(Just because the oligarchy is threatening a massive theft of the remaining pittance of wealth of the middle class doesn't mean we should ignore all else--particularly the growing mass of unpunished war-crimes. - promoted by Paul Rosenberg)
America has passed another unfortunate milestone in its ever longer history of torture. The latest ex-president thinks that is a good thing, but for some without an immediate self-interest it doesn't look quite so pleasant.
In 2002 CIA agents - Americans - tortured prisoners and were videotaped doing so. In 2005 those videotapes were destroyed, and on Tuesday the five year statute of limitations for filing criminal charges in the matter expired. For a little background, here are Mark Mazzetti and Charlie Savage in the New York Times:
The key figure in the tape destruction incident was Jose A. Rodriguez Jr., the former head of the agency's clandestine service. In November 2005, he ordered his staff to destroy tapes of the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, the first two detainees held in secret overseas prisons. The tapes had been kept in a safe in the agency's station in Thailand, the country in which the interrogations were conducted in 2002.
Special prosecutor John Durham has been investigating this for years, but as bmaz notes:
The open and shut criminal case against Jose Rodriquez is gone. The clear potential for cases against the four Bush/Cheney White House attorneys involved in the torture tapes destruction, as well as the two CIA junior attorneys, gone. Same for any case against Porter Goss. Gone, and the DOJ has no explanation and nothing to say.
Given the relentless focus on looking forward it hardly seems cynical to expect the investigation to be functionally dead. Yes, the Times article notes that there still could be prosecutions for false statements during the investigation, but the original actions are now beyond the reach of the law. As bmaz implies, this also eliminates the possibility of implicating higher ups like Porter Goss and rolling up the chain of command - standard practice for prosecuting corrupt organizations like Mafia families and the Bush White House.
I know that last sentence is very shrill and all, but how unfair is it really? As bmaz' co-blogger Marcy Wheeler wrote:
Our country has spun so far beyond holding the criminals who run our country accountable that even the notion of accountability for torture was becoming quaint and musty while we waited and screamed for some kind of acknowledgment that Durham had let the statute of limitations on the torture tape destruction expire. I doubt they would have even marked the moment-yet another criminal investigation of the Bush Administration ending in nothing-it if weren't for the big stink bmaz has been making.
For more on pruning back executive power see Pruning Shears.
When bad news breaks it has become almost routine for those at the top to disavow all knowledge and let the hammer come down on those well down in the hierarchy. The pattern showed up again twice this week, and is now so common as to be almost standardized.
But the measures implemented to assist deeply underwater [savings and loans] (in the very high interest rate environment of 1980-1982) were exploited by outsiders to the industry, who acquired thrifts on extremely favorable terms. Many of them, like Charles Keating, had been previously charged with fraud or had criminal records. The resulting cohort of high-flying thrifts showed high profits and growth rates and were widely praised as proof that deregulation worked, until they crashed. It is easy to look like a winner if you cook the books. Over 1,000 executives at savings and loans were convicted of fraud, and the largest failures almost without exception involved control fraud, meaning the CEO was driving the criminal activity.
"Higher commands have to inform themselves about what's happening in subordinate command," Eugene Fidell, the president of the National Institute of Military Justice, tells Danger Room. "That's what it means to have command responsibility. You have to be aware of what's going on, take reasonable steps to inform yourself, and you can't claim ignorance."
- "How To Spot A Whitewash In Army's Death-Squad Inquiry" by Spencer Ackerman
Two familiar tunes were reprised this week, each a variation the same theme: The buck stops somewhere below middle management. In the financial world it was reported that one Jeffrey Stephan destroyed the global real estate market. Well, it was not quite that dramatic, but the store of problems being readied to dump on him was still enormous. He was supposed to review foreclosure cases, determine if they were justified and if so sign documents to that effect in the presence of a notary. He did not, and now we are seeing reports that hundreds of companies may be left holding the bag.
For more on pruning back executive power see Pruning Shears.
On Monday, Rep. Nita Lowey (D-NY) announced she would not support foreign aid for Afghanistan until she was assured that the Afghan government had put an end to corruption.
"I do not intend to appropriate one more dime for assistance to Afghanistan until I have confidence that U.S. taxpayer money is not being abused to line the pockets of corrupt Afghan government officials, drug lords, and terrorists," said Lowey, who heads the House State and Foreign Operations Subcommittee. Lowey was responding to recent reports that more than $1 billion a year are flowing out of Afghanistan to elite Afghans outside the country, and that Afghan authorities have derailed corruption investigations of politically powerful Afghans.
Lowey's statement is an understandable expression of frustration. But cutting off foreign aid now is absolutely the wrong approach for the United States to take in Afghanistan.
After several visits to Afghanistan in the last few years, Human Rights First issued recommendations to the Obama administration last year specifically recommending that the United States help train Afghan investigators on evidence collection and documentation and help Afghan prosecutors provide fair prosecutions. Current plans do just that, in addition to working with Afghan officials on improving their own detention facilities and their judiciary.
Lowey's frustration is understandable, not only because of the Washington Post's recent news stories, but also because of this report prepared for the State Department last year that reviewed a broad range of Afghan institutions and concluded that corruption is rampant and growing. Not surprisingly, thirty years of war has undermined the development of reliable and legitimate institutions, and of a judicial system able to keep corruption in check. But to keep Afghanistan from returning to Taliban rule or simply descending into chaos, the United States has an obligation to help the Afghan government develop and enforce laws that reduce corruption and improve government transparency. Given the recent reports that Afghanistan has some $3 trillion worth of natural resources it's eager to exploit, transparency will be critical to make sure the proceeds of those riches don't just get shipped out of Afghanistan like the billion dollars a year flying out of there now.
Although our NATO allies should and will be helping in this effort, the necessary "nation-building" isn't going to happen unless the United States commits to funding carefully-targeted programs designed to improve governance and reduce corruption. Continued funding can be made contingent on the acceptance and participation of Afghan leaders and institutions with this anti-corruption agenda.
Lowey is right that US aid to Afghanistan should be spent wisely, and not indirectly fund warlordsto provide security or corrupt officials to spread as graft. But the State Department and the military's Joint Task Force in charge of detention facilities in Afghanistan are just beginning their work to improve local government enough to allow the U.S. military to transition out of there. Cutting off the funding that will allow that to happen would not only undermine the development of legitimate government institutions in Afghanistan, but would make the United States' goal of eventually leaving the country that much more elusive.
It was the 40th anniversary of the shootings at Kent State, and although not heavily emphasized in the media (heavens forbid! The shooting of some DFHs 40 years ago, who cares about that?), the echoes just will not fade away....
Part 1: The General vs. The GOP
On Countdown, Tuesday, Kieth discussed the GOP's latest attack on law & order with Major General Paul Eaton, (U.S. Army, ret.), the man in charge of training the Iraqi military from 2003 to 2004. And Eaton had some refreshingly blunt--and refreshingly sharp--things to say. First, Keith sets things up, highlighting how GOP lawmakers have gone into full hysterical attack on constitutional rights mode, despite the fact that would-be bomber Shahzad has been singing like a bird:
OLBERMANN: .... Senator Cornyn of Texas is saying, quote, "If someone acts like a terrorist and cooperates with people intent on war against the United States, they should be treated as terrorists and not as a common criminal, and no, they should not be read their Miranda acts."
.... Senator John McCain said it would be a serious mistake to remind Shahzad of his right to remain silent until all the information is gathered. Congressman Peter King, meanwhile, the top Republican on the homeland security committee, telling Politico.com that he wants to know whether the Justice Department consulted with the intelligence community before they decided to hold his trial in civilian court.
Again, Shahzad, an American citizen, to which King said, "I know he's an American citizen, but still."
And Eaton wastes no time in getting down to the nitty-gritty:
MAJ. GEN. PAUL EATON, RET., NATIONAL SECURITY NETWORK: Hey, Keith, great to be here and thanks for the invitation. But I am a little surprised that we are here to defend our Constitution against a Republican senator and Republican representative's attack on it.
Last week an explosive report on the fall of a Wall Street titan was released to relative silence in large outlets. Will they give it the attention and analysis it deserves, or will the recent tendency to miss big stories reassert itself?
For more on pruning back executive power see Pruning Shears.
Shameless leaders have created a culture of impunity. Those who want accountability might need to adapt their expectations and keep an eye on the long run.
For more on pruning back executive power see Pruning Shears.
The executive branch has its very own team of lawyers theoretically dedicated to providing the very best legal advice. In practice it seems to offer more rationalization and obfuscation than gold plated counsel. What exactly is the value to the public?
For more on pruning back executive power see Pruning Shears.
Recent actions by the Department of Justice in the case of a Guatánamo detainee are more suited for the Queen of Hearts than a court of law, and the most plausible explanations are corruption or incompetence.
For more on pruning back executive power see Pruning Shears.
The damage done by the Bush administration to the rule of law occurred over a few years - relatively quickly in legal terms. Repairing it will be a much longer task, as repairing always is.
For more on pruning back executive power see Pruning Shears.
From Friday's Show, first, the liberal response from Mark Danner--what was once the standard liberal response, and then the conservative response from Bruce Fein--what was once if not quite the "standard conservative response" at least the canonical conservative response: it's the rule of law, stupid!
BILL MOYERS: The President had a press conference on Wednesday night in which he was asked two questions about torture. If you'd been there, Mark, what would you have asked him?
MARK DANNER: I would have asked him to get out in front of the country this whole debate about torture. Why it was done. Whether it really protects the country. What we've lost and what we've gained. Because I think the losses have been very, very great.
But until the country is convinced and understands how great the losses have been, and parts with the notion that torture is necessary to protect us, we still are going to be having this continuing debate about torture as a necessity to protect the country, which I think is very harmful.
BRUCE FEIN: I would have asked him, since he's agreed that what was done was torture, and that the United States criminal code makes torture a crime. And there's no national security exception, no exception if you get useful information. And because we had impeached, in the House Judiciary Committee, a former President, called Richard Nixon, for failing faithfully to execute the laws. How he can justify not moving forward with an investigation when we have a former President and Vice President openly acknowledging they authorized water boarding, what he has described as torture, is a crime.
Or in the alternative, if he thinks that there are mitigating circumstances, and there's body language suggests that, then he should pardon them like Ford did Richard Nixon. And the reason why the difference between a pardon and non-prosecution is important, is because a pardon requires the recipient to acknowledge guilt. That there was wrongdoing. There was a crime. Just forgetting and sweeping it under the rug suggests this wasn't illegal.
In Quick Hits, counterspin spotted an incredible outrage,--citing a story from The Telegraph--something we'd all expect from the Bush DOJ, but never imagine from a "progressive" Harvard Law Review Democratic President. To wit: The Obama DOJ is arguing against the position--established in a 1986 Supreme Court ruling that police may not interview suspects who have a lawyer or have asked for one.
There's just two problems. First, it appears that this isn't true. A little digging around and I discovered Patterico says it's dead wrong and various commentators on this DKos diary say it's much more nuanced question than that. I quickly concluded that I wasn't going to get certainty on this anytime soon, but that the initial portrayal was definitely mistaken, regardless of whether I agree or disagree with the actual position, once it's finally clear to me.
But that still leaves Problem #2: after trying to keep part of Bush's secret prison system going, and taking a stand against enforcing anti-torture treaties, I had no good reason not to believe this when I first read it. Sadly enough, the Obama Administration has created such an air of moral ambiguity and uncertainty that it's almost as if Karl Rove and/or Robert Bork were writing their script for them.
Rule of law, people. Once you blur that, you've blurred everything.
Nudge. Blur. It's all part of the same ill-defined, morally fuzzy universe that I, for one, want absolutely no part of. Yes, there really is such a thing as an intractable moral dilemma. And I deeply love literature--from the ancient Greeks to Josh Whedon's Dollhouse that deals with this aspect of our existence. But it's precisely because such dilemmas do exist that we want to hold on to all the moral, ethical and legal certainty that we possibly legitimately can.
After all, there is always time for mercy, forgiveness and atonement after judgment has been rendered. But if one cannot trust judgments in the first place, then everything imaginable has been made uncertain for no good reason whatsoever.
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
This is the deepest and darkest aspect of the impact of Bush-Cheney's torture program on the constitution and the future. Leave aside for a moment the policy debate over torture in the abstract. From the very beginning, that has been largely moot. Why? Because even if you believe that the president has the duty to torture terror suspects, under the constitution, he has no legal right to do so without Congress' passage of legislation repealing the laws and treaties governing such torture. The use of torture is part of the laws of war and only Congress has the constitutional authority
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water
It can't really be clearer than that.
On the flip: Sullivan goes on to spell why it can't be clearer, and then gets into the illegality of failing to investigate and prosecute torture--first by Bush, and now by Obama. After that, I cite Bruce Fein as another example of a high-profile conservative who gets it--my choice for a special prosecutor on torture, precisely because he is a high-profile conservative. And I try to elucidate the vast difference between a healthy liberal-conservative dialogue, in the context of history, and the diseased shadow-play that Obama is furthering, in which both sides undermine everything good America is supposed to stand for.
Today Obama's CIA nominee, Panetta, recanted yesterday's testimony admitting that we, the United States, rendered persons to foreign countries to be tortured. There is ample public testimony from military and CIA officials that the U.S. has rendered persons to be tortured.
The Bush administration perpetuated its torture policy by secretly ordering the use of torture while publicly proclaiming that we do not use torture as a method of interrogation. Panetta's public statement today that he has no evidence that we rendered persons to be tortured makes it clear that the Obama administration will continue the Bush pro-torture policy.
The only way, let me repeat, the only way we as Americans can stop our policy of using torture as a method of interrogation is to shed light on our past actions, admit what we have done, and work to bring to justice those who ordered the use of torture. Panetta's public denial of our past policy of rendering persons to foreign countries to be tortured will work to effectively obstruct attempts to investigate our past practices, and it will greatly impede efforts to bring those who ordered the use of torture to justice.
I take Mr. Panetta's public statements today before a Congressional Committee to be proof positive that the Obama administration is a pro-torture administration.
Last night, Glenn Greenwald appeared on Bill Moyers Journal. For those of us familiar with his writing, there was really no new ground broken. It was simply supremely satisfying to see him talking sanely with Bill Moyers for a spell.
But there was one thing that stood out for me--not a new thought, but an aptly articulated one:
GLENN GREENWALD: ...it was only once I saw how radical of a war was being waged on the rule of law and our constitutional values by this administration, justified by the 9/11 attacks, that I think that political activism was necessary....
BILL MOYERS: ...all wartime presidents expand the powers of the office. Woodrow Wilson, Franklin Roosevelt, Lyndon Johnson, Richard Nixon. I mean, there's something inherent in war and the expansion of powers. Are you saying that Bush and Cheney took it further?
GLENN GREENWALD: I'm saying they took it to an entirely different level. What we have, in the last eight years, is not merely a case of individual and isolated law breaking. It's a declaration of war on the whole idea of a law itself, on the idea that our political leaders are constrained in any way by the limitations of the American people imposed through our Congress. The rule of law has essentially ceased to exist. And that I do think is quite new.
Indeed, it didn't start with 9/11. It started with Bush v. Gore, with the utterly lawless Supreme Court decision that put Bush in the White House in the first place. But Glenn puts the problem perfectlty: "The rule of law has essentially ceased to exist." And there's a term to describe a society in which that happens. We call it a "failed state."
America today is a failed state.
The country in need of our nation-building attention today is not Iraq or Afghanistan. It's the USA.
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