I assumed that "laws and international agreements" meant all of them. Having lived with a Moscow-born step-father for years whose accounts of Russia following WWI and the Revolution were hair-raising stories of life under anarchy, a possibly lawless America was frightening - most likely the reason I wrote the statement down.
November 27, 2008 12:25 PM | Reply | Permalink
Do any of you wonder who the Nazi party in Germany will run for office next? And, how long before one of their candidate wins?
The only reason these aren't valid questions is that the Nazi party has been forbidden to run candidates, or, for that matter to do anything at all in Germany. It was obvious that that party could never be allowed to take any role in Germany again.
So, just to mention the unmentionable, both Nixon and Bush were Republican Party hacks. Their administrations were loaded to the gills with Republican Party members. Haven't they, too, now demonstrated that they cannot be allowed to run our government again? Is it so impossible to acknowledge the inherent criminality of that party?
I suppose we are just all too "chicken" to acknowledge that.
November 27, 2008 2:08 PM | Reply | Permalink
Am I missing something? Our country tried and convicted Lynndie England and Charles Graner for their actions at Abu Ghraib. Look at the pictures, they were guilty of indecent acts that humiliated prisoners. We know that what happened at Guantanamo was far worse. Are we discussing whether or not the acts of Abu Ghraib must be prosecuted while those done at Guantanamo are excusable? They are excusable because a lawyer wrote down that they are legal? Rediculous.
November 27, 2008 6:23 PM | Reply | Permalink
England and Graner weren't engaged in interrogations.
Try prosecuting an agent of the government for any acts committed during an interrogation between 9/11/2001 and 12/31/2005 in the face of 42 U.S.C. Sec. 2000dd-1 "Protection of United States Government personnel engaged in authorized interrogations" reenacted on October 17, 2006 as Sec 8(b) of the Military Commissions Act.
With respect to the "golden shield," we may note the following: "Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful." 42 U.S.C. 2000dd-1.
November 27, 2008 9:01 PM | Reply | Permalink
The problem here is that if lawyers lie then you'd have those who engaged in criminal activity on the basis of the lies should get off. That's wrong.
In your earlier reply you also assumed that Bush and Cheney et al never in private gave any indications to weaken or disrespect "This government doesn't torture."
In any event the air does need to be cleared.
November 28, 2008 12:25 AM | Reply | Permalink
"...a person of ordinary sense and understanding ..."
Great! But that still doesn't help in determining the culpability of GWB in these matters, or any others such as Rumsfeld and Cheney who so clearly fall outside this qualifier! :O)
November 28, 2008 12:27 AM | Reply | Permalink
Ellen ,
Please check your facts, Graner and all the lower ranks were put under the chain of command of the military interrogators -they were instructed to "soften up " the detainees prior to the next interrogations. There is credible evidence that the most senior civilian leadership was involved in migrating the torture practices started at Gitmo , to abu Gharib- The second half of forced into retirement Gen Taguba report has never been released -that second part allegedly names Rumsfeld and others has torturers & war criminals. Gen Taguba is also on record as stating that senior leadership did commit war crimes.
And please before you ask me who to indict ,and what to charge them with maybe we should have a full blown investigation first - a special prosecutor perhaps - but we need all the information on the table first - then we indict.
BTW about the same time that Graner and the lower ranks were being encouraged to sexually abuse detainees -there were contract private interrogators at abu Gharib -that were also torturing detainees . And one of those contract interrogators - I seem to recall working for Titan- was brought up on charges and convicted of prisoner abuse.
Release the Taguba report and all other relevant information -then we can talk about who gets indicted for what..
finally if there is a just God Yamishita is still slowly roasting in hell ...
November 29, 2008 4:51 PM | Reply | Permalink
Hmm.
That's what Graner's attorney said at his various news conferences. Unfortunately for his client, he wasn't able to prove any of these so-called "facts" when and where it counted -- at trial.
November 29, 2008 7:41 PM | Reply | Permalink
Your recollection of a contract interrogator having been "brought up on charges and convicted of prisoner abuse" calls for a link contradicting the following:
A lengthy Justice Department investigation has not yet led to charges against any civilian contract interrogators. Washington Post 8/29/2007
November 29, 2008 7:57 PM | Reply | Permalink
All this wingnut jibberish bruting the pernicious assertion that holding the fascists in the bushgov accountable is undoable, or a distraction, or is undermined and permanently altered by a simple use of language. REMOVE "excessively" from this hollow claim and the entire argument is meaningless.
"Cheney et al. have effectively left the courts and the next White House and Attorney General with the choice of embracing their unconstitutionally monarchical view of the executive or lurching instead toward an () restricted one"
The constitution itself is "restrictive". We need that to curb and constrain the kind of wanton abuses we witness and experienced and must now pay dearly for under the tyrannical reign of the fascists in the bushgov. Restrictive checks and balances are woven in the structural fabric of the constitution. To attempt to lurch away from these constitutional mandates and principles by FALSELY framing holding the bushgov accountable for crimes, treasons, betrays, abuses, deceptions, and wanton profiteering makes a mockery of the rule of law and the constitution.
We are either a nation that honors and abides the rule of law and the constitution, - or we are not.
If we are, then the people have the "right to petition the government for redress of grievances", and the fascists in the bushgov are acountable.
If not - then woe to us, for we are a lawless nation, a nation where criminals are allowed to retire to oppulent luxury for political expediance and cronyism, - a nation wherein select cronies, cabals, or cotories are free to operate above and beyond the law, - and therefore a nation that is doomed.
The law is the law, and no one, NO ONE is above or beyond it, - or there is no law. In a world where there are no laws, there are no laws for anyone.
The fascists in the bushgov are accountable.
November 28, 2008 1:58 AM | Reply | Permalink
The word "accountable" is pretty vague.
If you mean to charge a person with a crime, then, you must specify a criminal statute that you claim that person violated. That's what "abides" by the "rule of law" means.
Do you have any particular defendant and any particular statute in mind?
November 28, 2008 4:35 AM | Reply | Permalink
I actually derive a small sense of amused karmic justice when I contemplate the miserable future staring John Choon Yoo in the face. He was one of the Federalist Society's brightest rising stars, and they were prepping him for a fat-n-juicy Federal Bench appointment, most likely on the bench at the 10th. Yoo's future once possessed such potential, that many believed he was destined to become a Supreme Court Justice.
His work attempting to manufacture justifications for US Governmental agents' premeditated acts of human torture, aside from being Un-American, inhumane, and obscene, was also very poor-quality work production in its legalistic forms of esoterica. It would not result in even a grade of B if written by a first year law student.
John Choon Yoo may never again be able to holiday in Europe without someone guarding his back closely, lest he end up being hauled off to the Milosevic Suite at the Hague's calaboose. What is left of his future mostly revolves around his dead-end tenured professorship at a campus which many of his closest acquaintances believe epitomises the very worst of The American Left. Each and every lecture class that he gives will have many snot-nosed kids in it smirking, and thinking insulting thoughts about their law school professor. His every walk across campus will leave in its wake whispered derogations regarding his lack of personal honour. It may not be a punishment which rising to the level of fitting his crimes, but it is justice, as in poetic irony.
November 28, 2008 10:52 AM | Reply | Permalink
Bush needed a back door to do things that the WH actually understood to be ethically and legally objectionable to most people and counterintuitive to constitutional precepts.
But most of all this is about the exercise of power for the sake of power devised to create an inroad for government to erect philosophical barriers to commonly perceived notions of freedom.
The arguably illicit taking of power in this way is very difficult to undo. Governments seldom give back a power or authority to citizens no matter the premise. Every time this occurs the grasp on power or authority changes hands ever so imperceptibly. This resolves to a long term but consistent erosion of conceptual notions of freedom. Where the original formulation is altered, however small, there is a problem. Deceptive rationalizations ostensibly presented as solutions to problems are usually anything but. The Bush WH has continuously employed this tactical approach to justify the inappropriate taking of power.
Instilling fear in citizens has been a primary tool used to pry freedom from our hands. Our tools are bravery in the face of tyranny. Knowledge. The ballot box. Political awareness. We have to take up these tools and wield them with a vengeance against the enemies of freedom. In particular we need to challenge every obvious lie, no matter how samll, to prevent it from becoming a fabricated truth. Bush has told the same lies time after time. He has never relented. If we are not at least as relentless, he and persons like him will destroy freedom and our nation. Of that you can be sure.
November 28, 2008 5:15 AM | Reply | Permalink
Ellen ,
in your opinion is torture a war crime ?
And for the record Graner were following oders from higher ups ..
November 30, 2008 7:10 PM | Reply | Permalink
Ellen ,
Why won't the Bush regieme allow the various reports to be released - its not just the Taguba report on war crimes - its also other work such a second half of the Senate Select Committe on the Intelligence failure leading up to the misbegotten Iraqi occupation.
I fully expect Obama 44 to actively air out all of the gwb43 dirty linen -starting with the prevarications that lead to the Iraqi War - right through the black rendition program re Gitmo & abu Gharib , -and even the politicazation of the DOJ.
And Ellen all the careerist in the various agencies will be helping out the Holder DOJ to bring the rule of law back to our federal goverment. Don't take my word for it - former USA David Iglesias says the same thing - go find Terri Gross 's "FRESH AIR " interview with David discussing his book "In Justice " -BTW - Mr Iglesias also says torture is a war crime -and he is a former JAG,,
I have full faith & confidence in our system of jurisprudence -with the right leadership ..
Yes we can -have accountability for crimes committed against our laws and Constitution..
November 30, 2008 7:34 PM | Reply | Permalink
Who is the Client of the Government Attorney?
Who should know the answer before asking any question of the Attorney?
A portion of the discussion being thrashed out is a HIDDEN problem faced every day by Citizens and POLITICIANS when asking a City or County Attorney a question!
I feel that the corruption found in the local venues has moved to the Federal Attorneys. It seems the Federal Attorneys and the US Attorney no longer views the Government Entity or "Constitution" as their client but the Politicians and their ideology.
At the local level the Citizens need to understand they are not the client of the government attorney and act with that information. In every encounter they should act by asking the Attorney who is their client and what the instructions are from their client!
A Politician may be the Client, but usually isn’t the individual who is the Client.
It brings a whole new level of infighting when Politicians discover this as they are being sold down the river by the person who they thought was giving unbiased information!
It seems this also should now be asked of the Federal Attorneys and Prosecutors.
Who is your Client and what are the instructions?
November 30, 2008 10:51 PM | Reply | Permalink