What we already knew, finally said explicitly by someone in a position to know.
The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a “life-threatening condition.”
“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.
About prosecuting the torturers, I understand the point that Obama needs pressure from us to do the right thing, but on that particular point I really wish that people would calm down a notch. There are several reasons why I feel that way.
(1) We (and by ‘we’ I mean in large part Glenn Greenwald) successfully forced Obama to drop a torture-defending candidate for CIA chief. Instead Obama Leon Panetta, whose record on the issue is clear and unblemished. Notably Obama could make that substantive decision right now. It makes sense to influence decisions that Obama is currently making. It does not strike me as useful, however, to spend much energy on things that he cannot possibly do until he actually takes office.
(2) The present administration reads the papers. If Obama gives the impression that he is hell-bent on jailing Bushies then the President will certainly Fletcher the third and fourth branches of government, including himself if he thinks justice Kennedy will swing his way on that question. That would make it easier to subpoena people who cannot plead the Fifth, and it would automatically trigger war crimes courts abroad, but we can all agree that people who torture, among other major crimes, should ideally face justice at home.
(3) Because there is no statute of limitations on torture, President Obama could change his mind at any time if and when more information comes to light. It follows that our first priority should be blocking the appointment of government officials who are potentially exposed to full accountability for Bush-era crimes. We can change his mind at any time, but not as easily if his administration has potential targets in the inner circle. The promises of a politician mean a lot less than what he actually does, and what he’s doing right now is appointing cabinet members.
(4) Much more information will come to light. Hundreds of insiders want to talk to reporters like Murray Waas and Seymour Hersh, but they legitimately fear the administration’s insane, singleminded vindictiveness regarding whistleblowers. Given the transformative effect of the stories that have already leaked, it seems safe to predict that the stories yet to be written will similarly harden public attitudes against Bush. Both reporters and Congress will have an easier time following up with when the Executive Branch chooses not to throw up every roadblock from bogus State Secrets claims to lying to Congress.
(5) Nobody casually decides to prosecute cabinet officials and above. Prosecutors of Lynndie England certainly weighed the political angles of their indictment; in the case of prosecuting Dick Cheney or Alberto Gonzales the political angle is so overwhelming that it overshadows the profound legal exposure of either, and I say that with a full understanding of how thoroughly Cheney and Gonzales trashed the US Constitution. Look at it as Kant might have done: do we want Presidents committing themselves to siccing prosecutors on previous administrations as a matter of habit? In four years every administration commits a sheaf offenses against good taste, against the English language and, yes, against the legal code of the United States. A determined prosecutor will inevitably find a nut. For that reason, even taking into account the obvious and undeniable crimes that we already know about, Obama will serve the country better if he begins with a skeptical position, one might call it conservative, and lets official fact-finding and public pressure move him in the right direction.
Add it all together and I’m not saying that we should not keep the pressure on Obama to do the right thing. Far from it. I think that we should pressure the hell out of Obama but make sure that we focus on where pressure will produce useful results. Promises from a politician and $3.50 will get you a voting share in Madoff Investment Securities LLC. So why demand them? We should pressure Obama to keep the taint of Bush crimes out of his cabinet. We did that (again, by ‘we’ I mean Greenwald and a few others).
We must ensure that the truth comes out. Seymour Hersh and other reporters will do some heavy lifting in that respect, but history has shown that the press weighs ‘official’ commissions (e.g., the Iraq Study Group’s fart-in-a-tornado recommendations) over original work by solid reporters like Hersh. We need to make sure that Congress and Obama, who clearly responds to pressure, use every power at their disposal to expose what the Bush gang have tried so hard to hide. We can push for official commissions with broad subpoena powers, staffed with members determined to do their job and who lack Bush-era conflicts (Waxman yes, Harman no).
With that done, we can hope that the public responds appropriately when it fully understands the depraved, criminally incompetent regime of the last eight years. If the public doesn’t demand accountability, which pressure Obama would be unable to resist, then as a country we don’t deserve it.
Zifnab
Aside from the hundreds of suspect detainees who have suffered the treatment of Rough Burly Cod-piece Wearing Men in the Night, I can name a few more victims of the Bush Torture Regime.
There’s the tortured truth, the tortured mentality, the tortured logic, the tortured metaphors, and – perhaps most numerous – the sad tortured souls have to clean up the mess left behind.
So yeah, I’m pretty sure the Bush Admin tortures in every sense of the word. Not sure why this is "news".
Zifnab
I honestly don’t see the problem with the current public outcries. Coming down too hard ‘against’ torture from a public standpoint is hardly a bad thing, even if we are asking the impossible from a President who has served a grand total of negative six days in office.
I’m happy to see loud and aggressive action now just to get the ball rolling. And all this protesting isn’t even that new. People have been rallying against Bush’s torture policies and calling for everything from impeachment to war crimes trials at the Hague since Abu Garab broke four years ago. Now that Obama is lined up to enter office, we aren’t seeing anything "new" beyond the possibility that demands to see information, investigate officials, and begin prosecution might actually be met. These demands are just getting a lot more publicity now that we don’t have a Bush-staffed DoJ and a Republican-heavy Congress laughing it away.
Joe Buck
Obama should keep things ambiguous until Jan. 20, so Bush won’t know whether he needs to issue pardons or not.
After the 20th the Justice Department should name a special prosecutor, choosing a respected, nonpartisan career prosecutor to do the job. The framing should be that the investigation has to be done, but it has to be removed from politics: we can’t have Democrats prosecuting Republicans and vice versa. The prosecutor should be given a wide charter.
The change.gov question said "ideally Patrick Fitzgerald", but Fitzgerald’s busy with the Governor F-Bomb matter and shouldn’t be removed from that investigation.
Tim F.
Honestly, I don’t think that any of us are doing anything wrong. We need voices against torture and for prosecuting torture. The problem is that people expect Obama to commit to something now. He can’t do it, and even if he could, he shouldn’t do it. From a political standpoint he needs a full investigation and irresistible public pressure to at least appear to force his hand. Again, this isn’t like reforming healthcare or even closing Guantanamo. He simply cannot set the precedent of electively prosecuting the highest officials in the previous administration. The decision has to credibly appear inescapable.
Emma Anne
Really good post. I have been in the "start by investigating" camp for a while, figuring that it is easier to do the right thing once everyone knows just how bad the crimes were. Your point about concentrating on keeping implicated people out of the next administration makes a lot of sense too.
mclaren
Pragmatic, sensible, admirably clearly thought out. Who the hell are you people and where are the self-destructing numbskulls who used to make up the Democratic Party?
All of a sudden the liberals are the adults in the room, organizing their ranks, getting things done, while the conservatives run in hysterical circles gibbering counterproductive drivel. Wow. This is going to take some getting used to.
Punchy
I can’t wait to find out what a worthless, libtardly terrorist-banging, no-nothing, treasonous whore Susan J. Crawford suddenly is. I’m sure Rush and Hannity will give me the straight skinny on that.
Xecky Gilchrist
If the public doesn’t demand accountability, which pressure Obama would be unable to resist, then as a country we don’t deserve it.
Actually, we still do. I count accountable government among things like life, liberty, and pursuit of happiness as things that the U.S. public is entitled to whether or not it knows it or claims to want it.
Xecky Gilchrist
@mclaren: All of a sudden the liberals are the adults in the room, organizing their ranks, getting things done, while the conservatives run in hysterical circles gibbering counterproductive drivel. Wow. This is going to take some getting used to.
The liberals do seem to be behaving a bit differently – except maybe those in Congress and especially in the leadership. The conservatives have been acting exactly like this all along, but the public was happy enough to pretend otherwise as long as the chickens hadn’t come home to roost.
Punchy
Ha ha! Trust me, anyone Obama chooses–and I mean anyone–will be called "partisan" the minute they uncover wrongdoing in the Bush WH, which should take all of his/her first 7 minutes on the job. With Republicans, you’re only nonpartisan if you rule in their favor.
linda
there is absolutely no possibility that u.s. war criminals would ever be prosecuted by any u.s. court.
prosecution of the american elites for their crimes is not acceptable to the village magpies who so identify with them; and who support(ed) those torture policies.
afterall, it wasn’t scooter libby’s family who packed up and moved to new mexico.
zmulls
I love this post (mainly because I agree with it).
There is no public appetite for prosecution right now, but much of the truth has been kept from the public. Obama’s approach should be "look, we are just getting the files now, and we all just want to know what really went down."
At some point, there can be an orchestrated shriek from the Congress over things found out, and there can and should be hearings.
A steady stream of revelations will turn public opinion. It’s the Art of the Possible, and it’s not Possible just yet to bring justice where justice is due.
That, and only a fool would tip his hand prior to Tuesday at Noon.
Zifnab
I agree. Obama is playing shrewdly, and I appreciate that. However, I don’t have any problem with folks demanding something now, even when it isn’t practical. If Obama drops the ball on this – if he pulls a Ford, pardons his predecessor, and tries to sweep it all under the rug – he is going to suffer, and rightly so. But if people want to picket the Inauguration demanding Obama start hand-cuffing Bush Admin officials personally, I can’t even object to that.
The Overton Window is getting a solid kick left. People are demanding prosecutions start ASAP. The bar is set deliberately high from the populist side. Public support is getting prepped now to give Obama the absolute maximum leyway to act.
Until Obama does act, pressure will continue to mount, and assuming he finally drops the hammer, the moment will be cathartic.
Both sides are playing this well, in my opinion, and with luck the right-wing "pardon everyone and let it slide" position will get drowned out in the debate over exactly who to prosecute and how severely to punish them.
Shygetz
Enough of the truth has come out to clearly indicate criminal wrongdoing. Do I have to uncover every victim of a serial murderer before I demand prosecution, or are twelve victims enough? Sure, uncover the rest, but start prosecution on what we already know early on. For every Cheney who pleads the Fifth, you’ll have ten underlings willing to cut a deal to keep their smooth pale asses out of the Federal pen. It’s not an "either-or"–investigate AND prosecute, using leverage from the prosecution to advance the investigation. This is rookie DA stuff; I guarantee Obama can find someone capable of doing both simultaneously.
I’m part of "the public" and I demand (and therefore deserve) accountability for the crimes I already know about. Unless your argument is "Don’t prosecute until you know EVERYTHING" then I don’t understand the point of this post.
the other Steve
It is unlikely that obama will go after prosecutions with much vigor for the sole reason that the people who would be responding to court requests for information would be existing officials.
Same reason ford pardoned Nixon.
Mass dweller
John, really well thought-out. Thanks. It hits all the right notes: stay calm until the Inauguration, apply focused pressure to the right issues, monitor the results, increase pressure as needed. We can and we must do this.
TenguPhule
They’re currently House and Senate Majority leaders.
gwangung
I think the point is don’t prosecute until there’s overwhelming public pressure to do something. Note that a) prosecution is different from investigation, and b) there is not overwhelming public pressure to prosecute.
The Pale Scot
"seems to me Louis that the way you hurt rich people is by making ’em poor"
Billy Ray Valentine.
Going after these bastards would definitely create a precedent for prosecuting retiring administrations that the GOP would wield with glee. On the other hand, bringing to light information the tortured can use to bring them into civil court and relieve them of their assets keeps the administration out of the way, puts a spotlight on the torture, and hurts the perpetrators where it hurts the most, especially if companies like Halliburton can be implicated, after a finding of fact the civil court can just start freezing assets everywhere.
Can’t get the image of George, Gonz and Cheney sharing a box together.
The Pale Scot
Oops!
Can’t get the image of George, Gonz and Cheney sharing a box together out of my head.
Shygetz
But how are we supposed to generate overwhelming public pressure for prosecutions by shutting the f*ck up about prosecutions? I mean, usually in order to win an argument, you actually have to argue your side, amirite?
Gus
If you’re feeling masochistic, check out the comments thread to the story at the Post. I know I should know better than to read them, but I can’t help myself. Sample post:
"So bloody what. We’re supposed to take this old lesbian’s word that NOW she is upset? He’s a muslim terrorist. He planned on killing innocent people that he did not know. If he was questioned in an aggressive and sometimes physical manner – big hairy deal."
feral1
Tim,
Your thinking and writing are really top notch. Keep up the good work.
Matt
Sing it with me…
JL
@Joe Buck: Bush will issue pardons unless, he thinks the Supremes will ignore the rule of the law and condone torture.
kay
But how are we supposed to generate overwhelming public pressure for prosecutions by shutting the f*ck up about prosecutions? I mean, usually in order to win an argument, you actually have to argue your side, amirite?
One way to do it is to call them out, and that’s happening. People, primarily legal scholars, are choosing up sides. That’s where it starts. They’ll define the terms of the debate, and they should, it’s what they know. From there it enters the public debate.
Prominent people (the kind that get called for interviews) are going to have to weigh in, and they are. It’s already happening. They can’t dodge it now.
gnomedad
Witchhunt!!
Michael D.
Ohhh Riiiiight. Yet here we are – and Rick Warren is still doing the invocation.
< /ducks! >
I’M KIDDING!
Seriously. Very thoughtful post. Buy cialis!
gbear
Obama could take care of this problem very efficiently by giving the Bush’s and Cheney’s a ‘job-well-done!’ gift of a week in France.
A side trip to Amsterdam could be arranged…
gwangung
Investigation and prosecution are not the same thing.
AhabTRuler
Fixeteth.
Besides, I am still sad that Pink Floyd (Haarlemmerstraat 44) is no more. Sigh. It was a great place to go on New Years eve.
par4
Zifnab wins in the first
Comrade Stuck
I hear ya, and pretty soon the torturers will hear from all of us!
Svensker
Here’s a link to the National Religious Campaign Against Torture page. It has a torture clock countdown (which zeros out on Inauguration Day, and then starts up again if Obama doesn’t sign an Exec Order against torture by Jan 21). There’s also a petition to sign, the suggested Exec. Order, downloads to share, prayers, etc.
I know many of you are secular, but strange bedfellows, etc. It’s a good cause.
barkleyg
I want King George and his Monarchy behind bars so badly, but what is the rush?
First things first. The country needs an economic stimulus package, and we need reasonable cost health care for everyone. We have to work with the Repugs to get these and other bills passed. Now is not the time to make enemies; better to wait to make it official after the country’s economic woes are a little better.
My advise would be to concentrate on passing laws and reforms, rebuilding the DOJ, and other politicized department; ie. bringing laws back to "Constitutionality", and not a phony DOJ opinion.
The magic year for looking back on past misdeeds should be 2011. If the election results are any where near today’s"prognostications", 2010 should be another good year and enable Democrats to tell the Repugs to shove it, their days of the tail wagging the dog are over, and that 2011 has allowed the country to calm down, and be able to hold investigations into torture and those who endorsed it, the political influence on DOJ prosecutions, what did the WH really know( what they said, and what they knew and didn’t say) before the 2003 invasion of Iraq, etc.,etc.,etc.
01d55
YES. YES WE DO.
There isn’t a former president alive I wouldn’t gladly see in jail. If Obama broke the taboo against prosecuting former (or dare I suggest, incumbent) high government officials (he won’t) it would be the best thing he could possibly do with his entire life.
What you might think of as the argument against this – that politicians would create politically motivated prosecutions of their opponents – is the argument for this. It makes criminal behaviour politically fatal: using your powers in office to break the law, which is currently a very low risk (or even risk-free) move, becomes a huge vulnerability that your political foes can use to destroy you. This creates an inducement – the only effective inducement I can think of – to not break the law.
Face
WTF cares. You could get Cheney and Bush on tape personally killing small children with swords, and they wouldn’t spend a day in jail. Former Presidents and Vices, under no circumstances whatsoever, will find time in jail.
Nevah. Gunna. Happen. Evah.
Investigate, yes. Prosecute? Waste of time.
CJ_n_PA
Stop wasting your time…
There will be mass blanket pardons issued on Obama-eve.
The legality will be questioned by the blogs but not by the DOJ.
The issue will slowly fade into the memory hole that is amerika….
Amanda
Very well said and an excellent point.
Puts me in mind of how Obama has handled making his case for the economic stimulus. He consistently cites economic experts from across the ideological spectrum — to argue for a big stimulus. This makes his case seem all the stronger, imo.
Tim Fuller
God has spoken:
http://www.flickr.com/photos/timtimes/3123978019/
Enjoy.
Catsy
QFT. Look at how the Republicans turned on Fitzgerald. We’re talking about someone who is quite possibly one of the most competent, professional and fair-minded prosecutors in the country, one of their own fair-haired boys, and the moment he didn’t dismiss the Libby matter out of hand he became a commie liberal pawn.
Making decisions based on how the Republicans will whine about it is a mug’s game. The question isn’t whether or not you can keep them from whining, it’s how effectively you can make them look like the whiny toddlers they are for doing so.
Also, it’s worth noting that pretty much since day one of his campaign, Obama has impressed me by consistently making decisions that I think are utterly retarded at the time, decisions that later turn out to have been effective and correct. The conclusion I draw from this is that President-Elect Obama simply plays a much deeper game than most of us–certainly than myself–and while I agree that we should keep up the pressure for him to do the right thing, at this point he’s earned the benefit of the doubt.
Sean
"
If Bill Clinton had violated any laws (other than blowjob perjury), Congress would have gone after him with barrels blazing. Prosecutions are necessary to deter future crimes. End of story. The same fucks that destabilized Central America and were never held accountable for Iran Contra came back and committed crimes again. Once you have fucked up like this you need and deserve the stigma of a felony conviction. Anything less is total bullshit.
joe from Lowell
First rate analysis and strategy, Tim.
Well done.
priscianus jr
I do so totally agree with you on this Boo. I’m surprised that Obama has said even the little he has said. This is a legal issue, of course with huge political overtones — but still essentially a legal issue. All the pressure just politicizes it further, especially since the guy’s not even president yet — and there’s no need for him to be in the middle of it even if it does all go ahead. Maybe a lot of these folks are too young to remember anything even "resembling" the way the federal government is supposed to operate. You know, the Constitution and all that.
priscianus jr
My God, Tim , sorry – I got so caught up in your excellent post, I forgot what blog I was on! I hope you will understand it as the (subconscious) compliment it really is, that I had a "senior moment" and thought I was reading BooMan.
gerry
I actually think it would be better to send these guys to the Hague for prosecution. I think it would have a better deterrence effect on future officials. It would help us get past our exceptionalism. I’ve thought that the best approach would be to encourage the military to see this as a way to discourage future reckless military adventures.
hamletta
PUBLIC. UR NOT IT.
You are only "part of," and a politically geeky part, at that, or you wouldn’t be posting here. Our fellow Americans are panting for their Man Date with Barack Obama, but they’re all about Hope ‘n’ Change; prosecuting former administration officials for being mean to furriners, not so much.
Surely you’ve heard that old story about some activist getting face-time with FDR. Activist presented his argument about some policy FDR should enact, and he said, "Great idea. Now get out there and make me do it."
Sure, there’s probably enough evidence around to indict these fuckers, but it’s not just a matter of law, it’s a matter of politics. If you don’t handle it right, it’ll shoot you in the face like Dick Cheney on a bender.
The ideal would be something like the Watergate hearings, with reg’lar ‘Murricans tuning into C-SPAN like it was the Super Bowl.
Shorter me: Tim F. is right.
Birdzilla
Hey where were all these liberal jerks when our vietnam war vets being held as POWs at the infamous HANOI HILTON who were being tourtutured for refusing to appear with HANOI JANE and denounce our nation?
wilfred the shoe throwing Norwegian
Investigations and prosecutions are not very likely, mainly because whatever torture used was applied to a SPECIFIC religious and/or racial group who have been the addressees of what amounts to a bill of attainder.
There’s no getting around this. Only Muslims, mainly Arab, have been tortured. Nobody else. Arab and Muslim lives are cheap in American eyes – if they weren’t, there would have been a greater outcry over the thousands of civilians who have already been killed, including this latest manifesation where over 300 Palestinian women and children have been blown to pieces yet the American congress voted overwhlemingly to approve of it and even continue it.
Whatever Obama’s pwn convictions, his own party has been just as complicit in the Reign of Torture, witness Feinstein/Schumer’s votes for the torturously ambigous Mukasey.
Children invariably ask: "If it’s wrong to be cruel to animals, why do we kill and eat them?"
Protesting the torture of Muslims and Arabs dispenses with the question.
wilfred the shoe throwing Norwegian
We’ll know more about Obama if Eric Holder is asked any of the following questions – and how he answers:
Now if none of these questions are even asked (i.e. by Democratic senators), then we’ll really know what we’re in for. If the shoe fits, throw it.
NYT article has other questions.
mey
Well said, Mr. F.