Obama Won’t Close the Door on Torture Prosecutions, But We Have to Kick It Open

By Brad Porter | Related entries in Civil Liberties, Obama, Torture, Video

There was some question, with Obama’s statement on the release of the OLC memos, whether he was making a blanket declaration that there would be no prosecution of former torturers or torture-enablers, or whether he was being wishy-washy.

Today he was asked again. Wishy washy it is.

I take this as, more or less, reassuring.

It reaffirms my belief that Obama is, at worst, opportunistic, a fair weather civil liberties advocate. That sounds like damning with faint praise, and it is, but it’s also a heckuva lot better than the previous administration, for whom opposition to civil liberties was not a matter of convenience shimmying but of hardened ideology, and who took accountability as beginning and ending with an election every four years.

What Obama is indicating, and has indicated, is that he’s not particularly eager to have this matter be center stage, but nor is he particularly eager to get on the wrong side of it, and at the end of the day, he is willing to be persuaded/pushed.

For the record, that position does make clear that we should not expect Obama to take a principled, courageous stand on civil liberties. For those of us who voted for him on the hope that he would stand tall and do the right thing, because it was the right thing to do…eh, not so much. We civil libertarians have been waiting with bated breath to see what kind of a President Obama was going to be in these respects. His campaign rhetoric indicated he might have greatness in him. Some of his actions in office (continuing the Bushian line on habeas corpus, for instance) have caused us to fear that he might be a wolf in sheep’s (or a sheep in wolf’s clothing, I suppose). The reality that is starting to settle in is he’s just another politician.

However, I take his statement today more or less at face value. He is not, personally, particularly inclined towards prosecution, but he’s also more or less not willing to exert overt political pressure to close the door on it. He won’t grease the wheels, but he won’t throw up impediments either. I would certainly vastly prefer it if he were inclined towards positive action on the principle of it, but if the worst we’re going to get out of him is a blank slate waiting for the writing on the wall, I’ll take it.

Obama is clearly not going to be a messianic figure on this matter; he is not going to lead us to the promised land. But nor is he going to stand in the road with his hand to us yelling “stop”. We clearly can’t expect Obama to do the right thing. But I think we can also not expect him to do the wrong one. In that sense, this is not a “good news” sort of situation; it is an absence of bad news. And maybe that shouldn’t strike a positive chord with me, but my bar has been so lowered on civil liberties that I’m positively thrilled at the absence of bad news. At this point, I’ll take it, and it’s also worth noting that where action does hit the President’s desk, so far, his rhetoric has been mealy-mouthed but his actions have tended towards the right. That’s worth something too.

If at the end of the day all we get is immediately stopping the practice and the executive branch not standing in the way of further inquiry/action, that’s not ideal, but it’ll do pig, it’ll do.

—–

So where that leaves things is, ultimately, with the onus on us, the American public. So, let me suggest three courses of action.

The first: FireDogLake has a petition making the rounds, to be delivered to the Attorney General on Thursday. It says simply:

Given the seriousness of these crimes, we the undersigned call for Attorney General Eric Holder to immediately appoint a special prosecutor to determine if criminal proceedings are warranted for Justice Department lawyers who legalized these crimes, and the high level executive branch officials who ordered them.

I suggest you sign it.

Second, the only reason the OLC memos were released at all is the dogged pursuit of them by, more or less, a single organization, which has been in the trenches fighting the good fight for many years. I’m talking about the American Civil Liberties Union. Obama’s skittishness on this matter is a good reminder why the work they do is crucial no matter which party is in power or which way the winds are blowing. Instead of making a donation to a candidate this cycle, consider sending some help their way

And third, get candidates on record. Obama has made it pretty clear that he considers this whole thing to be a headache he’d just assume not to deal with. But he’s wrong in one critical respect: we can’t move forward until we faced our past (and hell, our present). If Congress doesn’t want to deal with it, fine, but make them put their names to that. One interesting path to that: start pushing for impeachment proceedings against John Bybee. It won’t pass, but make those f’ers vote on it.

Obama is not The One. He’s not Scott Bacula, jumping into the Presidency to right the wrongs of the guy whose shoes he’s stepping into. If we want action on this, we have to take it.


This entry was posted on Tuesday, April 21st, 2009 and is filed under Civil Liberties, Obama, Torture, Video. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

36 Responses to “Obama Won’t Close the Door on Torture Prosecutions, But We Have to Kick It Open”

  1. Brad Porter Says:

    Some more calls for action.

  2. Simon Says:

    Well that’s certainly rhetorical bomb-throwing and partisan hackery.

  3. Kevin Says:

    Do tell Simon, which and in what way? Do clarify.

  4. Simon Says:

    The part, Kevin, where Brad spends a title and about a dozen or so paragraphs pushing a partisan screed about prosecuting people who worked for the previous administration that might fit well at FireDogLake. (Which he also, incredibly, cites! If you approvingly cite FDL, you confess how far to the left you really are.) That Brad’s primary assertion that prosecution should follow is tacit – it doesn’t even appear to occur to him to ask whether, only how – makes it no better. Indeed, that very presumption makes the post even more cluelessly partisan. From the tree of that presumption, every fruit is poisoned by partisanship.

    I said before the election that an Obama victory would, without serious doubt, lead by the short or long path to prosecutions of people in the previous administration (I suggested that Obama would downplay it to appear moderate until he needed a bone to throw to his base, but that the time would come), and that if Bush had a scrap of honor, he must issue a blanket pardon for everyone in his administration for anything they did in its employ, period. That would be an awful affront to the rule of law, I noted, and deeply troubling, but it was necessary to forestall the inevitable partisan witchhunt. Brad’s post serves as an apt reminder that those concerns were entirely justifed.

  5. Brad Porter Says:

    I am a registered Republican who runs a conservative blog, Simon.

    However, I also believe that people who break the law should face the consequences of their so doing. If you commit a clear act of criminality, you ought to be prosecuted. If there is good reason to believe you committed a clear act of criminality, you should have your day in court. The fact that you are important does not make the law less applicable to you; if anything it makes it more.

    If you have laws that you don’t intend to enforce, then change the law. I am the sort of person who believes the War on Drugs ought to be repealed but would nevertheless vote, on a jury, to convict someone of running afoul of it. If you choose to break a law as an act of civil disobedience, even if for the right reasons, you still have to accept the consequences. But don’t start arbitrarily changing the rules for different groups of people based on how you “feel” at any given moment, or who the person in a position of authority (judge, jury, cop, President) deigns to feel sympathy with, or not, or what kind of mood they’re in. Because at that point, democracy, and for that matter civil society, as a whole, fails.

    If that’s “partisan witchhunt”, so be it.

  6. TerenceC Says:

    Simon

    All partisanship aside – since it cuts both ways in this instance. Are you saying there should be no persecution for the puppet masters of this show? There is quite a bit of evidence suggesting that at the very least a special prosecutor needs to be appointed to uncover the facts. Don’t you think the American people are entitled to the facts? I know I do.

    I would love to know what the hell happened with a bellicose administration that would introduce this type of behavior into our nations execution of detainee treatment. The noise is deafening on this issue from both sides, although it’s really quite a simple framework. Did the USA torture prisoners? If so, who architected the torture policy and were any laws broken in the implementation of it? Who ordered the torture of the detainees and if they knew it was wrong why did they solicit legal opinions about how to do it legally?

    I can see how one might think this was a partisan witch hunt. However, why couldn’t it also be considered our elected officials doing their jobs? Some people have said that the whole Clinton/Lewinsky thing was a partisan witchhunt – but he did in fact perjure himself and the silly truth eventually all came out. I’d like the “silly” truth to come out in this instance – it’s really important. I don’t want to see Republicans get clubbed anymore than I want to see Democrats get it, but something really stinks and we need to find out where the smell is coming from.

  7. michael reynolds Says:

    I am a registered Republican who runs a conservative blog, Simon.

    Ah hah hah. That goes in my scrap book of great Clueless Simon moments.

  8. Simon Says:

    Well, Brad, it’s nice that that’s your self-image, but revealed preference is more telling than voter registration. You’re a former Ron Paul national organizer who cites Glenn Greenwald and FireDogLake; remember, Andrew Sullivan says he’s a conservative, too, and I don’t doubt that you’re both sincere in your self-image. Sincerity doesn’t make a fact of it, however.

    I would dispute the notion that you run a “conservative” blog, too – I went over there to look at some of the posts you touted in your linkapalooza post at Donklephant the other day and it came across exactly as billed in your post: a bland, center-left blog with the occaisional deviancies out to the fringe. Not that there’s anything wrong with that, of course! But let’s try and stay in the realm of the credible when you’re going to make claims.

  9. Simon Says:

    Put another way, Brad, there were plenty of blogs that spent last week whining about the tea parties, lauding Greenwald’s distended rantings about this and that, and criticizing 10 U.S.C. § 654, but they aren’t blogs on the right of the political spectrum. People’s self-image is not conclusive of the reality; we can easily demonstrate by pointing out that my self-image is as a moderate conservative and letting Reynolds tilt at windmills to explain why, in fact, I’m deluded and in fact am way off on the far right.

  10. michael reynolds Says:

    Brad:

    Really! Who do you think you are deciding what your own beliefs are? Simon will be the judge of that. Also the judge of who you link to.

    And the judge of whether Justin is running this site properly.

    But don’t worry: Simon’s a strict constructionist. He’ll only construe based on his own opinions, never to be diverted by mere reality.

  11. Simon Says:

    Oh, and calling for Judge Bybee’s impeachment. I forgot about that little gem of lefty partisan silliness.

  12. Simon Says:

    michael reynolds Says:

    But don’t worry: Simon’s a strict constructionist. He’ll only construe based on his own opinions, never to be diverted by mere reality.

    No I’m not. I’ve never claimed to be any such thing, have disclaimed it on occaision, and have written simply oodles of posts and comments that are incompatible with or that amount to decrying “strict construction.” And that’s not surprising, given that “strict construction” is (and for about thirty years has been) a term used almost exclusively by the legally illiterate to allude to or caricature and smear various kinds of conservative jurisprudence that it rarely describes accurately.

  13. Simon Says:

    This one, for example, which approvingly quotes Justice Scalia’s brusque dismissal of “strict construction” and notes with some disdain that that “[n]either originalism nor textualism” – to which I do subscribe – “are wooden literalism, and nor are they ‘strict construction.’”

  14. Simon Says:

    Or this one, to give another example, where I explicitly disclaimed the label. Or this one, an example that would belie any claim I might make to being a strict constructionist.

  15. michael reynolds Says:

    Simon:

    Well, don’t I feel stupid. You’ve marshaled a broad array of facts to disprove a line chosen solely because it worked for a joke.

    I look forward to your learned writings on the topic: “Why I won’t take your wife, no matter how polite you are.” Perhaps you could cite Scalia’s dissent in the famous case of “Who vs. What” that formed such an important part of the great Costellan-Abbottanian conflict.

  16. John Burke Says:

    The reason why Obama and Holder will not attempt to prosecute anyone is that there was no crime committed, not by CIA interrogators, much less than by DOJ and other lawyers who were tasked to give CIA guidance as to what was and what was not legal. Whether you think harsg interroragtion of KSM was a good idea or counterproductive, effective or not, moral or not, it simply was not a crime. This is what the applicable US law — 18 U.S.C. sec 2340 — defines as unlawful “torture”:

    As used in this chapter–

    (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

    (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from–

    (A) the intentional infliction or threatened infliction of severe physical pain or suffering;

    (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

    (C) the threat of imminent death; or

    (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

    Those with the good sense to check this language against that used by Yoo and the others in providing guidance to CIA will find that the whole point of their memos was to steer the interrogators away from any action that was “specifically intended to inflict severe physical or mental pain or suffering,” as defined.

    Everything distasteful is not illegal. The role of the lawyers here was not to make decisions about how or even whether to interrogate anyone but to describe what that particular statute would and would not allow.

    If there is a charge and a trial, it will most certainly be a political show trial if ever there was one. Proving that Yoo was motivated by some sort of criminal intent, given the time and circumstances, will be impossible. For that matter, proving that there was an underlying crime in the interrogations will be impossible too.

  17. michael reynolds Says:

    John and Simon:

    Philip Zelikow . . (After studying at the University of Houston, Zelikow completed his Bachelor of Arts in history and political science at the University of Redlands in southern California. He earned his J.D. from the University of Houston Law Center, where he was an editor of the law review, and a Ph.D. from The Fletcher School of Law and Diplomacy at Tufts University. In the early 1980s, Zelikow practiced law. . . After George W. Bush took office, Zelikow was named to a position on the President’s Foreign Intelligence Advisory Board [PFIAB],. . . ) . . . says you’re both wrong.

    He says the legal rationale is bogus.

    But then what the hell does he know when compared to a pair of highly partisan bloggers?

  18. Brad Porter Says:

    Simon, I almost hate to ask, but what do you take to mean “Republican” and “conservative”?

    A Republican is by definition a member of the Republican party, as I have been since the day I turned 18. Qualification: met.

    A conservative, as I might define it, believes that sovereignty rests in the individual and not the state, and thus, where possible, the authority of the state ought to be proscribed and extremely limited. It is both an inherent skepticism and belief in the extreme limitations of the knowable, and an ingrained reflexive mistrust of expansions of (especially extremely centralized) authority in large part for that reason.

    I will certainly agree that I am no Republican of the Bush Republican variety, which in my estimation is defined chiefly by an extreme veneration of authority, but that’s me.

    The question then is whether my conservatism fails the smell test, or whether theirs does.

    To you, near as I can figure, Republicanism or conservatism means refusing to hold people accountable for their actions, a disbelief in upholding the rule of law, a desire to expand the traditional and legal definitions of the lengths that the state can go to mistreat people in its care, and not liking Ron Paul. Those are precisely the only things you’ve stood up for so far in this thread, the only things on which grounds you confidently declare me a liberal, so those seem to be, in your eyes, my chief disqualifiers. In which case, I’m not sure why anybody should take you seriously as an authority on or arbitrator of conservatism.

    Admittedly, as a person who believes in armed neutrality in foreign affairs, the inviolability of civil liberties at home, a mistrust of naked veneration of authority, a further mistrust of efforts towards social engineering, and a fiscal conservatism, I have certainly felt fairly unwelcome in Republican circles in recent years (in no small measure because of its self-appointed definers). Trollish line-drawers who deign to demand that their pet causes are the qualifiers and disqualifiers of “true” rightism, and that all the other people sitting under the tent with them who might disagree do not do so in good faith but do so because they are lunatic double agents, certainly complicates things, and are in no small part responsible for the sorry state of said right-leaning ideology and its purportedly torch-bearing party, but you wouldn’t know anything about that would you.

    (there’s your bomb-throwing).

  19. Brad Porter Says:

    John Burke:

    (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

    (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from–

    (A) the intentional infliction or threatened infliction of severe physical pain or suffering;

    (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

    (C) the threat of imminent death; or

    (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

    Don’t forget the other statutes involved. The Geneva Convention, which by Article XI of the constitution is the law of the land. The Army Field Manual, which has for many many years defined the procedures the military should take to stay in compliance of the law. And of course, the two laws passed in the last four years alone (Detainee Treatment Act, 2006; Intelligence Authorization Act, 2008) which explicitly define waterboarding and other techniques not in accord with the Army Field Manual as torture and as expressly and explicitly illegal. And this is all presuming that Bybee’s reasoning would not be found in clear violation of 18 U.S.C. sec 2340, an opinion I don’t know many legal experts who share. In fact, short of Bybee and Yoo, I really can’t think of one.

    But of course, the simplest way to interpret the law is to pass it through the judicial system, which is of course what they are for. Bybee, Yoo, yourself, et al, can have any opinion you like about the legality of something. That opinion has no direct legal weight. It does not “make” something legal because a lawyer makes the case that it is so. I can hire a lawyer for a DUI conviction who might argue that my driving over the legal limit was not, in fact, my driving drunk, because I can really hold my liquor. That interpretation of the law, however, must then pass muster through the judicial system.

    And in that respect, the mountain of precedent and case law is not very all unclear (nor, for that matter, is it very unclear when other Bush DoJ “opinions” on other facets of detention law has been tested, and overthrown in several high court decisions in the last four years alone). I wonder if you can cite me a single judicial opinion conforming with your and Bybee’s interpretation that, say, what happened at Abu Gharib, Bagram, and the like, was perfectly within the bounds of the law.

    I will, incidentally, leave aside the mountain of clear violations of the law even according to your standard. Jose Padilla and others were indeed mind-altering substances. Over a hundred detainees by some counts, but even a few dozen by the CIA’s count, have been killed due to violent interrogation, John Bybee et al declared that many of the activities they were justifying, if used over a certain limit, would indeed be torture, and we have many documented cases of that limit being exceeded tenfold. Bashing someone’s head into a wall repeatedly is usually considered “severely painful”, Bybee’s assertion that a towel around the neck changes its designation notwithstanding. Point being, even by your standard here torture has surely occurred.

    Maybe that doesn’t matter though. Maybe you’re right, and a panel of justices would find your interpretation to be absolutely correct. Maybe they’ll break with every precedent before them and steer the legal interpretation Bybee’s way. Well then, have your day in court. But because you “strongly” believe that you are in the right does not mean that prosecution is unwarranted. Look on the bright side though; you might well be vindicated!

  20. Simon Says:

    John,
    We talked about this last week. You’re certainly right that to talk criminal prosecutions, the act has to fit the statute (morally outraged declarations that “torture is torture” just don’t cut it), and your view of the statute essentially tracks the DoJ’s. Still, as will be clear from my remarks in that thread, I think you’re overstating the clarity of the statute’s threshold requirement. As I put it then:

    Although it’s clear that waterboarding isn’t severely painful, [18 U.S.C.] § 2340 speaks invariably in terms of “pain or suffering,” and at first brush, one has to wonder if these aren’t separate categories. I have no idea if that simplistic reading holds up to scrutiny … (for example, is “pain or suffering” a term of art with definite content?).

    This isn’t by any means to say that your reading is wrong – merely that text isn’t quite so clear or beyond argument as you’re suggesting.

    Also worth mentioning is that your comment makes a faulty assumption in characterizing § 2340A as “the applicable US law” (emphasis added) on which attempts by Obama and his DoJ to run this partisan withhunt will stand or fall. There may well be other statutes that can be brought into play. For example, the War Crimes Act, 18 U.S.C. § 2441, incorporates violations of certain treaties and conventions into domestic criminal law, and Obama’s prosecutors could mine the rich seam of international precedent to find ways to claim a violation justifying prosecution under § 2441. (Even for those who decry the use of foreign law in interpreting our Constitution and for most statutory interpretation cases, such as Justice Scalia and myself (see, e.g., my essay The Misguided Search for the ‘One Law – and the Ongoing Struggle to Articulate it Correctly’ (2006) (available at SSRN)), accept the legitimacy of consulting foreign cosignatory law in construing treaties (see, e.g., Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (Scalia, J., dissenting) (observing that “[w]hen we interpret a treaty, we accord the judgments of our sister signatories considerable weight” and faulting the court for failing to give adequate “consideration to how the courts of our treaty partners have resolved the legal issues before us” (citation and internal quotation marks omitted)).)

    Can a case be made for a § 2441 charge? I don’t know. I do know, however, that prosecutors can be very creative when the mood takes them (see, e.g., United States v. Turner, 551 F.3d 657 (7th Cir. 2008) (federal wire fraud charge predicated on perpetrators of an honest services fraud being paid by direct deposit)).

  21. Brad Porter Says:

    See Simon, that was a nice post. Articulate, well reasoned, non bomb-throwing.

    You should try treating everyone with whom you have a disagreement that way.

    Cheers.

  22. John Burke Says:

    Michael Reynolds:

    Philip Zelikow is a fine fellow. Although trained as a lawyer, however, he has not practiced law for 25 years. His career has been as a foreign service officer and national security expert, including stints at the NSC and as executive director of the 9/11 Commission. It is clear that he opposed the CIA interrogation program as a matter of policy. He also went on record questioning the OLC legal opinions. So have many others with even more impressive legal credentials. To which the apt reply is that Yoo, Bybee and Bradbury are also dripping in impressive legal credentials. I see no reason to vest Zelikow with such authority that his saying ” that legal rationale is bogus” measn I should shut up.

    Not incidentally, what’s the point of writing this:

    “But then what the hell does he know when compared to a pair of highly partisan bloggers?”

    I write a fair and reasonable blog mainly from a centrist perspective, and I’ve always been a Democrat, albeit one who refuses to accept any party line. So is it your view that by not joining the left of my party in calling for heads over “torture,” I’m “highly partisan blogger” — and a Republican one at that? I started my blog to combat exactly the polarized state of political comment in the blogosphere. What about you?

    Brad Porter:

    As to all those things I should not forget (Geneva Article 3 and so on), let me respond to some of the more pertinent:

    Article 3 and US law making violations of the Geneva Conventions a war crime — 18 U.S.C. section 2441 does make it a war crime to commit a “grave breach of common Article 3” such as an act of “torture.” As with 18 U.S.C. sec 2340, though, “torture” or “cruel or inhuman treatment” is defined as “The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering.” “Severe physical or mental pain or suffering” is defined by te language in USC sec 2340 — which brings us around in a circle back where we started. Either you violated 2340 or no crime.

    The serious anti-torture people are hanging their argument on the language, “conspires…to commit…” The argument is that the OLC lawyers really knew that their argument was frivolous but cooked it up (conspired) with policy makers and/or CIA officers to provide legal cover to what they knew to be illegal acts. All I can say is, good luck proving conspiracy, intent, and actual harm all at the same time — by the lawyers, no less, not the “torturers” or those who ordered and approved the “torture.” My take is that some folks are hoping that the pressure on Obama-Holder will be such that they will do something that results in these lawyers being driven from the bar. That could happen, but a successful criminal prosecution won’t. Even assuming all the hurdles to bringing charges that would not be thrown out by judges could be cleared, no jury is going to convict any of these guys. Anf prosecuting them will cost Obama a lot of political capital.

    “Detainee Treatment Act, 2006; Intelligence Authorization Act, 2008) which explicitly define waterboarding and other techniques not in accord with the Army Field Manual as torture and as expressly and explicitly illegal.”

    The Detainee Treatment Act restricted the military to the Army Field manual but not CIA. Through the 2008 Act, some in Congress sought to extend this restraint to CIA but the President vetoed it and the veto was not overriden. In January, President Obama issued an executive order that, among other things, restricted CIA to the Army Manual — BUT hedged his bets by setting up a Task Force to study and report to him on whether CIA should have a different standard. It does seem that he has rendered that task force project moot by his anti-torture stance, but you never know what he’ll do in a year or two (I suspect he’s reserving the right to take a fresh look if things go badly in terms of terrior attacks). In any case, the use of the “enhanced interrogation techniques” BY CIA has not been expressly outlawed but prohibited by Presidential order, which can be changed by a stroke of the pen.

    Abu Graib, Bagram, Jose Padilla, people being killed in violent interrogations, etc. — I do understand that some people are upset by all of these things but they are still separate issues — if the issue is whether or not to prosecute anyone for the CIA interrogations. So far as we know, CIA did not run Abu Graib interrogations, not does it run those at Bagram. Nor for that matter did it question Padilla. Nor has anyone accused CIA personnel of killing any detainees.

    You should keep in mind that before 9/11, CIA officers were not in the business of conducting interrogations. The program of CIA interrogating “high value” detainees seems to have emerged in the early months of 2002, perhaps out of a perceived need to question these guys as part of a “black” (covert) operation, which in turn might have been deemed desirable to keep al Qaeda off balance (not knowing who was caught, by whom, under what circumstances, etc.). So far as we know, this program involved fewer than 100 of these “high value” detainees and that only about one third were subjected to any of the “enhanced techniques.”

  23. Kevin Says:

    I apologize before hand for an all in one response but plumbing issues called and I just read all of this

    Simon Said
    Well that’s certainly rhetorical bomb-throwing and partisan hackery.

    First off, I’ve not seen too many posts from you that don’t fit both of these while you continue to protest. “Mr. Pot, Mr. Kettle.” You are terribly predictable in your conclusions.

    An idea is either good or bad based on the idea not where I came from. If that were not the case, it would be possible to ignore all of your posts because no matter what the meander to get there it’s always a foregone conclusion where you will arrive. That said I do read them just in case you someday surprise me or you raise a valid point. In the end though, you are incredibly partisan and predictable. You remind me of the American who “knows his country is the best because he was born here and knows his is the true religion because he was born into it. ” Surprise me sometime with a non-partisan or bi-partisan post that shows some honest thought.

    As for the bombthrowing, you wrote a comment that makes me want to scream

    I said before the election that an Obama victory would, without serious doubt, lead by the short or long path to prosecutions of people in the previous administration (I suggested that Obama would downplay it to appear moderate until he needed a bone to throw to his base, but that the time would come), and that if Bush had a scrap of honor, he must issue a blanket pardon for everyone in his administration for anything they did in its employ, period. That would be an awful affront to the rule of law, I noted, and deeply troubling, but it was necessary to forestall the inevitable partisan witchhunt. Brad’s post serves as an apt reminder that those concerns were entirely justifed.

    So, first you prejudge the President (no partisan hackery there), then you prejudge the motives of everyone who thinks we should be ruled by law and not party affiliation. It’s offensive on so many levels and typical Rovian politics. Then you want to pardon all of the wrongdoing even though you say it would be an awful affront to the rule of law. Do you ever listen to yourself? Conclusions followed by prejudice that always gets you where there was never any doubt where you intended to fo. Permit yourself to indulge in the belief that some of us were outraged because we were paying attention, we love our country and we would be just as outraged were it to happen in any administration including the current one. (I do agree with you on one thing, Bush did not have a scrap of honor) Perhaps you are projecting here.
    If they determine any Democrats knew and could have said anything, go after them too. I’d like to get the stench off of my country that your party put there.

    Then Brad responded and gave me some hope— a Republican with principles that were not fluid. I thought these were extinct and thought they no longer survived in the wild ☺. How pleasant to see that some of us still consider ourselves Americans first.

    You then “attacked” Brad as not a conservative. As it is already out that you are of the Palin wing of your Party, While I have some issues with Ron Paul, he was a qualified and thoughtful candidate which Palin in your wildest dreams was not. (BTW, you called me a liar last time I commented on her and that is nuclear bomb throwing) That said, it doesn’t matter that she was a bone to the Ann Coulter wing of the party, the ideas do or don’t have merit on their own.

    Then Simon threw the next frag

    
Oh, and calling for Judge Bybee’s impeachment. I forgot about that little gem of lefty partisan silliness.

    Well a judge is appointed for his judgment and Bybee’s is now known to be seriously flawed, making his appointment, troubling to say the least. Since I believe you yourself said that we were torturing and were against it, other than the fact that he was appointed by a Republican you should be troubled by it too. Since people who voted for him say they wouldn’t have if they had known his role in giving the green light to this reprehensible behavior and that he should resign, he could spare us all and do that, but that would again be putting the country and it’s reputation first and that is not likely. We impeached a guy for perjury and he had a limited shelf life (Isn’t this a little more troubling?) If you say no, close your eyes and imagine he’s a Democrat. I don’t have to but I know it might be necessary.

  24. mdgeorge Says:

    I hate to jump into the fray, but I think Simon makes an important point:

    “This isn’t by any means to say that your reading is wrong – merely that text isn’t quite so clear or beyond argument as you’re suggesting.”

    Isn’t this the whole point, Simon? You’re arguing against investigation, but investigation and prosecution are exactly the processes by which we (a) find out what happened, and (b) resolve the legal ambiguities.

  25. kranky kritter Says:

    I am 100% with Obama in his reticence to cede what inevitably will become center stage to a showy witch hunt. Even if witches are real.

    I have seen way too many presidential administrations have all momentum and energy dissipated while the public obsesses with the rectitude of past actions. Whether it was watergate, Oliver North, or Monica Lewinsky, these pursuits all distracted us from important concrete issues that were affecting most Americans on a daily basis. Even if moral rectitude is stipulated, we all must realize that if this goes forward, what we will get is a lengthy divisive battle along largely partisan lines. Again, on center stage.

    So let me plead forgiveness from all the wingers who can never let go of moral rectitude.Let me say that I am an American just like you, and I want my politicians to fill potholes and make the trains run on time, and so on and so forth. Insert your moronic Mussolini joke here..

    So suppose we let this go. Suppose as a result are better able to make social security solvent over the long term, come up with a viable plan for universal healthcare coverage, and begin to bring the federal budget back towards balance.

    My opinion is that if we get those things and don’t get torture convictions, America and Americans will be WAY better of as a whole. And if that means that progressives have to keep walking around with big sour pusses on their faces and nurse civil liberties resentments until death, I can sure live with that outcome.

    I don’t even mind the predictable forthcoming slags about sacrificing liberty fro security and on and on. Our nation has very serious functional and systemic fiscal and management problems. I would like those addressed as our first priority. I am certain I am not alone. I am also pretty sure that if they remain poorly addressed or unaddressed because they take a BACK SEAT to a bloody patisn battle on a moral issue, our liberty will be adversely affected by our nation’s lack of long-term fiscal viability.

  26. J. Harden Says:

    Kranky – Couldn’t disagree more.

    You think not prosecuting the clearly illegal war crimes and crimes against humanity of the Bush Administration is going to create any leverage or bipartisan support in universal healthcare from the Republicans? I don’t think so.

    Great Leaders are masterful political calculators. However, masterful political calculators are not necessarily great leaders. I think we know which one we’ve got in the Oval Office now.

    Would the prosecution of Bush Administration officials be nasty and divisive? Sure. In other words, Tuesday in D.C.. Should we shirk away from our duty for political expendience with the distant hope that if we compromise on what we truly know needs to be done — maybe, just maybe (but highly unlikely) we will see marginal concessions on domestic issues far less important that the fundamental dignity of our country & citizenry.

    Let the prosecutions begin — the only way to heal this boil in our history is to lance it and let the bile drain out. If we are afraid of getting cut, it will only fester until the next opportunity comes about, but next time we won’t stop at water-boarding and stress positions — it will be finger-nails, electrodes to genitals, Turkish feet whacking, etc.

    What good is universal healthcare, social security reform, great education and effecient public transit if you live in country in which you can’t look yourself in the mirror in the morning.

  27. TerenceC Says:

    I don’t think the R’s have the air cover to fight any of this. Obama’s social agenda will probably pass with minimal compromise. The investigations into possible war crimes will also probably pass with minimal interference – whether they will find anything of substance is another story. There just isn’t enough “there” there with the Republican minority in either house, and the potential investigations will only make it worse for them if they are also seen as obstructionists in policies that can truly help main street. What choice do they have? Should the “R’s” try and defend that which is defenseless? Or should they do what Peggy Noonan suggests ……. “sometimes you just need to keep walking”?

  28. Kevin Says:

    kranky, I’m saddened by your post for several reasons.
    1) One of the reasons, I was hopeful with Obama is that I thought he could repair our seriously damaged reputation around the world. This would castrate those efforts and rightly so.
    2)There is a young lady in Iranian prisons that you are essentially providing a justification to torture her. (not to mention our troops)
    3) This President and the previous one took an oath to defend the Constitution and the nations laws. Shouldn’t they mean something. Did it say to do it if it was convenient only?
    4)Illinois recently had a similar situation, Democrats here did not say it was a partisan witch hunt and wanted to clean their house. Are Republicans truly devoid of any desire to put the country first? I know I see evidence that Party is first in their priorities but I did truly hope I was wrong. Are Illinois democrats truly more honorable than national Republicans?
    5) This is torture and it seems the only defense I’ve even heard is that “technically, legally” it might be arguable that they can squeak by. But doesn’t it deserve clarification? Require it? Do we really want to set this precdent? If so I say scrap the whole national experiment. We can split the country up and start over. I feel like the German in Nazi Germany who knew what was going on and want to say, “No, not in my name, Not now or ever. We are better than that, or were.

    Illinois is doing just fine after taking out the trash and the nation would be too.

    If you really, think it’s too much for us to take send them to the World Court.

  29. ExiledIndependent Says:

    Do you think this investigation will extend to Bagram? If so, what implications, if any, does that have for the Obama administration?

  30. TerenceC Says:

    Exiled-

    What do you mean “extend to Bagram”?

  31. janjanjan Says:

    Kevin, I don’t get your lauding Illinois Democrats. I was one for years before I moved south, so I’m naturally inclined to give them the benefit of the doubt. However, this time I can’t even do that, much less applaud them. Dick Durbin advocated a special election. There was some jumping on that bandwagon until the Dems realized that they might lose such an election due to the supercharged political climate. Suddenly, they repudiated such a risky idea. Instead, they helped impeach a guy they hated anyway. Now we’ve got a senator who would have been corrupt if he could just have pulled it off. Nothing to applaud.

  32. Tillyosu Says:

    Simple question:

    If we start prosecuting Bush administration officials, should we also expand prosecutions to members of Congress (Republicans AND Democrats) who reviewed, signed off on, and appropriated money for CIA interrogations?

  33. Kevin Says:

    I have no problem with that. When investigating a crime, you follow the evidence and prosecute those who broke the law. Simple answer.

  34. The Crossed Pond » “We are AMERICA! We do not f*king torture!” Says:

    [...] had a similar experience writing a post for Donklephant. It was discussing whether or not Obama was going to close the door on prosecutions, and the first [...]

  35. Michael Haltman Says:

    Saturday, May 2, 2009

    Enhanced Interrogation Techniques: The Need Is Clear! Let’s Go To The Videotape

    The Taliban Moves To Within 60 Kilometers Of Controlling Nuclear Weapons

    Be Afraid, Be Very Afraid

    For those on the extremely naive and holier than though left, read this very, very carefully.

    If there was any question regarding the use of any technique at our disposal to pull actionable information out of terrorists, I believe the transcript and clip below of Kuwaiti Professor Abdallah Al-Nafisi speaking on the topic of terrorist attacks on the United States should go a long way towards quelling it.

    Unless of course you are an employee of the ACLU, or someone that is willing to die, going to the grave with your incorrect principles intact.

    Now this professor does not speak for everyone, but for enough to be a concern at the highest level.

    This is an excerpt from a specch on Al-Jazeera in February, 2009:…

  36. TerenceC Says:

    Michael Haltman

    Your premise lacks any credibility and isn’t based in reality – only fear.

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