A helpful reminder

From the UN rapporteur on torture:

UN expert criticizes US torture decision

VIENNA (AP) — An Austrian newspaper quotes the U.N.’s top torture investigator as saying President Barack Obama’s decision not to prosecute CIA operatives who used questionable interrogation practices violates international law.

Manfred Nowak is quoted in Der Standard as saying the United States has committed itself under the U.N. Convention against Torture to make torture a crime and to prosecute those suspected of engaging in it.

Obama assured CIA operatives on Thursday they would not be prosecuted for their rough interrogation tactics of terror suspects under the former Bush administration.

Nowak also says in the newspaper interview published Saturday that a comprehensive independent investigation is needed, and that it is important to compensate victims.

In another case of “the rule of law: ur doin it wrong”…

Mischa writes to me:

And then after, it’s retroactively still not illegal.

That said, leftists feeling betrayed should ask themselves when he ever promised anything on this.

Think positive.  Think positive.

The worst part just hit me.

“It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.”

I can see how they want to avoid it being Abu Ghraib  — lock up some peons for the cameras, etc.  But when you think about that statement for a moment.  The Holderobama DoJ has just approved the Nuremberg Defense.

My boss said it was OK.  That is, in effect, the Nuremberg Defense.  Only this time, it wasn’t done by people following the orders of a totalitarian regime, so it’s less morally excusable.

oh well, Befehl ist Befehl.

White House: Criminal Intent


I always expected this to happen. From the New York Times:

LONDON — A Spanish court has taken the first steps toward opening a criminal investigation into allegations that six former high-level Bush administration officials violated international law by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba, an official close to the case said.

The case, against former Attorney General Alberto R. Gonzales and others, was sent to the prosecutor’s office for review by Baltasar Garzón, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.

The move represents a step toward ascertaining the legal accountability of top Bush administration officials for allegations of torture and mistreatment of prisoners in the campaign against terrorism. But some American experts said that even if warrants were issued their significance could be more symbolic than practical, and that it was a near certainty that the warrants would not lead to arrests if the officials did not leave the United States.

Even if Gonzales et al. never decide to go on a group vacation to Spain, arrest warrants would still be be politically meaningful. If enough other countries seek prosecutions of members of the former administration, Congress and the Obama Administration may be compelled to push for domestic prosecutions.

More from the torture program files

For a while, I held the opinion that the best mechanism for transitional justice in post-Bush America would be an investigatory truth commission with subpoena power that wouldn’t grant immunity, but also wouldn’t necessarily precede criminal trials. I thought that if this was pulled together, it would gain such momentum that prosecutions would cease to be a question of if and become a matter of how soon.

But, right now, I’m of the “screw that” mind.

Let’s start with an independent prosecutor.

The Guardian, on just released Guantanamo prisoner Binyam Mohamed:

Mohamed was found to be suffering from bruising, organ damage, stomach complaints, malnutrition, sores to feet and hands, severe damage to ligaments as well as profound emotional and psychological problems which have been exacerbated by the refusal of Guantánamo’s guards to give him counselling.

Mohamed’s British lawyer, Clive Stafford Smith, said his client had been beaten “dozens” of times inside the notorious US camp in Cuba with the most recent abuse occurring during recent weeks. He said: “He has a list of physical ailments that cover two sheets of A4 paper. What Binyam has been through should have been left behind in the middle ages.”

Lieutenant colonel Yvonne Bradley, Mohamed’s US military attorney, added: “He has been severely beaten. Sometimes I don’t like to think about it because my country is behind all this.”

Well, lieutenant colonel Bradley, a lot of people in Washington would also rather not think too deeply about the torture program, renditions, and assorted other crimes and human rights violations. But we need to face this.

More discussion of a truth commission

A few points:

1) It’s a very VERY welcome change from a few months ago that we’re now hearing more serious disagreement over what kinds of transitional justice mechanisms we’ll use to reckon with the crimes of the Bush era, rather than whether we should or can use any at all.

2) There is no single model for setting up a truth commission or commencing criminal prosecutions. We have many options.

3) The only option we don’t have –if we want to pay more than lip service to the principles of the rule of law and equal justice– is to do nothing.

4) Let’s leave reconciliation out of it. It’s a non-issue, and weakens the argument in favor of transitional justice in this case. As I wrote a few months back:

There are no parties to be reconciled, just the agents of a soon-to-be-out-of-power criminal regime and their numerous and varied victims. Moreover, the victims are of a dozen or more nationalities and spread out over six continents. Very few of the surviving victims and loved ones of deceased victims will ever have to share the same social or civic space –or the same space, period– with the perpetrators.

I think that the creation of an evidence-seeking Truth Commission that neither automatically precedes criminal trials nor offers any kind of immunity would be the best option for us in the years ahead.

The chorus grows louder

Via No Comment:

What is the best course for bringing a reckoning for the actions of the past eight years on everything from torture to illegal wiretapping? There are some who resist any effort to investigate the misdeeds of the recent past. Indeed, during the nomination hearing of Eric Holder some of my fellow senators on the other side of the aisle tried to extract a devil’s bargain from him in exchange for their votes; a commitment that he would not prosecute for anything that happened on President Bush’s watch. That is a pledge no prosecutor should give. And Eric Holder did not give it. But because he did not, it accounts for some of the votes against him. That is not the example we should give in a country that believes in the rule of law and believes no one is above the law.   –Senate Judiciairy Chairman Patrick Leahy


Yesterday, my friend M, from Bosnia, left an irate message on my facebook wall:

I see no reactions to the slaughter in Gaza? Are you guys watching TV? I mean proper TV, not Fox news and the like?

Sigh. I responded:

M, I have been following it, mostly on relief sites and through the UN agencies. It’s awful, and I haven’t commented mostly because I don’t know what else I could add. There are no peace rallies or other events in my area (I live in an economically depressed place, where people care mostly about not having their electricity turned off, so it’s not the most politically active place.) As you know, Palestine is a very different issue here in the US than in Europe, so my ability to “act locally” on this is limited.

Honestly, I really don’t know what I could add to the discourse. I feel terrible about the civilian suffering, but I also understand US policy on the Israeli-Palestinian conflict is driven by political elites and the media. Jon Stewart did a bold thing with this segment.

It’s sad that a comic had to point that out that the Israeli-Palestinian conflict in the US news media is “the mobius strip of issues –there’s only one side!”

Hooray impunity!

This makes me very, very, very, very angry. And not just “I’ll-post-this-on-my-blog-and-write-that-I’m-angry-about-it” angry. No, I’m angry in real life.

Robert Litt, a former top Clinton administration Justice Department prosecutor, said Obama should focus on moving forward with anti-torture policy instead of looking back.

“Both for policy and political reasons, it would not be beneficial to spend a lot of time hauling people up before Congress or before grand juries and going over what went on,” Litt said at a Brookings Institution discussion about Obama’s legal policy. “To as great of an extent we can say, the last eight years are over, now we can move forward -that would be beneficial both to the country and the president, politically.”

Shorter Robert Litt: “Tsk, tsk, you fussy human rights lawyers. Enough of this ‘accountability’ nonsense. Don’t you know that the rules are different for the powerful? Just let us move on and forget all this, err, unpleasantness.”