What if Instead of the Nuremberg Trials There Was Only a Truth Commission?
As some liberals make the case against a Special Prosecutor, the lawyers who fought for the release of the torture memos push back and explain why prosecutions are the only response.
Representatives John Conyers and Jerrold Nadler are officially asking Attorney General Eric Holder to appoint an independent Special Prosecutor to investigate the Bush-era US torture system. But, as Politico reports, "Holder is likely to reject that request - his boss, the president, has indicated he doesn't see the need for such a prosecutor." The Democratic Leadership, particularly Obama, Senate Majority Leader Harry Reid and Sen. Diane Feinstein have pushed for secret, closed-door hearings in the Senate Intelligence Committee. Other Democrats, like Patrick Leahy, advocate establishing a Truth Commission, though that is not gaining any momentum. The fact remains that some powerful Democrats knew that the torture was happening and didn't make a public peep in opposition.
This week, Lawrence Wilkerson, the former chief of staff to Secretary of State Colin Powell came out in favor of prosecutions of "the decision-makers and their closest advisors (particularly the ones among the latter who may, on their own, have twisted the dagger a little deeper in Caesar's prostrate body -- Rumsfeld and Feith for instance). Appoint a special prosecutor such as Fitzgerald, armed to the teeth, and give him or her carte blanche. Play the treatment of any intermediaries -- that is, between the grunts on the ground and the Oval -- as the law allows and the results demand."
Wilkerson, though, understands Washington. "Is there the political will to carry either of these recommendations to meaningful consequences?" he wrote to the Huffington Post. "No, and there won't be."
As of now, Conyers and Nadler aren't exactly looking for over-flow space for their meetings on how to get criminal prosecutions going.
Officially joining the anti-accountability camp this week was The Washington Post's David Broder who wrote this gem in defense of the Bush administration: "The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places -- the White House, the intelligence agencies and the Justice Department -- by the proper officials." (For a great response to this, check out Scott Horton). Broder is urging Obama to "stick to his guns" in standing up to pressure "to change his mind about closing the books on the 'torture' policies of the past." Don't you love how Broder puts torture in quotes? I really wonder how Broder would describe it if he was waterboarded (and survived). Can't you just imagine him making the little quote motion with his hands? Broder's Washington Post column was titled "Stop Scapegoating: Obama Should Stand Against Prosecutions:"
[Obama was] right to declare that there should be no prosecution of those who carried out what had been the policy of the United States government. And he was right when he sent out his chief of staff, Rahm Emanuel, to declare that the same amnesty should apply to the lawyers and bureaucrats who devised and justified the Bush administration practices.
But now Obama is being lobbied by politicians and voters who want something more -- the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps -- or, at least, careers and reputations.
Their argument is that without identifying and punishing the perpetrators, there can be no accountability -- and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.
Obama has opposed even the blandest form of investigation, a so-called truth commission, and has shown himself willing to confront this kind of populist anger.
Thank goodness we have a president who opposes "even the blandest form of investigation"--how uncouth such savagery would prove to be. While the elite Washington press corp works hard to make sure things don't get too uncomfortable at the wine and cheese cocktail parties, some liberal journalists are also making the case against a special prosecutor (or at least the immediate appointment of one). Last week it was Elizabeth de la Vega, who made an interesting case for waiting to prosecute while evidence is gathered:
We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I'm not concerned about political fallout. What's good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed.
This week it is Mother Jones Washington editor David Corn, who comes out in favor of a congressional investigation "that placed a premium on public disclosure" or "an independent commission." Corn describes how he recently warned a Congressmember who supports the appointment of a Special Prosecutor, "That's not necessarily a good idea." Corn talks about how a coalition of groups from the Center for Constitutional Rights and the ACLU to Democrats.com and MoveOn.org have all petitioned for a prosecutor:
These liberals all want to see alleged Bush administration wrongdoing exposed. But there's one problem with a special prosecutor: it's not his job to expose wrongdoing. A special prosecutor does dig up facts--but only in order to prosecute a possible crime. His mission is not to shine light on misdeeds, unless it is part of a prosecution. In many cases, a prosecutor's investigation does not produce any prosecutions. Sometimes, it leads only to a limited prosecution.
That's what happened with Patrick Fitzgerald. He could not share with the public all that he had discovered about the involvement of Bush, Cheney, Karl Rove, and other officials in the CIA leak case... A special prosecutor, it turns out, is a rather imperfect vehicle for revealing the full truth.
[...]
Prosecuting government officials for providing legal opinions that greenlighted waterboarding and the like would pose its own legal challenges. Could a government prosecutor indict the government lawyers who composed and signed the torture memos for aiding and abetting torture without indicting the government employees who actually committed the torture? (President Barack Obama has pledged that the interrogators will not be pursued.) And could a prosecutor win cases in which his targets would obviously argue that they were providing what they believed was good-faith legal advice, even if it turned out that their advice was wrong?... Several lawyers I've consulted have said that a criminal case against the authors of these memos would be no slam dunk. One possible scenario is that a special prosecutor would investigate, find out that sordid maneuvering occurred at the highest levels of the Bush-Cheney administration, and then conclude that he or she did not have a strong enough legal case to warrant criminal indictments and trials.
The bottom line: Anyone who wants the full truth to come out about the Bush-Cheney administration's use of these interrogation practices cannot count on a special prosecutor.
Corn's advice to that unnamed Democratic Congressmember wasn't exactly well received by lawyers who have been pushing for prosecutions. Perhaps the most passionate advocate for the appointment of an independent Special Prosecutor right now is Michael Ratner, the president of the Center for Constitutional Rights.
"To argue that we should not have prosecutions because it won't bring out all the facts when taken to its logical conclusion would mean never prosecuting any official no matter the seriousness of the crimes," Ratner told me. "Right now is not the time to be backing off on prosecutions. Why are prosecutions of torturers ok for other non-western countries but not for the US? Prosecution is necessary to deter torture in the future and send a message to ourselves and the rest of the world that the seven or eight year torture program was unlawful and must not happen again. The purpose of prosecutions is to investigate and get convictions so that officials in the future will not again dispense with the prohibition on torture."
Constitutional Law expert Scott Horton says that the problems with a Special Prosecutor Corn lays out are "correct, but he makes the latent assumption that it's either/or. That's absurd. Obviously it should be both a commission and one or more prosecutors as crimes are identified."
Jameel Jaffer, one of the leading ACLU attorneys responsible for getting the torture memos released by the Obama administration agrees with Horton. "I don't think we should have to choose between a criminal investigation and a congressional inquiry," Jaffer told me. "A congressional committee could examine the roots of the torture program and recommend legislative reform to prevent gross human rights abuses by future administrations. At the same time, a Justice Department investigation could investigate issues of criminal responsibility. One shouldn't foreclose the other."
Jaffer adds, "It might be a different story if we thought that Congress would need to offer immunity in exchange for testimony. But many of the key players - including John Yoo, George Tenet, and Dick Cheney - have made clear that they have no qualms about talking publicly about their actions (Yoo and Tenet have both written books, and Cheney is writing one now)."
The bottom line, Ratner argues, is that "prosecutions will bring out facts." He cites the example of the Nuremberg Tribunals:
What if we had had a truth commission and no prosecutions? Right now we have many means of getting the facts: FOIA, congressional investigations such as the Senate Armed Services Report, former interrogators, document releases by the Executive. There are plenty of ways to get information even if it does not all come out in prosecutions. Many of the calls to not prosecute are by those, particularly inside the beltway, who cannot imagine Bush, Cheney et al. in the dock or by those who accept the argument that the torture conspirators were trying their best. This is not a time to hold back on the demand that is required by law and fact: appoint a special prosecutor.
David Swanson, who for years has pushed for prosecutions of Bush administration officials, was one of the organizers of the petitions calling for the appointment of a Special Prosecutor. "My top priority is not 'truth,'" he said. "My top priority is changing the current truth, which is that we don't have the nerve and decency to enforce our laws against powerful people."
Read more of Jeremy Scahill's work at RebelReports.com
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The program "24" was produced for a purpose. To condition the American people into excepting torture as a way of life in America and ok because America has the moral high ground, the good guys and all others the bad guys.
"Holder is likely to reject that request - his boss, the president, has indicated he doesn't see the need for such a prosecutor."
Well, evidently it takes a coward to know a "nation of cowards",
And, in the meantime, I think it's time to commit David Broder, as it's safe to rule him out as having gone completely "over the hill", so to speak.
The problem with "what ifs":
If Germany had conducted its *own* truth commission, before Dresden was bombed to rubble, it actually *could* have been a relevant first step toward justice, but Nazi Germany's society was too far gone. Here and now, I could certainly support investigating Bush administration war crimes via a truth commission which does not offer participants blanket immunity from future prosecution, and empowered to offer no promise beyond "the death penalty is off the table in exchange for full disclosure now."
Cheney's on hold with Bush's Uruguayan Realtor..........
Horton's criticism of Broder was right on target. Thanks for the link!
So far, I have been agnostic on *what type of investigation* for torture, politicization of DOJ, wiretapping, deliberate false intelligence before the Iraq war. I sense that those on Capitol Hill know that the torture accounting will lead to a laundry list as above, and that the malfeasances to uncover will be unending. However, this should not matter. Our Constitution should trump everyone's excuse for not examining torture institutionalization and violation of civil rights here and abroad. The Constitution. Everyone should be clamoring for an investigation into how the corruption of our country's foundation occurred: Everyone from Constitutional law lecturer Obama to the 2nd Amendment loving, Limbaugh loving Red staters. There is no excuse.
Our Constitution exists so that no elected President can hi-jack the government for criminal acts and deadly lies and crony enrichment. It is Bush/Cheney who made this country into a banana republic dictatorship of fear, not the people calling for truth from their government.
"[T]he current truth...is that we don't have the nerve and decency to enforce our laws against powerful people."
We don't. If Bush, Cheney, Rumsfeld, Rice, Yoo, and Bybee even need to break a sweat, I'll be surprised.
There will be a circus, they'll try and convict the Bush White House Undersecretary for Fetching Coffee, and the MSM and Washington Dems will boast that Something Has Been Done.
I resent you calling people that are justifying NOT prosecuting these war criminals as Liberals. Any LIberal worth his salt wants justice, regardless on who's involved or how far up the ladder it goes. David Swanson is a fine patriot and runs a great blog at http://www.afterdowningstreet.org/
Join! Become an activist for progress against tyranny! Bush/Cheney trials in '09.
Crimes were committed and the criminals must be held accountable.
it's mind-boggling how so few are able to wrap their brains around that one simple principle.
"Jameel Jaffer, one of the leading ACLU attorneys responsible for getting the torture memos released by the Obama administration agrees with Horton. "I don't think we should have to choose between a criminal investigation and a congressional inquiry," Jaffer told me. "A congressional committee could examine the roots of the torture program and recommend legislative reform to prevent gross human rights abuses by future administrations. At the same time, a Justice Department investigation could investigate issues of criminal responsibility. One shouldn't foreclose the other.""
Here is the process we want to pursue. Forget what the MSM wants.
..."The fact remains that some powerful Democrats knew that the torture was happening and didn't make a public peep in opposition."
If this is true, then it most certainly should be done in public. Back door sessions shield the guilty.
I don't care what party you are in, if you broke the law, you should pay the consequences.
At least that's what my probation officer says (KIDDING) but really...what a double standard!
SHEESH OBAMA, just back off on this and let the law enforce the law!
.."The fact remains that some powerful Democrats knew..."
Yes, and this is exactly why Feinstein is involved in helping to arrange the cover up.
Politico reports, "Holder is likely to reject that request - his boss, the president, has indicated he doesn't see the need for such a prosecutor."
Well too bad, Holder doesn't work for Obama he works for the United States of America. There's a reason that the Justice Department is not directed by the President. Unfortunately, this time it's Obama trying to get things into back rooms:
The Democratic Leadership, particularly Obama, Senate Majority Leader Harry Reid and Sen. Diane Feinstein have pushed for secret, closed-door hearings in the Senate Intelligence Committee.
Well, Diane, if this is true, you don't get my vote. Your actions are becoming suspect.
NO TO CLOSED DOOR HEARINGS
Whatever brings the truth out and upholds the law, that's what I'm for. I heard a commission would not accomplish this. It seems an investigation is the only way to bring out facts and uphold the law.
I don't care what Obama, Reid, and Feinstiein have to say about it!
What she said, me too.
You run tell dat, CherokeeGirl! I second that.
Umm, no, no, we don't want to prosecute the rich and powerful "just like anybody else". Joe Blow down the street only has the ability to destroy a few lives. Leaders of the country have the ability to destroy thousands, even millions. We should expect, indeed demand, more from them. They should be the first to be prosecuted for violating the laws they are sworn to uphold, and if we have any spare time and political capital left after that, we can prosecute Joe Blow.
Congress doesn't need the consent of the President to appoint a Special Prosecutor. With the amount of evidence in the public domain why not have local law enforcement play its rightful role? For if a person in Washington, D.C. waterboarded a family member over 200 times because that person thought a family member killed another family member and suspected another killing was imminent, wouldn't local law enforcement charge that person with a crime because waterboarding is llegal? It is clear when Broder and others of his ilk criticize "populist anger," they sense a threat to the double-standard of justice that holds America above the law for war crimes while allowing America to commit them with impunity. Such is the case with Iraq, where part of the rationale for waging war against a country with no ties to 9/11 and no WMD, was to condemn Saadam Hussein's "war crimes," the way he "tortured" his people, his use of poison gas against the Kurds. All this out of the mouth of men who'd meticulously planned a broad program of torture and abuse of not only so called "high-value" detainees, but an untold number of innocent people hurded into American detention centers, tortured, even murdered while in American custody. There is no "unworthy desire for vengence" here. This is a clear and reasoned call for justice. And if the President seeks a confrontation with what is reasonable to protect the powerful, he will regret having made that choice.
Only liberals want prosecution? The most articulate constitutionalist is Bruce Fein, no liberal is he. He sounds like Johnny One Note; he keeps repeating the same phrase, the rule of law.
in America no body is above the law.
if we are a nation of laws, then we have to act.
the law forbids torture. if they want to argue necessity after 911, "just following orders", or something else, they can. in court!
America has laws against torture. We have signed international laws against torture. I don't care who's involved, Dem or Repub, they need to be charged and tried.
forget who wants prosecution. the law says they get prosecuted. they can argue what they want in court. the law demands prosecution.
Correct.
Bruce Fein, who served as Associate Deputy Attorney General in the Reagan Administration, is no liberal. He's a dinosaur... a relic left over from a time, way back when... You can almost use the "once upon a time" phrase to tell about it:
Once upon a time... long ago... there were Republicans who stood for Law and Order. These were people who actually thought that prosecuting violent criminals was a good and necessary thing to do. They said things like "if you can't do the time, then don't do the crime." They were quite different from the current cult of brutality revering, criminal-worshipping sadists that Republicans have morphed into.
Bruce Fein is one of the near-extinct survivors. He's Old Skool.
But because of his outspoken opposition to torture -- and continuous outspoken opposition to all the rest of the Bush Administration lawless extremism -- media stars and pundits -- read: nitwits -- reflexively and uncritically label and redefine Bruce Fein as a liberal... as did Andrew Burt most recently in U.S. News and World Report.
http://www.usnews.com/articles/opinion/2009/04/17/debating-obamas-release-of-the-bush-torture-memos.html
People calling for accountability are Shrill. UnSerious. And Hard-Left Liberal.
(h/t: Greenwald)
OK... GREAT. We'll be happy to strip the Republicans of a mantle they've long blustered and blathered a claim to -- just like patriotism, fiscal responsibility, and morality itself -- but have never earned.
What if there was a world war with genocide, atomic weapons, gulags, thousands upon thousands of Americans killed, economies destroyed, countries emptied of jewish people and there was a Nuremburg trial. Yeah. I think it pretty reasonable and no I do not think a truth and reconciliation commission would work. Good lord lad.....
Thank you for your work and your will, Mr Scahill. We need both desperately.
As Paine noted, "in America THE LAW IS KING." It starts to look like political opportunism, or "pragmatism," has usurped the throne.
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