Bipartisanship And Truth

by: Paul Rosenberg

Wed Nov 26, 2008 at 15:30

The opposition to Mr. Brennan had been largely confined to liberal blogs, and there was not an expectation he would face a particularly difficult confirmation process. Still, the episode shows that the C.I.A.'s secret detention program remains a particularly incendiary issue for the Democratic base, making it difficult for Mr. Obama to select someone for a top intelligence post who has played any role in the agency's campaign against Al Qaeda since the Sept. 11 attacks.

then invokes critiques of this passage by Billmon and Digby, continuing:

to object to someone like Brennan -- who advocated and defended the Bush administration's rendition and "enhanced interrogation tactics" -- is hardly the same as objecting to anyone who "played any role in the agency's campaign against Al Qaeda."  And Andrew Sullivan made a related point about an AP article by Pamela Hess which contains this wretched sentence:  "Obama's advisers had grown increasingly concerned in recent days over Web logs that accused Brennan of condoning harsh interrogation tactics, including waterboarding, which critics call torture."  As Sullivan notes:  "no sane person with any knowledge of the subject disputes the fact that waterboarding is and always has been torture. So why cannot the AP tell the truth?"

Indeed.  Jimmy Carter asked, "Why not the best?"  Why can't Obama--and all of us--ask, "Why not the truth?"  He wants bipartisanship?  Fine.  But why must bipartisanship require lies?  And not just individual ones, but the whole Orwellian package that makes truth-telling virtually impossible?  Why can't Obama simply and straightforwardly link the two together? Like this:

"We need to begin a new era of bipartisanship and truth."

What's wrong with that?

Of course we know what's wrong with that: it would mean an actual and fundamental break with Bushism.  And not just Bushism, but all the long sorry history of Democratic acquiessence and enabling as well.  A lot of people would have egg on their faces.  And some people could go to jail. It would be a real repudiation of the failed politics of the past.

Of course, there's a deeper level to this.  Honesty going forward requires honesty looking back.  And Glenn gets to this in short order, taking note of the latest blanket Nuremberg defense:

Behold the excuses which former Bush DOJ lawyer and current Harvard Law Professor Jack Goldsmith offers up today in The Washington Post on behalf of his former colleagues, as he argues not only that Bush's torture regime shouldn't be criminally prosecuted, but also that no new investigations of any kind -- including by Congress or an Executive branch truth-finding Commission -- should be pursued:

Yet another round of investigations during the Obama administration, even by a bipartisan commission, would exacerbate this problem. It would also bring little benefit. The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.

Walk into any criminal courtroom in the country where a convicted defendant is pleading for light or no punishment and that's exactly what you'll hear:  "I've already been punished enough, Your Honor.  My reputation has been ruined, my health is suffering, I lost my job.  What more do you want to do to me?"

Greenwald goes on to conclude:

Goldsmith's principal point is that we will all suffer if further investigations are pursued against these high government officials, because government lawyers will "become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment."  Actually, the reason we have criminal laws and punishment for violations is precisely because we want to deter lawbreaking and incentivize people to obey, not flout, the law.  Government lawyers should be cautious, not reckless, in advising what can be done.  In a country that lives under what we once adorably called "the rule of law," the solution -- if we want government agents to be more aggressive in their "counter-terrorism" behavior -- is to change the laws to allow that more aggressive action, not to create, as Goldsmith and so many others favor, a system of justice where Executive branch officials are literally free to break our laws with impunity.

Now, the standard Versailles narrative says that anything like this is not just impossible, but unthinkable.  Any form of legal accountability would be retribution. (Note: not "seen as retribution by critics".  After all, "fair and balanced" only goes so far.)  Obama must choose.  It's the only pragmatic thing to do: jettison justice in order to find what Bush would call "a new way forward."  Which is, of course, Newspeak for "the same old way backwards into the exact same moral muck as those who attacked us on 9/11."

But what if Obama said good-bye to all that?  What if he insisted on holding himself to a higher standard, and insisted that the only meaningful way to do this also required upholding the law for past violations as well?  What if he said something like this:

In order to move forward and make a fresh start, we need to have a renewed commitment to truth--and that requires truth-telling about the past as well.  We must hold those accountable who broke the law, and who lead us astray into un-American practices that have disgraced America's good name around the world.  They have done uncalculable harm to America, regardless of their intentions.  And a large part of the reason for this is because they acted in secret, and covered their actions in lies.  They must be held accountable for this--both to show that world that we are serious about our values, and to ensure that this does not happen again.

There are those who will say, "This is unconscionable.  This political revenge-seeking.  We cannot move forward together, while the Democrats are launghing political attacks."

But this is exactly backwards.  If we uphold these past violations, even tacitly by refusing to investigate thoroughly and prosecute where called for, then we will be laying the groundwork for perpetuating the same sorts of violations ourselves.  We cannot abide that.  We cannot allow anyone--within this Administration or without--to think that we hold ourselves above the law.  We must hold those who came before us accountable, precisely because that creates the demand that we be held accountable as well.  This is the only way to begin earning your trust from the very beginning.

Of course we are also sensitive to the possible charges of partisanship and ideologicl warfare.  Which is why I am placing this entire investigation and any prosecutions that follow in the hands of a Reagan-era Justice official and prominent conservative constitutional lawyer, Bruce Fein.  He will have the full support of my Administration, but he will be totally autonomous in his actions.

Bipartisanship and truth.  Now that would be change we can believe in.