Dear Café Clatch--

Thank you so much for joining me. To paraphrase Bob Dylan, you can be on my truth commission, if I can be on yours.

I wanted to leave you with the final thought, borrowed from Hannah Arendt, about why this business of getting the truth, and preserving it, is so important particularly in the darkest times. Before quoting her, let me also make the obligatory point that nothing the Bush Administration has done is remotely equivalent to the Nazi period. That said though, I think her point resonates in less horrific times too. In Eichmann in Jerusalem, she argues that one of the goals of police states is to establish "holes of oblivion into which all deeds, good and evil, would disappear." It is our duty, according to Arendt, to preserve history by descending into those holes, rescuing those individual deeds and recounting them to ourselves and our children. As she put it:

Under conditions of terror most people will comply but some people will not, just as the lesson of the countries to which the Final Solution was proposed is that 'it could happen' in most places but it did not happen everywhere. Humanly speaking, no more is required, and no more can be reasonably asked, for this planet to remain a place fit for human habitation.

I don't think we'll know whether the dog has yet to bark for a while yet. Let's give the new president time to take office and muster up the mettle, to use Hitch's word, to excavate the Bush skeletons. If they've all been ground to bits already, a la the interrogation tapes we already know were destroyed, then prosecutors, have at the perpetrators.

And if incriminating, horrifying photos and videos do come to light sometime during a future administration? Then the biggest question won't be whether Bush has shielded his wrongdoers by granting them pardons--though that will sting. It will be whether Congress and all of us summon the will to make sure that routinized torture never happens on our government's watch again. Jane, it's true that the Abu Ghraib photographs were a game changer. But did we get definitive, binding-for-the-future legislation out of them?

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The essential point that Christopher and Jane have been making is correct: the public needs to be patiently brought along on this issue. That's not a small point. It drives the process. So those who care about the torture issue serve their cause best by pushing to fully expose the facts. What, exactly, was done. Who gave the directions for it to be done. What did those high up in the Administration know, and what did they do when they learned. I expect the ultimate evidence will be extremely damning, as suggested by the statement that John Bellinger gave to Senator Levin last week, and I am certain that the most damning things are still being suppressed on bogus claims of national security.

Figures in the CIA who supported destruction of the torture tapes were largely driven by the same concern: when the public sees this, we won't look good. So it is imperative that the public see all this evidence and form its own views.

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Very briefly indeed - because, damn it all, I actually am going to attend a VP debate-watching party - I think that Jane may indeed be right about evidence yet to come, but that she also may be missing or understating the importance of what old Sherlock identified as the case of the dog that did NOT bark, and thus by indirection clinched the matter. I have to say that the single most shocking thing to me, not about the torture but the cover-up, was the calm admission that Langley had destroyed so many interrogation tapes. Whence came the permission for THAT? Who was present when it happened? Everybody understands that the deliberate destruction of pre-trial evidence is either prima facie evidence in itself or at least a very strong suggestion of guilt if not by suggestio falsi then at the very least suppressio veri, if that's the distinction I am looking for. In other words, only banana republics burn or shred state papers when lawsuits are impending.

As always,

Christopher

I agree that at the bottom of it all, the stumbling block to accountability is the complicity of the American public - AT THE MOMENT. But call me naïve, because I think that public opinion could shift if the next administration released certain explosive documents. The case of Abu Ghraib has hammered home the cliché about a picture being worth a hundred words. Humbling though it is for a writer, nothing written has matched the impact of those photographs. The international revulsion they stirred forced President Bush to publicly denounce them, and for the first time, call for some kind of investigation and punishment. As Eric Umansky and others have noted, it was only when President Bush acknowledged that a scandal had taken place, that the mainstream media - including network television news shows -- reacted as if something was wrong.

The CIA clearly understood the potential power of incriminating pictures, which is why they destroyed them. I am told that if the CIA's videotapes of Muslim detainees being waterboarded were seen by the public, the international political reaction would have been, as one former CIA office put it, "unmanageable." It was bad enough watching Hitch sputtering away. So- this brings me to the question of other photographic evidence. What's still in the federal cupboard?

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Well the thing is, as Rosa Luxemburg wrote to Lenin in 1918, all regimes have the temptation to take what they will always call "emergency measures", and then let these short-term hysterias harden into permanent laws, and then into routine practices.

I noticed this when I was a part of the ACLU suit against warrantless wiretapping. Probably very few people would NOT have demanded to know, on 12 September 2001, who was calling whom on US territory, from US territory, to US territory and so forth. A government that didn't also demand to know might have been impeachable for other reasons, and would certainly have been kicked to death by public opinion as it then stood. But then the urgent and the contingent become bureaucratic everyday reality, and it turns out that Congress and the courts didn't - ahem - actually know about any of or most of that.

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Christopher is right to remember Jackson's very powerful words. Let's recall them exactly:

If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. And we are not prepared to lay down the rule of criminal conduct against others which we would not be willing to have invoked against us. We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.

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Agreed, Christopher, that Biden and Palin aren't made of the stuff of Cheney, and that Obama and McCain wouldn't welcome a vice presidency like his anyway. Still, I think there's a bit more to play out in Jane's question, at least on the Republican side. Last week, when Palin got into a spat with the press over covering the handshake pleasantries before her sit downs with foreign dignitaries, I made the Sarah-to-Dick connection. Albeit for different reasons, they share a penchant for secrecy and obfuscation. Palin's has a different basis at the moment--she's turning tail, whereas Cheney barks and bites. At the moment it seems laughable to imagine her as the Cheney in "The Dark Side" and "The Angler." She's all puppet and no puppet master--that's her problem. But as governor, she had a governing style that sounds like Cheney lite, prizing loyalty and discretion above other attributes.

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As it happens, pace Scott and Christopher, I stopped to get an egg sandwich at the deli next to my office and who should walk by but Donald Rumsfeld. This marks the third time I've seen Rumsfeld jaunting down Connecticut Avenue in the mornings, a goon in wraparound shades three steps behind him, death's-head grimace (his version of a smile?) chiseled onto his face. Is a citizen's arrest for war crimes a non-concept? I'd cite Jane's book in my indictment.

Christopher's point about the need for universally-applicable rules of global behavior is as unassailable as it is politically unachievable. (At least insofar as I understood it: Christopher, were you advocating such a need or merely urging the rest of us to take up the argument?) Imagine if Barack Obama said, "We ought to follow Justice Jackson's exhortation against creating one international system for us and another for the rest of the world." The avalanche of demagoguery would be overwhelming. Everyone remember the hyperventilation over John Kerry's (predictably misquoted) "global test"? In keeping with Cheney's elevation of the expansion of executive power to a first principle, the right -- by which I mean not simply the conservative movement but the leadership and the membership of the national Republican Party -- holds any challenge to American hegemony to be a first-order national security threat. Several in the Bush administration -- including, remember, Jack Goldsmith, despite his current use as a liberal hero -- believe international law to be little more than "lawfare," a method of unconventional attack on American interests.

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What I had meant to add in my last post was the famous remark made by Justice Robert Jackson - our man at Nuremburg - to the effect (even if these were not the ipsissima verba) - that the United States sets no standard in these matters by which it is not itself prepared to be judged.

Now obviously the United States is not guilty on the main charge at Nuremburg, on which all other "war crimes" verdicts ultimately depended, of the crime of conspiring to wage a war of aggression in the first place. (At least, I am not among those who think it is guilty in this way.) And I myself prefer an administration that overthrows dictatorships to one which, a la Kissinger, imposes them where democracies once used to be. However, the Jackson standard appears to me to be one that we ought to have cited and gnawed over by now. After all, with most important treaties and conventions and declarations concerning human rights, the United States is not only a signatory itself but is the power that most strongly urges that others become signatories as well.
Night thoughts for a dark time....

Christopher is correct on universal jurisdiction. Moreover, we're beyond the point of speculation on this--one case is already underway. In Milan, a trial is now pending in which 26 American intelligence officers, diplomats and one military attaché are charged with kidnapping and assault in connection with the extraordinary renditions program. They are being tried in absentia and the U.S. refused to extradict them. Christopher notes Judge Garzon, and I have interviewed another investigating magistrate who advised me that the process of collecting information to proceed with a case against Bush Administration officials is underway, though there has been no decision to actually bring charges and it was not conceivable that such a decision would occur before the Bush team leaves Washington. As he put it "those currently serving the U.S. government have the protection of political considerations; but with respect to the officials of a former regime--they are fair game." That was in a country which supports the U.S. efforts in Iraq and Afghanistan and has sent its troops to fight in both, by the way. So whatever happens in the United States, it is likely that there will be some sort of enforcement overseas, and that people like David Addington and John Yoo will have to be extremely careful about any trans-Atlantic vacation plans.

To start with the easy question: the next V-P will not be of Cheney's mettle or metal in any sense, and nor will their bosses - except in the depressingly likely case of mental or physical capacity - need or want or encourage them to be. Joe Biden still cherishes his reputation as the great commuter, and as for the thriller from Wasilla....

The fetish of "bipartisanship" furthermore ensures that Obama won't want to seem vengeful and McCain will want to "move on". I also, to repeat my earlier misgivings about the state of public opinion, have a tendency to doubt whether any jury would be inclined to convict any American who might claim that he was stretching the rules to go after Al Qaeda or to defuse a "ticking bomb". This in turn might inhibit potential prosecutors.

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No possibility that any Bush Administration official will be held to account?! No, Jane, that's not my view at all. So let me be a bit more clear. I believe that the accountability process will not go quickly. It will take its time. The facts will have to be developed carefully. Then, when the heat is gone from present political feelings, some cold assessments can be reached. Everything I have seen up to this point makes pretty clear that there was a formal policy, adopted at the top of the administration, to abuse prisoners. This policy also included some practices which are well understood as torture (waterboarding, hyperthermia, sleep deprivation over two days, long-time standing, the administration of psychotropic drugs), and indeed have long been called torture by the United States when used by other governments. This can't be allowed to pass without action, because that would open the door for use of these techniques with impunity for posterity--not just by the United States, but by the Sadaam Husseins and Kim Il-Jongs of future generations. If we look at the enforcement actions in Argentina, Chile and Peru, for instance, it took a decade or longer. By that point, the crimes were thoroughly exposed and documented, and no one viewed the prosecutions as destabilizing, or even as politically motivated. Time addressed the "political retaliation" argument.

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Jane, no one could ever accuse you of skirting the big questions. I'm a different story. I'll leave your second question to others and take up your first:

...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?

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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.

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In my mind, Jane is asking the most important question--the accountability question. I also have had a run-in with a senior CIA official who described to me in some detail being briefed on the new policies. "I decided that afternoon that I was taking an early retirement," he told me. He went on to note that "it seems quite a few people took early retirement after getting that briefing." He also told me his thinking was simple: "It's not that this was bad policy. It was a crime. Black and white." It's clear that these moves were very controversial within the intelligence service. Although the pushback in the military is now very well documented, the pushback at CIA remains anecdotal. It will come in time, I think.

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Spencer, you are right about fantasy baseball. My own sense is that for an official like Addington or Yoo to come anywhere close to indictment, someone in the inner circle would have to flip, with the documents to prove it. Maybe what was divulged would change the dicey politics of a prosecution. (Because the upside for an Obama administration looks small compared to the softie downside for Democrats that Jane and Christopher sketch.) But in the more likely event that none of this happens, my question is how much energy the next president should spend on a difficult and inevitably recrimination-filled investigation. It would be cast as partisan and vengeful, and I don't see how any taking of the high road could really change that. There's the consideration Jane raises about whether such accountability is just given the circumstances, which I think of as the shadow cast by the show 24 (another great Jane topic!)

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Unsurprisingly for someone who's written such an excellent book, Jane asks an excellent series of questions. About two years ago, I had lunch with a former CIA official who tried to stop the torture. This person encountered a variety of opinion inside what used to be called the Directorate of Operations about whether it was indeed immoral or illegal to subject detainees to the "enhanced interrogation" regimen that Jane explores. But there was complete unanimity that CIA would end up holding the bag, marched before indignant legislators, smeared in the press, left at the mercy of grand juries -- all while the Bush administration officials who ordered and authorized the torture return to, say, their tenured positions at Boalt Hall.

Some of that reflects the odd culture of self-pity often seen at the CIA. But it also reflects a cardinal rule of policymakers: when the policy goes off the rails, blame the intelligence people. Not for nothing is Jose Rodriguez, former chief of the agency's clandestine service, the only U.S. official currently at risk of facing charges, not Yoo nor Addington nor Gonzales nor Cheney nor Bush.

So, yeah, there should be prosecutions -- or, rather, there should be the opposite sort of prosecutions that occurred after Abu Ghraib. Start with, say Addington and Yoo.

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Well, if we are allowed to mention the "unmentionable" then there are some other bad reasons why this subject has not come up during the present round of electoral antics. One is extremely depressing: a large number of people secretly approve of "harsh" methods but do not want - or expect - to be told about them. (Nor, necessarily, do they want to have to justify them: there's an upside if you like!)

Knowledge of this fact I think inhibits the Democrats from making a big noise about the problem. It has a "knock-on" effect in the intelligence "community" as well: American opinion demands safety and will most certainly demand accountability if that safety is once again violated. Thus some field agents must see themselves in the unenviable position of being asked for decisive results and then potentially having to hire a slew of lawyers in case they turn out to have crossed a line. There's a "stab in the back" mentality in the making, and that is never good for democracy.

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Welcome to all who are part of this discussion - please let it rip.

I wanted to start by bringing up the unmentionable question in the current presidential campaign, where both candidates are avowedly against the Bush Administration's embrace of torture and lesser cruelties in the "war-on-terror." While both McCain and Obama have spoken out against torture, neither has spelled out what he plans to do about holding Bush Administration officials accountable who may have committed or authorized crimes. Understandably, this is a toxic subject, reeking of political payback. But I have personally interviewed CIA officers who have said they refused to partake in the "enhanced interrogation" program because they feared that eventually it would lead to criminal charges. They had seen this happen before, and wanted nothing to do with it, even if it meant in some instances, leaving the CIA. The threat of prosecution clearly acted as a deterrent. My question is what happens if there is no accountability for America's first program of state-authorized torture? Does it send a green light to torture again when the next attack takes place? Is it an invitation to other forms of lawlessness by the U.S. Government? 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, are now prosecuted, is that just? Will the public support it? Particularly if Obama is elected, wont this become exhibit A that the Democrats are soft on terrorism, and members of the "Blame-America-First" Club?

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This week, Jane Mayer joins us for a book club discussion on her latest, The Dark Side: The Inside Story Of How The War On Terror Turned Into A War On American Ideals.

The book lays out in careful detail a chilling narrative-- how the Bush administration made the transition from the September 11th World Trade Center attacks to The War on Terror, to a systematic, institutionalized use of torture. This week, in the Bush-twillight, we turn our gaze to the future. What will the incumbent president do with an executive office that has left the constitution a smoldering wreck? In short, what will post-bush accountability look like? What will the consequences be?

Discussing along with Jane: Christopher Hitchens, journalist and literary critic, Scott Horton, Harpers Contributor and New York Attorney specializing in human rights law and the law of armed conflict, Emily Bazelon, senior editor at Slate, Spencer Ackerman, journalist and blogger and Marty Lederman, visting professor of Law at the Georgetown University Law Center, and blogger.

Jane's first post up shortly. Join us!