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Investigating Bush's Crimes
When the Obama transition team opened a questions referendum on its popular change.gov website in December, one issue quickly soared to the top. "Will you appoint a Special Prosecutor (ideally Patrick Fitzgerald) to independently investigate the gravest crimes of the Bush Administration, including torture and warrantless wiretapping?" And when Obama stepped to the microphone at his first presidential press conference, the question came again, this time with reference to a Congressional call for a truth commission. Obama's response: "My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen; but that generally speaking, I'm more interested in looking forward than I am in looking backwards." The answer was a slight variation on the theme he has struck consistently since the final days of his campaign. But what does it mean with respect to the criminal accountability of Bush-era policy-makers? Many are inclined to hear confirmation of their hopes--Republicans eager to see the disastrous Bush years passed over without more fuss will stress the intention not to "look back," while Obama supporters who embraced his strong criticism of Bush's torture and surveillance policies will emphasize his observation that "nobody is above the law." Others are displeased with the ambiguity and press for a conclusive decision on the question.
But these exchanges give us the essence of the "no drama Obama" style: he builds support with lofty rhetoric, giving some sense of his policy objectives, but he consciously avoids committing himself to any particular resolution. Obama is not being coy, I think. He means precisely what he says. Accountability is not a part of his affirmative agenda, least of all for his first hundred days, on which the long-term success or failure of his presidential term may hang. An economic stimulus package, healthcare initiatives and a series of foreign policy challenges occupy center stage. Even in the Justice Department, Obama's first objectives involve restoring the institution's self-confidence and resurrecting its historical role in civil rights and voting rights enforcement. It's not that Obama and his senior advisers see the accountability issue as inherently unimportant--on the contrary, they readily admit that it may be the key to long-term resolution of a series of questions surrounding the abusive extension of presidential power. But it is clearly a back-burner issue for them, something better addressed near the end of his first term or, better still, during a second term.Obama's problem is that a growing number of Americans are concerned about what the Bush administration did and are eager to press the issue. The extent of public concern has been reflected in several recent public opinion polls, including one in February by USA Today showing that nearly two-thirds of Americans support investigations of the Bush administration's use of torture and warrantless wiretapping; roughly 40 percent support criminal investigations.
And the shift in public opinion is not the only thing transforming the environment in Washington on this issue. Susan Crawford, a Cheney protégée and the senior Bush administration official responsible for the military commissions in Guantánamo, told the Washington Post's Bob Woodward that she refused to approve the charges against Mohammed al-Qahtani because he had been tortured. Torture is, of course, a felony under US law, and if multiple figures are involved, it might well be "conspiracy to torture," a separate crime. As ABC News reported and President Bush later confirmed, the full book of proposed techniques to which Qahtani was subjected had been approved by the National Security Council, headed by Bush. A senior Obama Justice figure remarked after reading the Crawford interview that it would be "impossible to sweep the matter under the carpet." That's a view that seems to be shared by US allies and United Nations officials, who, pointing to Crawford's admissions, are asking why the United States has failed to introduce a criminal inquiry into how torture came to be practiced as a matter of US policy. Articles 4 and 5 of the Convention Against Torture require the United States to prohibit torture under domestic criminal law and to investigate and prosecute incidents in which it is practiced. The failure even to begin criminal investigations has placed the United States in breach of its obligations under the treaty, a point that even torture apologists like University of Chicago Law School professor Eric Posner freely concede.
President Bush was widely expected to issue blanket pardons to those involved in his interrogations and surveillance programs, but he did not do so. Moreover, the Bush administration's tenuous claim to legality for its torture programs was ended immediately after Obama assumed office, when he directed a reassessment of interrogation policies and revoked all of the relevant Bush-era Justice Department opinions with the stroke of a pen.
Obama has been careful to avoid any suggestion that he or his senior officers are directing a criminal investigation or prosecution of the Bush-era torture enablers. He is right to do so. The criminal justice system of a democratic state should not operate like a well-oiled military machine taking its cue from the commander in chief. It requires professional prosecutors who operate with critical detachment from political officials when they pursue criminal investigations. Moreover, the painful circumstances of the torture and surveillance programs, particularly the fact that senior Justice Department officials were complicit in their implementation at almost every step, make it an ethically doubtful proposition for the Justice Department even to take up the matter.
Up to this point, political influence has been used to block accountability. Investigations are still under way at the Justice Department and other agencies that touch on important aspects of the Bush administration's detainee policy. One probe is looking into the mysterious destruction of evidence of interrogations using highly coercive techniques that was sought in pending criminal cases. Another probe, nearly complete, is examining the circumstances behind the crafting of the notorious torture memos in the black hole of the Bush Justice Department, the Office of Legal Counsel. Under the Bush administration, these and other investigations were often bottled up, as senior officials refused to cooperate and the White House--which functioned as the nerve center for Justice Department political operations--refused to turn over documents. On occasion, they were shut down directly by order of President Bush. One criminal investigation launched by FBI agents at Guantánamo was ordered closed by the head of the Justice Department's criminal division, Alice Fisher, who may herself emerge as a target of a criminal investigation. Under the transparency policies Obama announced during his first week, and under the detainee policies he is busily putting in place, the administration will unblock internal probes and mandate that federal employees, including White House employees, cooperate with them. Realization that this was in the works may have given rise to President Bush's January 16 "gag letters" issued to Karl Rove, Harriet Miers and Joshua Bolten, instructing them to keep quiet in the face of a Congressional probe about their dealings with the Justice Department.
Leading Congressional Democrats are proposing a way forward. In January House Judiciary Committee chair John Conyers announced a blue-ribbon panel to be appointed to conduct an investigation. He is also proposing that the statute of limitations be modified to take the time pressure off potential criminal investigators. Senate Judiciary Committee chair Patrick Leahy put forth a proposal of his own a few weeks later in a presentation at Georgetown University. Leahy pressed the idea of a "truth commission," similar to the approach used in South Africa after the fall of the apartheid regime. Bush administration officials who come forward and offer a full accounting of their deeds could get immunity for their testimony; those who keep silent or give false statements could face prosecution. The Leahy and Conyers approaches share a number of elements, including the notion that the commission would consist of eminent people who are "above the political fray," would get subpoena power and would be fully staffed and resourced. Both Conyers and Leahy cite the 9/11 Commission as a model--a Congressionally authorized commission backed by presidential authority, a hybrid model that would eliminate some of the potential legal challenges that a purely Congressional commission might face. Conyers is, however, far more concerned about building a solid record that can form the basis of prosecutions, whereas Leahy offers immunity as a reward for candor.
There are unmistakable signs of momentum in support of a commission approach in Washington. Nancy Pelosi and other Democratic Congressional leaders who once sang in the "let's forgive and forget" choir are now signaling their support for a commission. But what about the Obama White House? Following a meeting between Leahy and Greg Craig, Obama's White House counsel, the White House was committed only to an ongoing discussion.
But the commission approach may, depending on some critical details, offer the best solution to the impasse. Moreover, it may well suit Obama's needs for the commission to be the creation and initiative of Congress rather than of his administration. It would allow a comprehensive investigation without embroiling the White House in the process. A commission would be in a position to put to rest some persistent questions, particularly regarding how torture came to be embraced as a matter of policy and whether the administration ever got actionable intelligence from tortured suspects that could conceivably offset the immense damage that torture has done to the moral authority of the United States around the world. Most significant, if a commission recommended a criminal investigation to the Attorney General, and if it recommended appointment of a special prosecutor, that would deflect suggestions that the process was "political."
On the other hand, investigative commissions do not actually do justice. They cannot bring charges, and in the process of granting immunity for testimony they can muddy the waters for a later prosecutor. Any commission would need the advice and guidance of professional prosecutors, who could help to assure that it would prudently exercise the right to grant immunity and would avoid damaging future prosecutions.
Criminal investigations and prosecutions might be avoided under the Leahy approach and might be delayed under the Conyers approach. But whatever approach is finally settled upon, it seems increasingly clear that there will be multiple investigations: a commission of some sort, Congressional hearings (which are promised in any event) and internal probes within the government, which will likely be pursued delicately and quietly.
Though the wheels of justice grind slowly, they grind exceeding small. One year from today, it is likely that a large number of the secret documents that form the backbone of Bush detention policy will be public and many of their authors will have been publicly interrogated about them. We will have a better sense of how torture crept into the American interrogations system and whose authority was invoked to ram it through in the face of legal hurdles once thought insurmountable. And one year from today, we will probably still be asking whether any of the authors of this national tragedy will or should be prosecuted. That outcome is not likely to satisfy either side of the debate. But it may well be consistent with the interests of justice, which demands a complete exploration of the facts before anyone is held to account. That outcome fully reflects the Obama style.
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35 Comments so far
Show AllI'm certainly willing to be patient while this issue is handled in an appropriate and legal manner. I just don't want to see something this important swept under the carpet and conveniently forgotten.
Unfortunately, waiting too long (e.g., until a second term) may render the prosecution a mute point. For many offenses, according to one guest appearing on The Rachel Maddow Show last night, the statutes of limitation for torture is eight years. If this is the case, offenses during 2002 could not be prosecuted after 2010.
Clearly, time is of the essence.
And don't forget, Dick Cheney himself recently made reference in a public speech to the statute of limitations on some things being about to run out.
Bill from Saginaw
So, there you have it. They'll just abide their time. When 2011 rolls around, they'll claim ignorance about the whole thing. Until then, they'll just keep ignoring the issue.
The tree of liberty must be refreshed from time to time with the blood of
patriots and tyrants. ....Thomas Jefferson
What commission has ever resulted in true justice? Try them and judge them before a court of We the People. .....public hearings and trials with We the People as judge and jury. Want REAL CHANGE, not rhetoric?..There it is. We the People CAN handle the truth and will act accordingly!
I share your sentiments that commissions are a poor vehicle for getting at the truth. I am not so sure a tyranny of the majority is the best remedy. Horton points out a more natural course for prosecutions to take place. Unless there is a concerted, well choreographed effort to cover up the facts surrounding a significant crime, such as has happened with the September 11 attacks, well corroborated evidence of war crimes is already, and will continue, to come to light making neglect of some sort of rendering of justice difficult.
Given the depth of the current crisis in the economy and the legislative battles entrenched ideologues are foisting on us, more immediate matters are taking center stage. For now. With time, though, the foundation of what is known currently about the torture memos, OLC authorizations, civilian leadership's role in undermining inherent military resistance to illegal tactics and techniques it is likely through the natural course Horton refers to, we'll see justice taking shape on these matters.
John Dean's comment, mentioned above, is very relevant. The crew intent on avoiding prosecutions in the Watergate affair thought to cover their tracks with a "commission." I have not signed Leahy's petition and I won't for this reason. The slow wheels of justice should continue to turn, and when they have provided enough grist to take the matter further, let it be done.
The tree of liberty must be refreshed from time to time with the blood of
patriots and tyrants. ....Thomas Jefferson
It's been almost six years since we were deceived and lied into invading two sovereign nations. And almost eight years since the false flag of 9/11. Time to ramp up the grist on the gears OUTSIDE the fox holes and expedite the process before it goes the way of the Kennedy assasination et al. Justice should be swift and efficient. Those criteria have for TOO long been cast aside. We MUST demand a totally independent investigation in view of the publics eye.
The longer we delay the necessary investigations the worse this nation continues to seem in the eyes of the world. I see nothing wrong with a Chief Executive directing his resources in the thorough uncovering of injustices and illegalities, and the prosecuting of those found to have played apart in them.
In fact I think it must be done if we wish to restore our dignity and our democracy..
"Most people would sooner die than think, in fact they do so." Bertrand Russell
There is also the statute of limitations on many of their lawless crimes. They cannot wait until the end of term 1 or into term 2, too late.
The bigger picture is the 100 billion dollars a year they have spent from 2002 thru 2008 in homeland security private no bid contracts.
Thats correct , 700 billion dollars spent on warrant less spy technology and foot patrol stazi police organizations like Infragard and Citizen Corps.
Its not just wire and internet tapping, its community watch spy networks lead by county first responders, nation wide.
This was Bushs GOP's cronie network of buddys trying to build a control network to ensure power under the guise of national security.
Gang Stalking vigilante torture networks have sprouted all over the country.
These are nasty hard core right wing lunatics that will do anything to build power and gain money.
They have been spoon fed millions of tax payer dollars and propaganda.
Americas freedoms have been attacked by people that would destroy the constitution to keep power.
The Bush legacy was to create GOP empire that could not be taken out power.
BornFreeMen
We went into Iraq to find WMDs, we stayed to bring freedom to a country that was soaked in fear and filled with informats, and in the process filled America with fear and informants.
Prosecute all involved for treason, failure to protect the Constitution from enemies foreign and domestic.
Investigations of torture and warrantless wiretapping, as bad as those things are, should not be allowed to distract us from prosecuting the overarching crime: launching wars of aggression against two countries that posed no threat to us, in which more than a million non-combatants have been killed.
Before I repeat myself, let me begin by citing an ancient legal precept from "Blackstone's Commentaries"-- it's somewhere towards the back, I believe: where there's a will, there's a way.
If I were satisfied that the Ruling Class of political elites had a genuine will and desire to thoroughly and rigorously investigate, without fear or favor, the multifarious wrongdoing of the previous maladministration, I would agree with Horton's approach.
Unfortunately, I do not credit the political elite with that will. It can't be said too often that a righteous investigation would expose the complicity and criminality of BOTH parties; put another way, our modern Amerikan duopoly IS a crime family divided into two related camps. Therefore, I hold the view that since there is no GENUINE will to move forward as well-meaning persons of integrity like Horton recommend, the alternative will be to conduct what will ultimately become a reverse "show trial", i.e. an elaborate charade intended to spare heinous criminals and misfeasors any negative consequences for their actions and inactions, and placate or pacify We the People into continued submission.
Here's a slightly reworked response to a previous Horton article:
_____________________________________
For a change, I didn't have an apoplectic fit when he [Horton] proposed the establishment of a Blue Ribbon Commission as one viable route to the rigorous, comprehensive, and profound reform Glenn [Greenwald] laudably espouses.
For the nonce, I accept Glenn's recommendation as more of an attempt to validate the concept of-- gack-- Yes We Can take action to redeem our present decadent and malignant political process and culture; I trust that he understands, or will further consider, the superiority of options such as appointing a Special Prosecutor with plenary powers.
After all, the staggering magnitude of crimes and legal depredations generated by the moribund maladministration is at last a subject fit for the tireless and exhaustive efforts that Kenneth Starr once launched in a monomaniacal crusade to ferret out the details of the president's genital physiognomy, and whether the president was the center and facilitator of a vast conspiracy of venality and carnality that left a slime trail from Arkansas to the Oval Office.
Like Walt Disney, Starr labored like an elephant and brought forth a mouse. In star(r)k contrast, presently the tottering carcass of a rabid elephant stumbles into the twilight-- why not appoint a Patrick Fitzgerald to do justice to such a rogue behemoth now that the subject is finally commensurate with a full-bore investigation?
But I contend that the Blue-Ribbon Commission has become utterly discredited, perhaps beyond rehabilitation in contemporary Amerika.
Without elaborating upon the taxonomy of assumptions necessary to credit the operation and prospects of such a commission, merely consider that the infamous Warren Commission broke the mold. No one familiar with that enterprise can doubt or refute the appalling truth that no less than the Chief Justice of the Supreme Court of the United States-- back when the SCOTUS was respectable-- allowed the President and the Attorney General's office to twist his arm into lending his prestige and personal authority to a reprehensible sham.
One doesn't have to don the tinfoil chapeau to acknowledge that the commissioners and their staff were tacitly charged with building a record of testimony and evidence to conclusively establish that the president was assassinated by a Lone Nut.
I submit that the atrocious and abominable Warren Commission abolished a reasonable belief that a group of Eminent Amerikan Statesmen, Soldiers, Judges, and Government Officials can be relied upon and trusted to conduct a scrupulous and comprehensive investigation of a critical event or pattern of conduct and present, without fear or favor, the naked truth.
It is, or should be, a foregone conclusion that, on the contrary, such a fellowship of elite, socially conservative, worldly, and politic icons will follow the cues, explicit or subliminal, from the powers who charged them, and readily collude and prevaricate in the interest of rocking the ship of state as little as possible-- lest the body politic long confined to the steerage-class bowels of the ship become uncontrollably aroused, even mutinous.
As a coda to buttress my well-founded skepticism, herewith an excerpt from a Keith Olbermann interview with John Dean:
OLBERMANN: Are you surprised by the president-elect's idea of this commission? Does it seem that it's treating this issue a little academically?
DEAN: Frankly, I am. I'm not sure it's academic the way they're thinking about it. It's clearly contrary to what we talked about earlier in a prior broadcasts how he told Will Bunch earlier this year, that immediately upon becoming president if he were elected, he would have his attorney general investigate this very question as to whether these war crimes are just stupid policies or very serious and egregious crimes. A commission is far away from that. A commission is passing the buck. And I've got to tell you also, Keith, in the unraveling of Watergate, we had many high level discussions about how to make it all go away without anybody having liability. We considered many times a commission.
· Yr Obd't Servant
A masterful post.
Very well said, Mr Servant. Adding to the strength of your argument, the following quote from the article: "Both Conyers and Leahy cite the 9/11 Commission as a model". Well, that pretty well sums it up, no? Still, I would say that it has to be done, an independent prosecutor with full subpoena powers has to be appointed, precisely because of the X factor, so to speak. Because even if the investigators are ultimately hoping in this manner to contain the damage, it's possible that the revelations would be so explosive as to elude their control. It's the only way.
Elected officials make just enough noise to assure re-election and nothing gets done. The 9/11 commission was a farce and an embarrassment, the families of 9/11 were bitterly disappointed. Conyers and Leahy will get no-where. Truth is most of these guys are empty suits and corporatist that pretend to represent their constitutents. When you write them with any concerns you get a form letter that explains nothing. Too bad we can't clone Bernie Sanders and fill the senate with 100 of them, then I could believe.
Bush war criminal administration = Nazi war criminal regime
Arrest, prosecute, convict, execute, cremate.
NUREMBERG II 2009
If we don't do something about this, we know the Europeans will-even if it takes years! I just hope Cheny doesn't die of natural causes before he's extradited to to stand trial in somebody's court somewhere. Remember Pinochet? And Milosevic? And the Germans are still tracking old Nazis. It would be so much better if we could clean up our mess ourselves. The rest of the world is already pretty pissed off with us for screwing up the world's finances.
When it comes to common criminals (yes, even those charged with murder), we as a society don't just say, let's look forward and not back. And the crimes of these "common criminals", usually their crimes don't touch but a few people in society. Their harm is usually at an individual level and not at societal or global level, i.e., they have usually caused much less harm then the war criminals such a Kissinger, Cheney, et al. But, this theme of "too big to fall or fail", that our leaders and our society seems to have embraced seems to go beyond just corporate crimes and mismanagement of companies and finances, but also extends to just plain old criminals. I guess the lesson to take is, if you are going to commit crimes, commit them at as grand a scale as possible, because then you will be untouchable.
the leading dems were complicit in these crimes. they will not throw themselves under the bus.
The exact reason we must take the investigation away from the fox and into the hands of the US citizen.
Got any proof, or is this just a routine smear?
Have you been in the wilderness these past eight years?
"Most people would sooner die than think, in fact they do so." Bertrand Russell
"President Bush was widely expected to issue blanket pardons to those involved in his interrogations and surveillance programs, but he did not do so."
Well of course not. He was probably assured by Obama's people that there would be no investigations and, therefore, no charges.
In hindsight, what is worse; a man in charge who is unethical and stupid [Bush] or one who is unethical and bright [Obama]?
At the end of the day. I am afraid that the most accurate word to describe Obama with regard to investigating and prosecuting Bush and his cronies for rendition and torture, lying to the people, spying on the people and many other potential crimes (I have lost count now) is COWARD! This Rule of Law and defending the Constitution is the one area he is obliged to deal with and like the Wicked Witch Pelosi and the brainless Scarecrow Reid, Obama will become the Cowardly Lion. It looks like Obama would now fail the course on Constitutional Law he once taught.
Obama isn't going to upset the applecart. He's, undoubtedly, a corporatist just like the vast majority of members of Congress and the Senate. He's a full-fledged member, and he doesn't have to campaign and make vague and rhetorical statements about "change" any longer. He's at the top of the heap. That's probably the extend of the change, for awhile -- at least until the next presidential election cycle.
"Obama isn't going to upset the applecart. He's, undoubtedly, a corporatist just like the vast majority of members of Congress and the Senate."
I question your logic. Republicans are corporatists, and they have no reluctance to prosecute Democrats.
Back from that wilderness, you might spend a moment or two discovering the sources of Barack Obama's 700 million dollar war chest that enabled him to wage a successful two year campaign for an office that pays $400,000/per.
Further it might behoove you to read about the rise of the DLC, especially about its being charged by President Clinton with the task of closing the gap in the collection of corporate funds, which , by the by, it did in part by stifling the progressive voices within your beloved party.
It will not take much honest research for you to discover that both GOP and Dem are corporatist toadies.
"Most people would sooner die than think, in fact they do so." Bertrand Russell
Thank you, Rick, for taking the reins and (hopefully) enlightening Perry.
Personally, I tire of trying to get people to understand that both major parties are beholden to their corporate overseers.
Thanks again...
Together we cannot fail.
"Most people would sooner die than think, in fact they do so." Bertrand Russell
The tree of liberty must be refreshed from time to time with the blood of
patriots and tyrants. ....Thomas Jefferson
Let's look at it this way. It's almost common knowledge that the Bush administration has committed crimes too numerous to list. AND, the evdence can be found with very little research. Why NOT prosecute these criminals?
Fear? Politics? Position? Secrecy? None of which should STOP justice by negating a crime.
O sez: "Why NOT prosecute these criminals?
Fear? Politics? Position? Secrecy?"
***
You forgot money. And complicity.
For God's Sake! Why do we only mention the torture and the surveilance crimes? What about the incredible crime of the illegal invasion and murder/genocide of approximately one million Iraqi innocents!!! I can only imagine that this unbelievable ommission is because this crime is of such stupendous proportions that the average American has simply repressed it from their consciousness as it would be too great a burden of guilt! WEll, sorry my fellow Americans, we can't make this diabolical crime against humanity and God go away by focusing on these smaller crimes! History has recorded these crimes and the sooner we face them and prosecute and punish the Bush/Cheney criminal cabal to the fullest extent of the law the sooner we will restore justice here in america and our name throughout the world!!!
The reluctance of their leaders to prosecute Republicans is a constant vexation for Democrats.
It does not, however, prove complicity on the Democrats' part, or prove that the Democrats are secretly in league with the Republicans, if only because Republicans show no reluctance whatsoever to prosecute Democrats.
Repubs will prosecute a Democrat for anything. The Bush II Justice Department prosecuted Democrats at a ratio of 6:1 over Republicans. If they were in league with the Democrats, this would not be so. Quod erat demonstrandum.
You are partially correct, republicans have no conscience, democrats have no brains.
"Most people would sooner die than think, in fact they do so." Bertrand Russell
It cannot be too often stated that the invasion of Irq was a crime under international law, precisely the same crime that the Nazi leadership stood trial for at Nuremburg - "Preparing and waging aggressive war" was the charge on the indictment. And it was to prevent a recurrence of this same crime that the United Nations was set up, and it was this same crime which the signatories to the UN Charter pledged themselves to abstain from. If America really stands for the rule of law (now seriously in doubt thanks to Mr Bush and his cohorts) then he and Blair should be standing at this moment before a properly constituted tribunal to answer for their actions. The American leadership responsible for this and other crimes (illegal detention, torture of prisoners...) knows very well that it stands in danger of the law - hence the neoconservatives' loathing for the UN and America's refusal to sign up for the International Court of Justice. Is Obama brave enough or wise enough to do what needs to be done in these circumstances to uphold the values of justice and decency? I doubt it.