Who else but Stuart Taylor? His argument seems to be that the best remedy for illegal acts of torture is to assure that (apart from some isolated low-level “bad apple” scapegoats) nobody is held responsible for them:
It’s a bad idea. In fact, President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers. (It would be unseemly for Bush to pardon Vice President Dick Cheney or himself, but the next president wouldn’t allow them to be prosecuted anyway—galling as that may be to critics.) The reason for pardons is simple: what this country needs most is a full and true accounting of what took place. The incoming president should convene a truth commission, with subpoena power, to explore every possible misdeed and derive lessons from it. But this should not be a criminal investigation, which would only force officials to hire lawyers and batten down the hatches.
Pardons would not be favors to criminals. One can argue that officials could have or should have resigned rather than implement questionable legal judgments, but there is no evidence that any high-level official acted with criminal intent.
There’s an obvious contradiction here: if there’s a great deal we don’t know, how can we be sure that nobody aced with “criminal intent?” Wouldn’t individual immunity deals, which don’t require that assumption, be preferable to blanket pardons? But more importantly, if a legal opinion from DOJ lawyers (with the collaboration of their superiors) asserting that illegal and arbitrary actions are in fact legal is all that’s necessary to avoid legal accountability for any administration member, any subsequent attempt to prevent similar abuses is a waste of time.
The key here is what Taylor identifies as the key goals of the “Truth Commission” he envisions:
Pardons would further a truth commission’s most important goals: to uncover all important facts, identify innocent victims to be compensated, foster a serious conversation about what U.S. interrogation rules should be, recommend legal reforms, pave the way for appropriate apologies and restore America’s good name. The goals should not include wrecking the lives of men and women who made grievous mistakes while doing dirty work—work they had been advised by administration lawyers was legal, and which they believed was necessary to prevent terrorist mass murder.
A criminal investigation would only hinder efforts to determine the truth, and preclude any apologies.
I have to concede that if you consider it an important priority that people responsible for arbitrary torture policies “apologize” and that we have a Very Serious “conversation” about torture, then pardons are a good strategy. If you take my view that preventing future arbitrary torture is an infinitely higher priority than people saying they’re sorry, you’re likely to think that justice and accountability are more important. All the best-conceived “legal reforms” in the world will mean absolutely nothing if a DOJ opinion can be expected to immunize virtually any action approved by an executive branch official as long as it can somehow be linked to the “dirty work” of the War on Terror.
What Matt’s missing out on is the fact that I, as of May 25, am a resident of Ohio. This makes me a Swing State Voter; indeed, as 538 notes, I am one of the most important Swing State Voters in America. Moreover, as a member of the crucial white male 21-39 demographic, I can literally command the candidates to do my bidding. If I want, John McCain will come to my house and cook me a sandwich. Barack Obama will wash my car. Bob Barr will do my laundry.
And I owe all of this to the Electoral College. Thank you, Electoral College!
I guess it’s time to go back to this from Ben Wittes:
I know what you’re thinking: If they confirm Mukasey without answers, the Democrats will once again be caving and letting the administration escape accountability. But the Democrats actually don’t have to cave here. They just have to wait a few weeks. While Mukasey cannot answer these questions before confirmation, that inability will not persist long once he takes the reins of the Justice Department. Senators can make clear that they will let him take office but will also expect him back before the Judiciary Committee within two months of his accession to address questions of coercive interrogation, that they will expect answers far more straightforward and candid than they got from his predecessor, and that they will demand these answers–to the maximum extent possible–in public session.
The Democrats have a big club to wield over Mukasey’s head to make sure they don’t get snookered: Without a strong working relationship with them, he won’t be able to get anything done. The lack of such a relationship gravely impaired both of his predecessors, albeit for different reasons. And, with only a year to serve in office, Mukasey’s clock will tick loudly from the start.
So how has the massive leverage resulting from the bizarre assumption that Mukasey would want to accomplish goals in tandem with congressional Democrats worked out?
Mukasey succeeded toady Alberto Gonzales as attorney general last fall. But the notion that he would restore independence to that post took a big hit yesterday when he refused to turn over to a House committee key documents related to the CIA leak investigation.
Mukasey may have a better reputation than Gonzales, but it turns out he is just as willing to use his power to protect the White House from embarrassing revelations.
The House Oversight and Government Reform Committee had subpoenaed Mukasey to turn over, among other documents, a report on Vice President Cheney’s interview with FBI agents investigating the leak of covert CIA operative Valerie Plame’s identity.
In a move that was mutually self-serving, Bush yesterday — on Mukasey’s urging — made what may be his most audacious assertion yet of executive privilege.
Congress’s legitimate oversight interests aside, common sense suggests Cheney waived executive privilege when he voluntarily agreed to speak to FBI agents. But Mukasey countered that with a novel argument: “I am concerned about the subpoena’s impact on White House cooperation with future Justice Department criminal investigations,” he wrote in his Tuesday letter to Bush, asking to be ordered not to comply with the subpoena.
How utterly shocking! Who could ever have anticipated that Mukasey didn’t actually need Cobgressional Democrats to accomplish his inevitable goals of obstructionism in the service of executive power?
The term “Chair Farce” is typically used in the derogatory by non-Air Force members of the uniformed military. It appears, however, that Air Force brass is trying to give the term some more substance:
The Air Force’s top leadership sought for three years to spend counterterrorism funds on “comfort capsules” to be installed on military planes that ferry senior officers and civilian leaders around the world, with at least four top generals involved in design details such as the color of the capsules’ carpet and leather chairs, according to internal e-mails and budget documents…
Air Force officials say the government needs the new capsules to ensure that leaders can talk, work and rest comfortably in the air. But the top brass’s preoccupation with creating new luxury in wartime has alienated lower-ranking Air Force officers familiar with the effort, as well as congressional staff members and a nonprofit group that calls the program a waste of money.
Air Force documents spell out how each of the capsules is to be “aesthetically pleasing and furnished to reflect the rank of the senior leaders using the capsule,” with beds, a couch, a table, a 37-inch flat-screen monitor with stereo speakers, and a full-length mirror.
The price tag? The total is a bit unclear, since the money is being taken from various different sources of counter-terrorism funding, and because the project requirements are in flux. We do know, however, that changing the color of the leather upholstery cost roughly $68000. The program has earned significant attention from the top echelons of the USAF:
Although the program’s estimated $20 million cost is nearly equivalent to what the Pentagon spends in about 20 minutes, the e-mails show that small details have so far received the attention of many high-ranking officers, including [Gen. Robert H.] McMahon; Gen. Arthur J. Lichte, the current Air Mobility commander; and Brig. Gen. Kenneth D. Merchant, the mobility command’s logistics director.
The leather and carpet color choices were made by [Gen. Duncan J.] McNabb, according to several of the e-mails exchanged by lower-ranking officers, although a spokesman for the general said those selections were McMahon’s responsibility. The e-mails state that McMahon ordered that the seats be re-covered, and one e-mail complains that the contractor “would not swap out the brown seat belts for replacement blue seat belts.” The changes delayed the project by months and added to its cost.
McMahon said he does not recall intervening on the leather color change, but said he was sure it was unrelated to the Air Force’s color. He said that it was probably because blue would not show dirt as much as tan or brown would.
Juneau’s black bears — obviously incensed by my crude loathing for needlessly large vehicular codpieces — are striking back against the innocent:
Ann Boochever had an unwelcome remodel of the interior of her hybrid car Saturday when a black bear got stuck inside.
Boochever said she and her husband, Scott Miller, were sitting in the house Saturday when they heard the horn of their 2006 Toyota Prius.
Looking out the window, they saw the car’s glass was all steamed up and the car was rocking.
“When I say the car was rocking, it was just rocking,” Boochever said.
Running outside, they saw a large black bear was trapped in the car, Boochever said.
After calling authorities, Boochever said her husband opened the rear hatchback and the bear made its getaway.
Boochever said she thinks the bear got in through a back door that may not have been closed all the way and then latched shut after it got in.
Now long gone, the bear’s presence will be felt for a while.
The interior of the car was trashed: Panels had been ripped open, the dashboard scarred, and a pile of scat left on the driver’s seat.
I can’t understand why the bears would begin trashing hybrids. Clearly, they’ve been persuaded by right wing demagogues and an uninquisitive media to act against their own better interests. Because when the world’s grotesque appetite for carbon-rich fuel drains the supply of oil, gas, and coal, don’t think we won’t start harvesting bears for their luscious, energy-rich fat.
Jesse and David say most of what needs to be said about Bruce Bartlett’s op-ed, but it’s worth saying more about one specific point. The central problem with Bartlett’s argument is its triviality and irrelevance: it’s indisputable that in the immediate wake of the Civil War and for several decades afterward the Republican Party was better on civil rights, but since this this is widely known and says nothing about contemporary politics, who cares? Presumably recognizing that persuading African-Americans to vote for people who have been dead for decades and wouldn’t be Republicans if they were alive is not a viable approach for the GOP, Bartlett tries a more recent example and the tendentiousness becomes embarrassing:
Richard Nixon is said to have developed a “Southern strategy” of using racial code words like “law and order” to gain votes in the South. Yet he did more to desegregate southern schools than any president in history.
It’s true that, because the late 60s was the high water mark of strong anti-desegregation opinions in the federal courts (led by the precedents created by the Warren Court that Nixon campaigned against) and there were a lot of holdover pro-civil rights lawyers in the DOJ, that a significant amount of desegregation took place in Nixon’s initial years in office. To claim that Nixon was responsible for this desegregation, however, requires evidence that he supported these policies and attempted to continue them. Needless to say, nothing of the sort is true. (As the fact that he appointed William Rehnquist and unsuccessfully nominated two Southern judges with segregationist histories to the Supreme Court indicates.)
As Rick Perlstein notes in Nixonland, the Nixon administration broke with previous administrations and started filing briefs against desegregation plans. Nixon’s reaction to the Swann decision (p. 604) lays out the basic strategy: talk about how the Courts have tied your hands in public, peel off Southern Democrats, and then appoint reactionary judges who will stop applying Brown aggressively.
And, of course, when Nixon got his appointments on the Supreme Court, this is what happened. In two landmark decisions with Nixon’s appointees providing 4 of the 5 votes, the Supreme Court effectively held that school systems could be separate and unequal as long as this was accomplished through tax policy and and the arbitrary drawing of district boundaries rather than through direct pupil assignment. To give Nixon credit for the desegregation policies he opposed is grossly ahistorical nonsense.
Dahlia Lithwick on the new War Powers Commission and the new FISA revisions:
Our war-powers problems lie not so much in the failure of checks and balances, but in the fact that Congress is invariably comfortable opposing wars only in hindsight. This might explain the fact that Congress’ popularity ratings dipped into the single digits last week. It doesn’t change the fact that you can’t amend a statute that tried to get Congress to consult, with another statute that tries to get Congress to consult more. In a statement last week, even Warren Christopher conceded that “it comes down to questions of congressional will … to resist funding or to limit it. …. [T]here is nothing we can do by statute that will change that.”
This leads to the second mistaken premise behind the War Powers Commission: Baker and Christopher’s bipartisan belief that the core failure of the War Powers Act lies in its poorly drafted, ambiguous language. Consider last week’s Senate vote to amend the Foreign Intelligence Surveillance Act—the 1978 wiretapping law that made one guilty of a felony if one “engages in electronic surveillance under color of law except as authorized by statute.” That language is perfectly clear and unambiguous. Indeed, it’s so clear and unambiguous that last week a federal judge had no trouble determining that President Bush had violated it.
And yet last week the Senate voted to clarify FISA again. So, now the same electronic surveillance that was illegal when the president did it six years ago will be really, really illegal. Except when it’s not. The hope appears to be that this time, the president will abide by the law because it’s clearly written. But the problem with FISA was never that it was poorly or ambiguously drafted. The problem was with an overreaching executive that disregards crystal-clear, and also ambiguous, laws in about equal measure. I am hardly holding up the War Powers Act as a model of perfect clarity. But it already had consultation and reporting provisions, and yet nobody saw fit to consult or report. So, let’s stop blaming ambiguous torture, wiretapping, and war-declaring laws for our current situation. Let’s call executive overreaching what it is.
And needless to say, the circumstances of the passage of the new FISA legislation and the fact that Congress gave away the show makes is pretty clear that tougher oversight to ensure that the White House is hewing to the new, looser guidelines is unlikely to be forthcoming.
Posner and Vermeule make a similar point in their recent book, arguing all-too-convincingly that attempts to strengthen congressional power versus the executive when anything that can be defined as war powers are concerned are highly unlikely to work. Since their normative claim that this is a good thing is far less persuasive, it’s a depressing read.
The problems with Bruce Bartlett’s pseudo-historical WSJ piece are almost too numerous to contemplate. For starters, it’s laughable for him to suggest — as he evidently does in the subtitle to his book — that the varieties of racism that guided segments of the Democratic party during the pre-civil rights era have somehow been “buried,” unless by “buried” one means “discussed prominently and uncontroversially by every credible political and social historian since the Great Depression.” But perhaps that’s a distinction without a difference, so I won’t belabor the point.
The piece contains the predictable, and highly deceptive, claim that the Civil Rights Act of 1964 Act passed as a result of “Republican” support. This argument only works by avoiding any discussion of the actual Congressional vote on the bill, which reveals a sectional rather than a party divide
over the question of black civil rights.
Southern Democrats: 7-87
Southern Republicans: 0-10
Northern Democrats: 145-9
Northern Republicans: 138-24
Southern Democrats: 1-20
Southern Republicans: 0-1
Northern Democrats: 45-1
Northern Republicans: 27-5
Bartlett’s great howler, of course, rests in the condescending argument that black voters should entertain the thought of voting for McCain as a gesture of appreciation for Calvin Coolidge’s opposition to lynching. The notion that political parties retain some kind of essential, stable (and nationally uniform) character over time — and that these hypothetical lineages should have any determining effect on contemporary voter preference — is dishonest and idiotic. If party histories carried the effects Bartlett believes they should, Sun Belt blacks, at least, would abstain from voting altogether. Which is of course precisely what Sun Belt Republicans — hailing from states like, say, Arizona — would have preferred in the first place.
Having been in Israel while the possibility of exchanging Samir Kuntar for the bodies of two IDF soldiers was being widely discussed, I had considered writing a post about the issues surrounding the transfer. Fortunately, Publius, Hilzoy, and the commenters at Obsidian Wings have made such a post unnecessary.