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The ACLU's Jameel Jaffer does a great job here and explains what needs to happen in regard to torture prosecutions:
Jaffer: I disagree with former Vice-President Dick Cheney about the investigation. I think the problem with the investigation is, it's not the existence of the investigation but the scope of the investigation. The problem with it is that it's focused right now at least on interrogators who exceeded their authority. And I don't have any problem with prosecuting and investigating interrogators who exceeded their authority.
But any fair investigation has to be broad enough to encompass not just those interrogators but also the senior officials who authorized torture and the lawyers who facilitated torture. And among the senior officials, who I think are most responsible for putting this torture program into place is former Vice-President Cheney. And so I don't think it's a big surprise, certainly not a big surprise to me that former Vice-President Cheney is opposed to any investigations.
So what do we get in response in this segment. Author Joseph Finder repeating the right wing talking point I aleady addressed in this post, and Jamie Rubin saying we should white wash the whole thing and "decriminalize the whole process". Yeah, that will get these guys to come clean about what happened. All the facts will come out if we give them immunity from criminal prosecutions. Riiiggghhhttt.
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From The Ed Schultz Show, Jerrold Nadler says the appointment of a Special Prosecutor doesn't go far enough and that the law is that when torture occurs under American jurisdiction there must be an investigation of everyone who may have been involved and if warranted prosecutions. Nadler expressed concern that we aren't being aggressive enough and limiting the investigations too much. He also adds this:
Nadler: We are well into territory already, where because of the pardon of Nixon after Watergate and the people around him, because of in the Iran Contra, we're getting into territory where it becomes taken for granted that high officials can violate the law and get away with it.
Schultz: Yep.
Nadler: If high officials violated the law here, if Cheney did, if Rice did, etc., they've got to be prosecuted to show that no one is above the law.
I agree with his point that no one is above the law. I disagree that we're "getting into territory" where high officials take it for granted that they will never be held accountable for their law breaking. We're well past that point now.
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Sheldon Whitehouse while being asked about the torture bombshell that Lawrence Wilkerson dropped on Dick Cheney says that if what Wilkerson asserts is true and the Bush administration went outside of the OLC's legal justification for the torture, it raises the prospect for criminal prosecutions.
Sanchez: We're hearing from ex-Powell Chief of Staff Lawrence Wilkerson and he's making the argument that he believes that what the Bush administration was doing with enhanced interrogations was trying to make a case for the invasion of Iraq and trying to justify what happened in Iraq. So you believe that is actually what enhanced interrogation, "so called" torture was being used for?
Whitehouse: I've heard that to be true. There is some further evidence of that in Chairman Levin's Armed Services Committee report. There is not a great deal of evidence that came out in our hearing one way or the other about that. The one thing I will say about that is that if that is true, then it takes the application of these techniques out of the protected scope of the Office of Legal Counsel opinion.
Sanchez: And it makes this them political. It's not about we were scared, we wanted to defend the country any more. Now it's about we needed to have some political justification or something we wanted to do. (crosstalk)
Whitehouse: And that raises the prospect of there being a criminal prosecution that could justifiably emerge from these facts if that were in fact the motivation.
Sanchez: One quick thing before I let you go...Am I hearing you say that if there was evidence, enough evidence on this particular subject, that it was being used to try and get or boost the reason for the war in Iraq, that you would be more likely to push for criminal prosecution?
Whitehouse: Torture is criminal. If it's not justified by the OLC opinion. If there aren't any defenses that that raises because you've gone outside of it then it exposes people to that. That's a decision that should be made by the Attorney General, by an appropriate prosecutor or official...
Sanchez: But will you say on the record that if you find evidence of that you're more apt to want to push for a prosecution? Yes or no.
The President had a press conference on Wednesday night in which he was asked two questions about torture. If you'd been there, Mark, what would you have asked him?
[...] BRUCE FEIN: I would have asked him, since he's agreed that what was done was torture, and that the United States criminal code makes torture a crime. And there's no national security exception, no exception if you get useful information. And because we had impeached, in the House Judiciary Committee, a former President, called Richard Nixon, for failing faithfully to execute the laws. How he can justify not moving forward with an investigation when we have a former President and Vice President openly acknowledging they authorized water boarding, what he has described as torture, is a crime.
Or in the alternative, if he thinks that there are mitigating circumstances, and there's body language suggests that, then he should pardon them like Ford did Richard Nixon. And the reason why the difference between a pardon and non-prosecution is important, is because a pardon requires the recipient to acknowledge guilt. That there was wrongdoing. There was a crime. Just forgetting and sweeping it under the rug suggests this wasn't illegal.
BILL MOYERS: But he is clearly trying to move, as he says, beyond the past. He's closing Guantanamo. He doesn't countenance torture. He says it won't happen on his watch. I mean, shouldn't that settle the issue?
MARK DANNER: This is an issue that, as he has put it, divides the country. But because it divides the country, in my opinion, is one reason we have to confront it. The idea that this is about the past is simply wrong. It's not about the past. It's about our present politics.
Fein is exactly right. As long as we act as if a crime wasn't committed, we undermine the rule of law.
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Apparently George Stephanopoulos just can't wrap his head around the idea that the lawyers who wrote the newly released memos might have done it to sanction torture. What other reason does he think they could have possibly had for writing them? And in response Matt Dowd says that those on the left just want to punish people. Heaven forbid anyone might want us to be a country of laws and one that doesn't sanction torture. No, it just has to be about revenge to him.
Whenever things start looking really bleak -- like prison-time bleak -- for conservatives, you can always count on them to trot out that timeworn old Nixon favorite: "You're just criminalizing politics! Waaaaaaah!!!"
Of course, I fully agree that the criminalization of politics is a problem that needs to be solved. And I think the way to solve it is to get the criminals out of politics.
After all, nothing criminalizes politics faster than criminals. If we don't want to be charging our politicians with crimes they've committed while in office, we shouldn't be electing politicians who commit them. Or condone them.
Now, with the release of the torture memos -- which let us see, once and for all, just how morally and ethically depraved the Bush administration decided to make us -- the wingnuts are upping the ante.
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Rachel Maddow talks to Michael Isikoff about his report in Newsweek The Lawyer and The Caterpillar. This is big news if Holder follows through.
Maddow: Based on your reporting it appears that the White House and the Department of Justice are maybe on very different pages when it comes to the question of prosecutions and torture. Is that what you see going on inside the Obama administration?
Isikoff: Well I have to say, they should be on different pages. Just listening to some of the comments in the last few days, particularly from Rahm Emanuel and Robert Gibbs about how the President is focused on looking forward and not backward and he's not interested in seeing these people prosecuted. You know there's some people at the Justice Department who were listening to that and saying that's not their decision to make.
Decisions about criminal prosecutions are made by the Justice Department based on evidence, the facts and the law and this actually is sort of a taboo about the White House meddling and dictating to the Justice Department about who should be investigated and who shouldn't. If fact if you go and Google Justice Department White House communications you'll the first thing that will pop up is Justice Department guidelines that very specifically lay out the ground rules for communications between Justice Department and White House on pending criminal cases and when, how those communications should be handled and what role the White House has in even learning about criminal investigations, much less trying to dictate who should be investigated and who shouldn't.
Maddow: So are you hearing from sources at the Justice Department that when they heard Raum Emanuel yesterday and Robert Gibbs today saying there won't be prosecutions in that sense there were, there was surprise, there was anger at the Justice Department?
The New York Times called today for investigation and prosecution of John Yoo and Stephen Bradbury, and impeachment of federal judge Jay Bybee:
We do not think Mr. Obama will violate Americans’ rights as Mr. Bush did. But if Americans do not know the rules, they cannot judge whether this government or any one that follows is abiding by the rules.
In the case of detainee abuse, Mr. Obama assured C.I.A. operatives that they would not be prosecuted for actions that their superiors told them were legal. We have never been comfortable with the “only following orders” excuse, especially because Americans still do not know what was actually done or who was giving the orders.
After all, as far as Mr. Bush’s lawyers were concerned, it was not really torture unless it involved breaking bones, burning flesh or pulling teeth. That, Mr. Bybee kept noting, was what the Libyan secret police did to one prisoner. The standard for American behavior should be a lot higher than that of the Libyan secret police.
At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.
That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.
These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.
After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability.
Will you join me please and Sign the petition? With the revelations that Jay Bybee was in the middle of trying to legalize torture for the Bush administration, particularly with the evidence that he penned the disgusting torture memo in 2002, I fully support all efforts to have this man impeached. The OLC is supposed to give sound legal opinions to the executive branch, not bend the law to fit their sick world view which makes this all the more egregious.
Salon's Joan Walsh has a thoughtful followup here.
Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. attorney general Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid. But the decision is likely to raise concerns with the human rights community on other points: they will seek to have the case referred to a different judge.
Both Washington and Madrid appear determined not to allow the pending criminal investigation to get in the way of improved relations.
The six defendants—in addition to Gonzales, Federal Appeals Court Judge and former Assistant Attorney General Jay Bybee, University of California law professor and former Deputy Assistant Attorney General John Yoo, former Defense Department general counsel and current Chevron lawyer William J. Haynes II, Vice President Cheney’s former chief of staff David Addington and former Under-Secretary of Defense Douglas J. Feith—are accused of having given the green light to the torture and mistreatment of prisoners held in U.S. detention in “the war on terror.”
The case arises in the context of a pending proceeding before the court involving terrorism charges against five Spaniards formerly held at Guantánamo. A group of human rights lawyers originally filed a criminal complaint asking the court to look at the possibility of charges against the six American lawyers. Baltasar Garzón Real, the investigating judge, accepted the complaint and referred it to Spanish prosecutors for a view as to whether they would accept the case and press it forward. “The evidence provided was more than sufficient to justify a more comprehensive investigation,” one of the lawyers associated with the prosecution stated.
But prosecutors will also ask that Judge Garzón, an internationally known figure due to his management of the case against former Chilean dictator Augusto Pinochet and other high profile cases, step aside. The case originally came to Garzón because he presided over efforts to bring terrorism charges against the five Spaniards previously held at Guantánamo. Spanish prosecutors consider it “awkward” for the same judge to have both the case against former U.S. officials based on the possible torture of the five Spaniards at Guantanamo and the case against those very same Spaniards. A source close to the prosecution also noted that there was concern about the reaction to the case in some parts of the U.S. media, where it had been viewed, incorrectly, as a sort of personal frolic of Judge Garzón.
Instead the prosecutors will ask Garzón to transfer the case to Judge Ismail Moreno, who is currently handling an investigation into kidnapping charges surrounding the CIA’s use of facilities as a safe harbor in connection with the seizure of Khalid el-Masri, a German greengrocer who was seized and held at various CIA blacksites for about half a year as a result of mistaken identity. The decision on the transfer will be up to Judge Garzón in the first instance, and he is expected to make a quick ruling. If he denies the request, it may be appealed.
Glenn Greenwald on why we're bound by law to prosecute torture cases. (Incidentally, he also points out that a new report states that Bush officials were informed that the legal memos submitted to justify torture were slanted to fit administration policy):
The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compel all signatories -- in language as clear as can be devised -- to "submit the case to its competent authorities for the purpose of prosecution" (Art. 7(1)). And the treaty explicitly bars the standard excuses that America's political class is currently offering for refusing to investigate and prosecute: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture" and "an order from a superior officer or a public authority may not be invoked as a justification of torture" (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention's obligations.
There is reasonable dispute about the scope of prosecutorial discretion permitted by the Convention, and there is also some lack of clarity about how many of these provisions were incorporated into domestic law when the Senate ratified the Convention with reservations. But what is absolutely clear beyond any doubt is that -- just as is true for any advance promises by the Obama DOJ not to investigate or prosecute -- issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention. There can't be any doubt about that. It just goes without saying that if the U.S. issued pardons or other forms of immunity to accused torturers (as the Military Commissions Act purported to do), that would be a clear violation of our obligation to "submit the [torture] case to [our] competent authorities for the purpose of prosecution." Those two acts -- the granting of immunity and submission for prosecution -- are opposites.
And yet those who advocate that we refrain from criminal investigations rarely even mention our obligations under the Convention. There isn't even a pretense of an effort to reconcile what they're advocating with the treaty obligations to which Ronald Reagan bound the U.S. in 1988. Do we now just explicitly consider ourselves immune from the treaties we signed? Does our political class now officially (rather than through its actions) consider treaties to be mere suggestions that we can violate at will without even pretending to have any justifications for doing so? Most of the time, our binding treaty obligations under the Convention -- as valid and binding as every other treaty -- don't even make it into the discussion about criminal investigations of Bush officials, let alone impose any limits on what we believe we can do.
The panel of Bob Woodward, Kelly O'Donnell, Anne Kornblut and Howard Fineman making excuses for the Obama administration and Congress if there are no prosecutions for torture committed by the Bush administration.
Matthews: How do you read that...what he just said?
Woodward: No. In other words he's not going to, he doesn't want investigations. I mean if, first of all in some of these things, it's so ambiguous and uh, he has got to get beyond the past. He does not want to create the feeling, which in a sense this week he did create by saying he's going to close Guantanamo, that the war on terror is over. It is not over. What he said is some of the tactics, namely torture and harsh interrogation tactics are gone but the war continues and if there is a, some sort of perpetual investigation of these things the message will be we're going soft and I tell you those in the intelligence world and the military and I think Obama himself doesn't want to send that message.
Matthews: Well let's talk about the Republicans on the Hill. What are they worried, aren't they trying to hold Eric Holder's feet to the fire and say "Promise you won't launch an investigation as our new Attorney General".
O'Donnell: Well one of the problems is if they do dig back into all of these things you do lose some of the Republicans support and President Obama's trying to reach out. You also reinforce what detractors of the Bush/Cheney years already think. So there's very little political upside. And so Eric Holder has been certainly tested and they definitely, Republicans definitely want to be able to feel like they can stick with their strong principle of defense without having to worry about digging back into some of those things.
Matthews: Yeah. Anne obviously the people on the left, the netroots people, John Conyers up on the Hill, they want action. They want some kind of at least an extra-legal kind of truth and reconciliation commission like you had in South Africa that doesn't prosecute but does investigate.
Kornblut: And yet we haven't heard any signal from Obama or the White House itself that they would authorize that, encourage it. Even something that would be as sort of as benign as a truth and reconciliation commission, every indication is they want to leave that to reporters, historians. They want to move on, you know the Hill can do what the Hill can do, but they're not behind it.
Matthews: Well why did we prosecute people at Abu Ghraib for abusing prisoners if we're not going to prosecute people who may have authorized that kind of treatment?
Fineman: It is an issue. But Obama has to run the country and he and the leaders of the Democratic Party on the Hill have said "It's not worth the cost". I mean I know that Harry Reid, the Democratic leader in the Senate wants no parts of this. Whatever John Conyers is going to do on the House side, he's going to do and you'll hear a lot of noise from him and maybe some investigations. But it's not going to be backed up by the Democratic leadership in Congress. It just isn't.
(crosstalk)
Woodward: Well who would you investigate and prosecute? I mean the people who did these interrogations and so forth believed with good reason they had authority from the President.
Matthews: They had orders.
Woodward: Now you know it's too late to impeach Bush. It's over.
