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The Retroactive Legalization of Torture

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That’s the effect of the Obama administration’s final determination that no official, high or petty, should be held accountable for the Bush administration’s institutionalized torture regime. Laws on the books are beside the point if it’s clear they can be violated with impunity. And while there are very real barriers to successful prosecutions that are beyond the administration’s control, the idea that there wasn’t a single torture case that was as worthy of resources as, say, steroid witch hunt cases that wouldn’t be worth pursuing even if the government actually had a case is not plausible.

Update: [PC] Related thoughts.

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  • As deplorable as this is it is not surprising. Absent a radical revolution changing the state, few governments in the world ever try officials of previous administrations for human rights violations. So where you have trials are places like Germany, Rwanda, and Ethiopia where the previous regime has been overthrown and completely erased by violent force either foreign or domestic.

  • Now, now, you are just acting like an anti-Obama troll. I bet you voted for Ralph Nader.

  • As the Democratic platform rightly notes, “American works when everyone plays by the same rules.” We should try doing that.

  • DrDick

    This seems to be part of a larger depressing trend that the rich and powerful are never brought to account. There is this, the failure to investigate the Bush administration’s misdeeds, and the fact they nobody has been prosecuted over the gross financial malfeasance that created the economic collapse.

    • losgatosca

      +100,000

      Accountability is for folks who lose their jobs and can’t pay their mortgage.

  • Uncle Kvetch

    Our long, slow slide into Putinism continues.

  • c u n d gulag

    Stare decisis.

    Nixon was pardoned by Ford.

    The Reagan and Bush Crime Syndicate memebers were all pardoned by “Papa” Bush on his way out the door, so there was little Clinton could do except mount some “show trials.”

    And I guess President Obama is hoping for a pass for any continuations of Bush’s War Criminal activities.

    And boy, will HE be surprised when the next Republican President tries to make him the scapegoat for ALL of the heinous post-9/11 activities!

    Hey, Clint Eastwood already accused Obama of invading Afthanistan.

    And I think we can all pardon his mistake.
    He knew that SOME President invaded that country – and Obama was the closest one to Tampa that he could find.

    • Bruce Baugh

      Honestly, I wouldn’t be the slightest surprised to see the next administration prosecute Obama officials for war crimes. It’s not like consistency has been an issue for them, or the last few generations.

  • rea

    One thing worse than not trying these people would be to try them and lose. We can be fairly confident of the applicable law, but what a jury would do with it I don’t know.

    • c u n d gulag

      Very good point.

      • c u n d gulag

        “As usual” – I might add.

    • Scott Lemieux

      One thing worse than not trying these people would be to try them and lose.

      This is not, in fact, obvious to me. I think this is a problem with the financial prosecutions, in which appellate courts could use creative prosecutions to wreak all kinds of mischief. But I don’t see how a not guilty verdict could make the precedent worse.

      • Marc

        Does whether there is a prosecutable case matter at all? It’s entirely possible that the Bush admin investigations made it impossible, in a practical sense, for a case to be successfully prosecuted.

        I don’t expect anything but hackery from Greenwald, so it would be very useful to know from you whether the DoJ made a good argument for why they couldn’t prosecute these particular cases.

      • Njorl

        The only way I see it happening is that a prosecutor cogently proves his case and the jury nullifies it. It would set a precedent (not a legal one, but a precedent nonetheless) that you can’t convict someone for torturing an unpopular enemy.

        Essentially, when it comes to trying people for torture, the whole US is analogous to the Simi Valley jury pool for the trial of the police who beat Rodney King.

      • “But I don’t see how a not guilty verdict could make the precedent worse.”

        Yup, and it’s useful to remember just how far down the rabbit hole we are here. These specific cases are where they went beyond the rules that the Bush Administration established to try and legalize torture in the first place, and those new rules were created because the CIA people doing the torturing (which, it must always be pointed out, yielded no useful information) were terrified that they’d be the ones to swing when it all came to light. They didn’t want to be prosecuted while their bosses trotted off with nothing more than a confidential letter of reprimand, so the bosses came up with justifications for all kinds of things short of “organ failure”.

        With this decision, exceeding even those dubiously legal rules has been rendered beyond the reach of even charges being filed. The next time, and there will doubtlessly be a next time, the torturers will start with full confidence in perpetual immunity instead of even a little bit of fear that someone might end up having to go to trial for breaking the law. It’s not surprising, but this is the Obama crew making things undeniably worse than they already were.

        • Ed

          The next time, and there will doubtlessly be a next time, the torturers will start with full confidence in perpetual immunity instead of even a little bit of fear that someone might end up having to go to trial for breaking the law. It’s not surprising, but this is the Obama crew making things undeniably worse than they already were.

          This.

      • Interestingly, the civil cases arising out of the Madoff– not the claims against Madoff directly, but against the institutions that “invested” or audited the the funds seem to mostly be settling, notwithstanding the attenuated liability. What would a jury do with them? Hard to say, given the complex nature of the cases. What would a jury do with a war crimes case? Likewise, very hard to say, even if we assume that the cases would be tried by a jury, and not by some sort of ad hoc tribunal. My point in comparing the two is that both are complex, controversial matters, and in one the professionals who have assessed the likely outcome have determined that the likelihood of of an adverse verdict is high enough to merit a negotiated outcome. I have to believe that both DOJ and Justice have assessed the probable outcome of war crimes trials and determined that it would be too politically toxic to risk.

      • But I don’t see how a not guilty verdict could make the precedent worse.

        You don’t see how having an actual legal decision declaring the actions not to be a crime could make things worse than leaving the question open-ended?

        Scott, let’s say you’re a criminal. Would you rather be acquitted, or have the prosecutor decide to take no action at this time?

        • Scott Lemieux

          A murder acquittal does not create a precedent that murder can’t be prosecuted. An appellate decision that torture homicides aren’t illegal would be a problem, but I see no reason to believe that this would be an issue in every case. (Where torturers were acting under the Yoo guidelines, this would be more of a problem.)

          • A murder acquittal does not create a precedent that murder can’t be prosecuted.

            By the same standards, a decision not to prosecute torturers does not retroactively legalize torture, despite your headline.

            But, of course, you weren’t talking about the creation of a legally-binding precedent, and neither was I. We were both talking about the de facto consequences on our legal and political culture.

            • We you fight sometimes you lose. That is not a reason not to fight.

              • Hogan

                When you fight sometimes you win. That is not a reason to always fight.

              • The metaphor of a fight isn’t quite apt here.

                When you fight, sometimes you lose. I fought that guy, and my nose is bloody.

                You’ll notice, what I wrote wasn’t about Eric Holder getting his nose bloody. Rather, it was about the threat of torture becoming more likely.

                A better metaphor would be that of a general ordering a charge: “When you order men to fight, sometimes you lose men.” Or “when you order men to fight, sometimes you lose ground.”

            • Jay B.

              We were both talking about the de facto consequences on our legal and political culture.

              Yes, what could happen! Oh! Could you imagine?! The hypotheticals — that people could literally get away with torture — is almost too much to bear. How would we as a nation survive?

              Or you know, not hypothetically, right now, the de facto consequence of allowing torture because we’re “looking ahead and not back” is that the rule of law is meaningless.

              • Scott Lemieux

                Right. What happened is that nobody was held accountable for torture. How an acquittal would make this worse is, to put it mildly, unclear.

                • I’m genuinely surprised that you don’t get this.

                  Not that people disagree with me about the significance of the threat or its applicability, but that you, and others, don’t even understand what it is.

                • djangermous

                  Not that people disagree with me about the significance of the threat or its applicability, but that you, and others, don’t even understand what it is.

                  It must be torture for you.

              • The hypotheticals — that people could literally get away with torture

                No, that is not the hypothetical.

                • Rea gets it.

                  I’m genuinely surprised, not that this point is controversial, but that it went completely over the heads of so many people.

      • patrick II

        I agree, and would agree even more whole-heartedly if I trusted our media to do any kind of coherent reporting on the trial.
        It would be wonderful if subpoena power could be used to expose documents that brought to light all of the fraud and economy wrecking that has been done in the name of profit. But it would also be complicated, and I doubt the ability or motive of most of our media to explain the modus operandi. I have full faith in others to try (Krugman, Taibbi, etc.), but I also have faith in those who would muddle.
        One of the things a fair trial is supposed to do is to bring evidence to light, but I doubt if our media is up to the task of explaining complex issues that may not be for their own good.

    • I disagree. It seems to me it’s even more lawless to suggest that such things won’t even be seriously investigated and prosecuted, and there is stigma of prosecution. Also, defending yourself from a criminal suit is costly. Not to mention that a jury being uncertain cuts both ways – it could lead defendants to try to make a deal which could include testifying against others, making their prosecutions somewhat more likely.

      • wjts

        I would argue that G. Gordon Liddy, Oliver North, and John Poindexter all provide good counter-examples to the idea that some sort of “stigma of prosecution” would attach to any member of the U.S. torture regime who was taken to court.

        • Right, There’s no guarantee, and I didn’t mean to suggest there is. And even if there’s a guarantee that no stigma would attach, there are still plenty of costs, which I mentioned.

          That said, these examples are interesting. Two were actually convicted, the third was convicted but it was reversed. (The difficulty with North’s trial happened in part because the congressional inquiry screwed up the case.)

        • ploeg

          Of course, Liddy and North have their careers outside of government and Poindexter and Abrams found their way back into government under Bush. So in the end, prosecution would not be nothing, but its utility is limited insofar as one party holds that prosecution is political persecution and treats the prosecuted officials as martyrs.

        • gocart mozart

          They would become right wing heroes, become “defenders of the American Way” against the tyrant Obama, get their own show on Fox, etc.

      • Barry

        I agree. It’s amazing how many people are soooooo concerned there might be a (gasp!) unsuccessful prosecution or two.

        • What’s amazing to me is how people can fail to understand the significance of an acquittal.

          It isn’t just that the accused walk; it is an official act declaring them, and their actions, not to be criminal.

          • ploeg

            OJ Simpson can back you up on that.

            The effect of an acquittal depends on who you ask.

          • Paul Campos

            A jury verdict isn’t a precedent in the legal sense of the word. The logic for not bringing prosecutions in this instance is the same as that which would argue for not bringing criminal charges against KKK terrorists in the Jim Crow south.

            • Establishing legal precedent wasn’t my point.

              I’m thinking about this on the level of the political fight we are still engaged in over the use of torture as policy. Sadly, you, Obama, and I are not the majority on this question.

              I’m worried about what an acquittal would do to the public’s perception of torture, of prosecuting torture, and of the people who support prosecuting torture. “Those CIA heroes are the real victims here. They had to endure a bogus prosecution by their own government!”

              • Jay B.

                I’m worried about what an acquittal would do to the public’s perception of torture, of prosecuting torture, and of the people who support prosecuting torture.

                Even by your standards of making stupid arguments to justify the Administration’s unjustifiable actions this doesn’t make any sense, at all. The difference between acquittal and not-prosecuting them to begin with is nil. Either way, the signal is that torture is acceptable.

                The public is in favor of torture. The Administration is either too chickenshit to support the rule of law, or they too agree that torture is OK. It really is that simple.

                • Even by your standards of making stupid arguments to justify the Administration’s unjustifiable actions…

                  Zzzzzzz….

                  Knock that shit off, captain prick, and I might read the rest next time.

                  There is zero possibility of anything useful coming out of engaging with you. You made that clear right off the bat.

                • Stag Party Palin

                  Because Joe doesn’t agree, we don’t get it. Just for the record, Joe’s argument bites. It’s one of his least convincing, and that’s saying a lot.

                • I don’t know whether you get it or not.

                  The numerous commenters who restated my argument inaccurately don’t get it.

                  You don’t seem to be willing to stick your neck out far enough to even try to discuss my argument, so I couldn’t say one way or the other whether you failed to follow it.

                • From below:

                  hurt someones feefees and cause – gasp – controversy

                  Nope.

                  Whoosh.

            • Lee

              I think there is a political logic not to bring charges in this case. After Watergate, certain members of the Republican Party kept looking for a similar scandal to peg on the Democratic Party. The quest continues to this day.

              If the Obama adminsitration decided to bring charges against the Bush administration than the GOP would start looking for away to accuse the Democratic Party of something similar. This would be true whether there are aquittals or convictions but it would be worse with convictions.

              Another factor is that there was near universal revulsion to Watergate. Nixon crossed a line that revolted even some of his most diehard supporters. Its a much more partisan atmosphere today. Bush and still have lots of supporters. The Obama administration might have thought that prosecuting people for torture could have some rather negative side effects on the body politic.

              • firefall

                Yes, but you’re missing one point – the Republican Party will do this anyway, whether the Obama adminstration went forward with prosecutions or not. They’ve abandoned all sense of equity, of responsibility, of restraint, in favour of partisan excess a l’outrance

                • LeeEsq

                  I’m pretty sure Obama knows this. The political harm doesn’t come from Republicans. It comes from pissing off Democrats and Democratic-leaning independents who still believe in equity, responsibility and restraint. And their a lot of them.

    • Barry

      “One thing worse than not trying these people would be to try them and lose. We can be fairly confident of the applicable law, but what a jury would do with it I don’t know.”

      Why?

      • rea

        Why?

        Well, juries are unpredictable, particularly in cases with a political element, and any attempt at prosecution is going to lead to a huge political tumult. The victims in these cases are not going to come across as particularly sympathetic, either.

        • Stag Party Palin

          Forgive me, rea, but your argument is the spineless one. We complain a lot about the Democrats not pursuing the right thing, but anyone who says we shouldn’t try these guys because it might hurt someones feefees and cause – gasp – controversy, well, isn’t that just the same?

  • Tosh

    People, people, people.
    Can’t we just keep looking forward? Let the past alone. What’s done is done. Let’s just move on. Don’t cry over spilt milk. “the moving finger writes and having writ moves on”. Haven’t those interrogators suffered enough? So a few eggs were broken look at that wonderful Iraqi/Afghan omelet.
    Besides, we don’t want the President’s drone program examined in some later administration now do we?

    • firefall

      I believe the actual quote is, “the moving finger writes, pauses to flip you the bird, then cruises off to Florida for some R&R”

  • Cody

    Seems to me Obama did some quick political cost calculations, and realized how much pain would be brought down on him trying to prosecute the previous administration.

    Imagine a BLACK man prosecuting a WHITE man for crimes!?!? Every Republican voting member would be rallying and whipping up votes until the election.

    No matter who was prosecuting or being prosecuted, our totally non-biased media would trip over itself portraying how Obama took the unprecedented step of trying to put his political “rivals” in jail. Dictator Obama, here we come!

    • Marc

      Yes, there is the obvious prospect of tit for tat prosecutions. And the practical case (e.g. Iran-Contra) that these efforts could massively backfire. Alan West took abuse allegations and parlayed them into a Congressional career. Ollie North ended up with a nice talk radio gig.

      • Bill Murray

        so they shouldn’t do anything because the Republicans might not be fully cowed?

        • Cody

          Well, I would argue he shouldn’t do anything until his 2nd term starts. But obviously these have been resolved already, so that isn’t what Obama has in mind.

          I won’t say what he’s doing is right – but I will say what he’s doing is politically best for him. Obama is a shrewd politician, and I’m sure the first thing he thought was “how would this effect me politically”.

          Then again, what’s the worse Republicans can do? filibuster everything?

          • rea

            Obama is a shrewd politician, and I’m sure the first thing he thought was “how would this effect me politically”.

            Well, he may well have asked, “how would this effect opposition to torture politically?” Politics isn’t always just about narcissicism.

      • Much as I like reading Greenwald’s screeds, this is, unfortunately, the ugly truth.

        Prosecuting Americans for war crimes violently strikes against the public’s self-conception of America as the heroic, selfless leader of the free world. Questioning that sets off too many other questions, and it becomes far easier to blame the prosecutors as hacks and their supporters as anti-Americans. I note that Greenwald, the most consistent journalist hitting this beat, now writes his material from a British newspaper. Any American fighting a “War on Terror” related prosecuting won’t fail to point that out.

        I do blame the Obama administration for their lack of courage. But I blame the general public a great deal more for making the idea of prosecuting Americans for war crimes into an almost superheroic act of courage.

    • No matter who was prosecuting or being prosecuted, our totally non-biased media would trip over itself portraying how Obama took the unprecedented step of trying to put his political “rivals” in jail.

      This seems to be a problem that diminishes with time. The more time there is between the events and the prosecution, the less likely it is to look political.

      There is no statute of limitations for the people who ordered the torture. A future administration, that can’t in any way be described as the Bush administration’s political rivals, could take up torture prosecutions at any point.

      • david mizner

        And that often happens in other countries — Argentina recently convicted two generals(Reagan’s buddies) for crimes committed during the Dirty War, including baby harvesting.

        But I can’t see that ever happening in the United States, unless a party other than the Democrats or Republicans take control. A prosecution of Republicans would also implicate (or at least humiliate)Democrats, like Nancy Pelosi, who raised no objections when she was briefed on water-boarding in 2002.

        • But I can’t see that ever happening in the United States…

          Because our political culture is less reliable on the rule of law than countries known for military coups and the use of torture on a level thousands of times more common? I just don’t share your pessimism.

          A prosecution of Republicans would also implicate (or at least humiliate)Democrats, like Nancy Pelosi, who raised no objections when she was briefed on water-boarding in 2002.

          Again, a problem that diminishes in time. (Also, you’re repeating a discrediting claim invented by the implicated CIA officials and pushed by the torture-supporting Republicans. The schedule of the briefings they claimed took place was shown to be impossible, remember?)

          • david mizner

            Well — and this is a genuine question — when has an American president prosecuted senior officials in a previous administration?

            • Never; then again, when has an American President acted as egregiously outside the law as Augusto Pinochet or Carlos Menem?

              Not even Bush’s crimes rise to that level.

              • Bernard

                wow, what a comment about Menem and Pinochet. Taht Bush wasn’t as bad as the two! Gosh, i can die happy now, knowing Bush was better than someone else.

                thank you Jesus!

              • firefall

                I’m not sure I’d even go along with you on Menem, I’d say the Bush regimes war crimes were actually worse than anything Menem perpetrated.

                • Menem has no Iraq War on him, so there’s that.

                  I was thinking just along the lines of police state and torture.

  • Snarki, child of Loki

    Just use extraordinary rendition to send the war criminals to the International Criminal Court.

    The ICC normally doesn’t get involved in trying people from non-signatory countries (like the US) *unless* that country has conspicuously failed to hold such criminals to account. Like the US.

    I think that Bush, Cheney and Rumsfeld will look quite fetching in orange jumpsuits, don’t you?

    • rea

      Nope–one of the first things GWB did was to opt out of the ICC

      • Snarki, child of Loki

        read paragraph 2 above

        • rea

          Wikipedia says:
          The Court can generally exercise jurisdiction only in three cases, viz. if the accused is a national of a state party, if the alleged crime took place on the territory of a state party or if a situation is referred to the Court by the United Nations Security Council.

          Note: (1) the US is not a state party, (2) Iraq is not a state party (although Afghanistan is), and (3) the UN Security Council is unlikely to refer such matters to the Court (particualrly in light of the US veto).

  • Joshua

    Holder has just been the worst. Outside of the rearming the Civil Rights Division, has the DOJ done anything worth a damn the past 4 years?

    • Marc

      Have you bothered to follow the challenges to the vote suppression laws, for example?

    • wjts

      Worse than Mitchell, Meese, Ashcroft, Gonzales, or Mukasey?

  • Holden Pattern

    Whatever. Doesn’t matter. Romney would be worse, so all good liberals should hold their noses, vote for Obama and by that vote ratify and legitimize this decision.

    • Cody

      You’re right, we should vote for Romney. That way we can go back to torture, and we won’t be upset by the lack of prosecution anymore.

      We probably won’t have time to any ways, being water boarded for being Commies and all.

      • david mizner

        I’d be peachy if somewhere along the line a journalist asked Romney about his past support for torture and whether or not he plans to undo Obama’s executive order banning it.

        • Amen.

          • Anderson

            Oh, he’d just toss off some line about “protecting America by whatever means are necessary, because nothing is more important than keeping our country safe.” He might even improve in the polls after that.

            The fantastic notion of Some Reporter Asking the Really Good Question and Exposing X as a Fraud is entertaining, like which president would win a knife fight (Jackson, duh), but that’s all it is.

            • david mizner

              Fair enough, tho my point is that this could and should be an issue in the campaign, although yes, a reporter’s question wouldn’t be enough; it would require that the Obama admin cares to highlight it.

            • I get what you’re saying, but that is exactly why the specifics of Obama’s ban are useful. He can’t just toss off vague language, if the reporter follows up. “So, does that mean you would undo the order and allow”….reads from forbidden actions in the order.

              • Anderson

                I concede that the fact that *I* can think of effective ways to deflect the question (“like I said, I will defend America by ANY means necessary”), does not mean that Romney would necessarily be slick enough to do it.

                Easy to overestimate, he is.

                • At the same time, I concede that the fact that *I* can think of effective ways to aske the question does not mean that anyone in the corporate media would necessarily be professional enough to do it.

    • Marc

      I guess that we should let Greenwald and company be judge, jury, and prosecutor. It’s simply not possible that there couldn’t be sufficient evidence to actually convict the people that they’ve demonized.

      And it makes total sense to ignore the actual changes in policy (e.g. shutting down torture as a policy) and the actual choices at hand (e.g. a Republican party that wants to start new wars and use torture.)

      Oh, and it’s even better to pretend that a new administration couldn’t ignore taboos if they were determined to do so. After all, the attitudes about torture from prior US adminstrations were obviously treated as binding by the Bush administration. And the Watergate convictions and Iran-Contra trials totally stopped lawlessness in future governments.

      • And it makes total sense to ignore the actual changes in policy (e.g. shutting down torture as a policy) and the actual choices at hand

        I love people who are so passionately, genuinely opposed to torture that it doesn’t matter to them whether or not the government is actually torturing people.

        • Joshua

          What’s to stop the Romney administration from starting the program up again?

          I’m glad that Obama shut down the program, I really am. The problem is that torture shouldn’t just be a policy choice.

          • What’s to stop the Romney administration from starting the program up again?

            Losing the election.

            What was to stop him from doing so yesterday, or two years ago? What stopped Bush from setting up such a program?

            You know what would have stopped Bush from setting up the program in the first place? 1000 more Gore votes in Florida.

            I’m glad that Obama shut down the program, I really am.

            I’m glad I can get you to acknowledge this in a “…but….” statement, with just a little arm twisting. The problem is, that really should be the first thing anyone has to say about the subject of torture and the performance of the Obama administration, if they actually care about torture. Not a grudging admission one can be dragged into making to burnish one’s credibility in order to make a denunciation appear stronger.

            “Obama ended torture, but…” is how any discussion of his record in this area should begin, no?

            • Joshua

              The reason why people add the “but” is because it needed to go further. This is not healthy eating initiatives or CAFE standards. It shouldn’t be a policy choice – indeed, it wasn’t, for a long time.

      • Anderson

        The military did an autopsy and found that the Iraqi general’s death was a homicide.

        You seriously telling me a conviction’s not *possible* on that? Like, if a jury convicted, the verdict would have to be set aside as a matter of law?

        • Marc

          It may not be possible to prove that Joe Smith was the guy who killed the general. There was deliberate destruction of records; multiple people involved; and it might be difficult to distinguish between negligence and intentional homicide. Add in the “national security” and secrecy rules and it is not difficult to see how it would be quite difficult to assemble evidence that you were allowed to present in court that would also convince a jury.

          • Anderson

            Well, let’s say that Wikipedia has an account that can be supported by substantial evidence:

            The cause of his death was not generally known until February 17, 2005, when it was revealed that he had died after a fruitless half-hour interrogation, during which, contrary to U.S. policy, he was suspended from a barred window by his wrists, which were bound behind his back. News reports called al-Jamadi’s treatment Palestinian hanging torture.[7] Associated Press correspondent Seth Hettena reported that 30 minutes after beginning his questioning of the prisoner, the CIA interrogator Mark Swanner called for guards to reposition al-Jamadi, who he believed was “playing possum” as he slouched with his arms stretched behind him.

            I think that gets Swanner to a jury, in a country where the rule of law isn’t trumped by naked political calculation.

    • Njorl

      Yes, they should.

      You are never going to get anything remotely resembling progressive government until after centrist Democrats start winning by landslide margins on a routine basis. Until Republicans are forced to try to take back the center, Democrats have no reason to run to the left, nor could they conceivably do so with success.

      • spencer

        Exactly right.

        People like Holden think that Democrats will interpret the withholding of votes as a mandate to move left. But they don’t know how many votes are really there, and they don’t know how much more of the center they’d end up ceding to the Republicans if they did move left.

        When Democrats think they need every last vote to win, they are going to be very reluctant to give up anything at all in the center to chase some mythical pot o’ votes on the left. They’ll only go looking for those when they don’t feel like it will cost them anything – and that will be when they are winning by confortable margins, on a regular basis.

        It’s just human nature.

    • djw

      vote for Obama and by that vote ratify and legitimize this decision.

      If we adopt this theory of what voting means, no one with anything resembling a conscience would ever vote for anyone.

      • Holden Pattern

        Well, you might not think that’s what you’re doing, but it’s pretty damn sure that’s what the politicians will take your vote as representing, and they’ll run with it.

        Romney would be worse, it’s true, but given your binary choices, if you vote for Obama, you’ll vote for the worst of the administration as well as the best. So the Dems will take an Obama victory as a victory for the coddling of banksters and torturers and the persecution of whistleblowers just as surely as they’ll take it as a victory for the Justice Dept’s good actions w/r/t voting rights (to take one example).

        • djw

          So the Dems will take an Obama victory as a victory for the coddling of banksters and torturers

          It’s worth noting that it makes little sense to group these two things together for the purposes of this particular topic, because the constellation of policies that might be described as “coddling of banksters” are unpopular, whereas the actions described re: torturers are not. Since the administration is not made up of delusional idiots, I don’t think it’s reasonable to assume that a narrow electoral victory over an openly plutocratic robot would be interpreted as evidence that some of their most unpopular policies turned out to be popular after all. Elections have never been referendums on every single policy of an administration all at once, because that would be incoherent. All but the most delusional politicians understand this perfectly well.

        • “Romney would be worse, it’s true, but given your binary choices, if you vote for Obama, you’ll vote for the worst of the administration as well as the best.”

          This argument, which has been cropping up for a good three and a half years now, is tiresome and dumb for a lot of reasons, but “given your binary choices” is probably the dumbest and most tiresome of them all. It’s a general election, you have two choices, thus has it always been, is, and ever will be. Moreover, in this particular binary choice, the far better option is the incumbent (and thank fuck for that), so our side didn’t even have the catharsis of a non-binary choice earlier in the cycle.

          As soon as Obama won in 2008, the next chance to really reform the odious security polices got pushed to the 2015/16 nomination process. Happily, and whatever happens this November, that critical slot is wide open (both Biden and Hillary are old and have failed at it before, either might run, but neither would be a prohibitive favorite). Rather than endlessly go over whether or not losing now can be beneficial long term, I’d recommend directing your energy to finding a plausible 2016 candidate who’s rock solid on civil liberties and the like. That won’t be easy, but at least it’s not futile.

          • losgatosca

            It won’t officially be futile until after the election in November, 2016.

            The only thing that can get justice done on the torture regime will be a very skillful practitioner of the bully pulpit.

        • djangermous

          but it’s pretty damn sure that’s what the politicians will take your vote as representing, and they’ll run with it.

          I don’t care what politicians will ‘take my vote as representing’.

          I care what they’ll do in office. And Obama will do less-bad things in office than Romney. What people decide to believe that ‘ratifies and legitimizes’ is pretty meaningless.

    • spencer

      Romney *would* be worse. The only alternative to a Romney presidency is Obama. Sorry, but as disappointing as that must be to you, it’s just the way it is.

      As for withholding your vote from the Dems in hopes that they will see the light and run a more progressive candidate in 2016 … well, I would ask for an example of when that strategy has ever worked, at least as far as the Democratic Party in the US is concerned.

      • That’s not a fair criterion!

        You should ask when it should have worked…

    • Scott Lemieux

      Whatever. Doesn’t matter. Romney would be worse, so all good liberals should hold their noses, vote for Obama and by that vote ratify and legitimize this decision.

      Yes, the logic is impeccable. Similarly, when Nader threw the election to Bush in 2000, it created a progressive movement so powerful that institutionalized torture was impossible, even if the reasonable, moderate George W. Bush were tempted to do such a thing.

      • Holden Pattern

        I am fascinated by the level of loathing reserved for blunt restatements of your own political calculus.

        • …he says to the mirror.

          • Holden Pattern

            Truly, joe, just fuck off until you can find one thing that the Obama Administration has done that wasn’t the best possible thing they could have done. You’re seriously arguing downthread that “silence = ambiguity” which might mean sometime in the future something good might happen? Really?

            You’re as much a subservient authoritarian as the Republican trolls, but you just root for a different team.

            • Oh, my.

              At least you’re approaching the question with the usual rational dispassion that makes you so reliable.

        • Note that the only part of your comment which is a “blunt restatement of [Scott’s] own political calculus is “Romney would be worse, so all good liberals should hold their noses, vote for Obama”. It’s not a great restatement (more snarky than blunt). The rest expresses attitudes (“Whatever’), value judgments (“Doesn’t matter”), and an understanding of how voting works (“by that vote ratify and legitimize this decision”) which clearly Scott, and most other people, don’t share, remotely. Furthermore, plausbily underlying these projections is the theory that liberals voting against Romney would effect better outcomes. Scott is clearly responding to that, with loathing.

          So, no deep psychological insight to be gleaned about Scott, methinks.

        • Scott Lemieux

          I am fascinated by the level of loathing reserved for blunt restatements of your own political calculus.

          I can understand why you want to avoid concrete discussions of what third-party voting is supposed to accomplish, but it doesn’t change the fact that the institutionalized torture regime we deplore happened after a left-wing third party campaign threw the election to the Republicans remains highly relevant. If withholding your vote was an effective strategy, how do you explain the decision not to prosecute torturers?

      • Bill Murray

        well it created a public movement so powerful that universal health insurance was possible. While Nader didn’t actual cost Gore the victory in any more than a tertiary sense, you don’t get don’t get PPACA, CFPB and most of the progressive legislation of the last 4 years without Bush winning in 2000. You probably don’t get an Obama presidency at all, at least not in 2008. OTOH you wouldn’t have had 9-11 and the security state would probably be less pronounced and no war in Iraq

  • And even if we accept that successful prosecutions would have been impossible in most cases, a public inquiry into these practices would have been reassuring

    Really? Would it have been?

    I’m having trouble coming up with any examples of failed prosecutions that had the salutary effect you’re assuming, and quite a few cases in which they worked exactly the other way. For instance, the Roger Clemmens case. The prosecution didn’t help the anti-steroid cause; if anything, it set it back, which is why the anti-anti-steroid partisans enjoy bringing it up so much.

    • Scott Lemieux

      I’m talking about a congressional inquiry.

  • david mizner

    Very good piece at the AP, although I don’t feel this represents the nadir on civil liberties. Prosecuting Bush officials was always entirely unimaginable unlike some of his other, more active fuck-ups in the realm of detention, targeted killing, and secrecy.

  • synykyl

    Laws on the books are beside the point if it’s clear they can be violated with impunity

    There’s all the justification you need for prosecuting the torturers. Sure an acquittal could be damaging, but not as damaging as the cowardly refusal to even attempt to bring these bastards to justice.

    • TT

      Politics will always trump the law in cases like this, partly because both torture and the torturers themselves are very popular within certain influential precincts of U.S. politics, media, and the electorate at large. When even the most liberal Democrats live in mortal fear of being labelled “pro-terrorist” no matter how profound the crime being committed, you live in an environment where neither the law nor the Constitution itself are anybody’s top priority. That doesn’t make it any less sickening and disheartening, though.

    • Sure an acquittal could be damaging, but not as damaging as the cowardly refusal to even attempt to bring these bastards to justice.

      An acquittal is the end. The torturers win. Torture, as a policy, wins.

      The Obama administration’s non-actions leave the door open.

      • I think in the current political situation, you’re right. But you could imagine that an acquittal could backlash hard, esp. if the trial exposed and disseminated (again?) critical facts.

        Even now, it’s possible that if there were the appropriate institutional support, it could work out in the short term, at least. Big risk, though.

      • JohnR

        Indeed; I believe that’s enshrined somewhere in literature: “All that is necessary for evil to win is for good men to try something and fail.” I completely agree – better to do nothing and hope for the best at some point in the misty future than to try, and not succeed. Harsh political realities always trump fuzzy-minded idealist notions of “right” and “wrong”. Look where that sort of foolish thinking got Mr. M L King, for instance. Certainly none of us would want that.

        • If Martin Luther King had lost, it wouldn’t have made Jim Crow worse.

          Thinking about the downside as merely losing a fight is inapt.

          It’s not the possibility that it might not work that’s the worry; it’s the possibility of making things worse that makes a failed prosecution so dangerous.

          • Jay B.

            He was jailed repeatedly and then murdered. Jim Crow still lost. Stupid analogy.

            • It’s not about him. He still won (and, on Jim Crow, had won years before).

              Simple point that went over your head. Over and over again, in multiple points throughout the thread, even after it was already explained.

              • losgatosca

                I’ll make it brief, no matter the logic of your posts, you’re pretty much an ass.

                • losgatosca

                  I get that that’s what you’re shooting for as well.

      • synykyl

        It may prevent further prosecution for your particular criminal act, but an acquittal does not make you innocent or make your crime legal.

        But even if it did, if you are not going to prosecute torturers and murderers, than you and your legal system are not worth a damn.

        • but an acquittal does not make you innocent or make your crime legal.

          Nor does the failure to prosecute make your crime retroactively legal, as Scott claims in the headline. Of course, Scott isn’t actually making a statement about torture’s formal status under the law, and neither am I. Rather, we’re both talking about the political effect, and the consequences for future practice. In my case, I’m also thinking about the long-term hope of prosecuting the people who really need to be dealt with – the policy-makers.

          But even if it did, if you are not going to prosecute torturers and murderers, than you and your legal system are not worth a damn.

          I find this “Damn the torpedoes, the rule of law leaves us no choice, even if it is a bad idea” much more compelling than the pragmatic argument about the consequences of this decision.

          • synykyl

            You wring your hands about what might happen if a torture prosecution fails, but you have not shown that strong cases cannot be made, or that acquittals in most cases are likely, or that the consequences of acquittals are likely to be any worse than the consequences of not prosecuting at all.

            And please, don’t suggest that we trust in this, or any, administration to make those evaluations behind closed doors.

            Your “pragmatic argument” is neither pragmatic nor much of an argument. It’s just a bunch of assertions you pulled out of your ass, with some not particularly witty insults thrown in for good measure.

      • Stag Party Palin

        So, Joe is saying that the acquittal of OJ Simpson was a victory for murderers (plural) and meant that murder, as a policy, wins. Joe, the next time you look up “sophist” you might find your picture staring back at you.

        • So, Joe is saying that the acquittal of OJ Simpson was a victory for murderers (plural) and meant that murder, as a policy, wins.

          Murder is not a policy, and killing your ex and her friend is not a political stance in danger of becoming mainstreamed.

          I would accuse you of playing dumb about my argument, but I think we’ve established that you aren’t playing.

          • Stag Party Palin

            If I played dumb with your argument, it would raise your argument’s IQ by about 50 points.

            • You come on here, you try and fail to restate my argument several times, and then you tell me I’m dumb?

              Er, ok.

      • Grant

        Torture as a policy has already won. The programs might be shut down (but I sincerely doubt that), but by not prosecuting, there a lurking tacit official approval.

  • Tracy Lightcap

    Ah, but it is the laws on the books that are the problem here … and the solution.

    The difficulty with the prosecutions don’t stem only from the kinds of evidence available or from the failures (we’re sure that’s what they were, are we?) of initial investigations. The bigger question stems from the faults in the US Anti-Torture Statute (no mention of cruel, inhuman, and degrading treatment, a definition of torture inconsistent with international law) and, especially, in the Torture Victims Protection Act and the Alien Tort Claims Act. By not allowing victims of torture by American agents overseas to sue their torturers, we make the entire context of a wider criminal prosecution for torture implausible. By not including Common Article 4 definitions and prohibitions in the Anti-Torture Statute we make prosecution of offenders dependent on the Catch 22 that Scott correctly mentions. In short, focusing on the prosecution of the operatives under laws that make it damn near impossible to do it successfully misses the main point, imho.

    What we need to do is amend the laws, particularly to allow foreigners to sue their torturers in American courts. I know to some this looks like small potatoes in comparison to the magnitude of the offenses involved; it looks that way to me too. But if you want people to stop doing something you have to pass laws that put both their freedom AND their money truly at risk. That’s where I think the effort – and it won’t be easy – to back away from torture should start

  • Barry

    Tracy, IANAL, but I find it hard to believe that US law and precedent don’t cover *any* torture of prisoners. Some, yes, but not all.

    And even the more so since US law (IIRC) has ‘torture’ as an aggravating factor which can justify the death penalty under federal law. That has *got* to have been litigated.

    • Anderson

      Well, when your interrogation actually *kills* the prisoner, I think there’s some old law on the books that might possibly cover that.

    • Tracy Lightcap

      Barry and Anderson:

      Ah, would that it were so. But problems abound.

      1. All of the torture took place overseas and was covered by Scott’s Catch 22 to boot. That means that trying the cases in our courts, given the lacunae in our laws, would be quite difficult. Even if a death was involved? Well, yes, even then. Remember, most of the deaths took place in war zones and involved either military personnel or agents working in military prisons. That means that the acts themselves would fall (usually) under martial law. No prosecution in such cases unless the commanders in the field decide to let prosecutions go forward. And, it’s worth remembering, many did, albeit not for the deaths that we know of. Of course, many of those courts martial rendered decisions involving quite light punishments.

      2. The places where the writs might run are places where the tortures were covered under the memos. There really isn’t any way out of that. Some above have said that we could go after Cheney and co. Problem = the OLC memos cover them too.

      3. The only venues that might work would be international. The conventions provide that if countries don’t punish torturers they can be prosecuted in other signatories territory, provided they are dumb enough to go there. I’ve noticed that all the usual suspects have stayed close to home and will probably continue to do so.

      4. Soooooo … change the laws. Now. The prosecute the next crowd of torturers to the limit.

  • Barry

    Not aimed at any one person, but I don’t accept the honesty of an argument which looks at zero prosecutions, and excuses that under the theory that *some* prosecutions would have been difficult.

    • Tracy Lightcap

      Barry,

      This has less then nothing to do with the “honesty” of arguments; it’s a matter of law. As you might have noticed, the law often works in ways we would not prefer. When that happens, as it has here, complaining about it usually does just about nothing to change the results. You want – I sure do – prosecutions of high officials for instigating and, in at least one instance, planning tortures of “detainees”? Change the laws to make it possible. As things stand now , both the faults in the law and the practical exigencies of prosecution make such a course, even if taken, a sure loser. And litigating this question only to have a court somewhere uphold the memos and free the defendants – a virtually certain result – would be a disaster. This is an institutional problem and we need to get the ground rules corrected to make it go away.

      Btw, while it is true that the Abu Ghraib scandal did not lead to prosecution of anyone senior, other incidents involving tortuous conduct (threatening people with firearms, beating detainees, act.) in both Afghanistan and Iraq have been prosecuted against non-com and commissioned officers. Under the UCMJ, however, and, with a couple of exceptions, not much in the way of penalties, of course.

  • Barry

    (and yes, some schmucks were prosecuted for Abu Ghraib; the prosecutions were against people who were squad leaders or lower in rank – and only after they made some sort of prosecution mandatory. Zero senior sergeants and zero officers, junior or senior, were prosecuted)

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