The Washington Post Endorses Abu Ghraib Scapegoating for Torture

The Washington Post Editorial Page -- keeper of all establishment Washington wisdom -- today advocates that low-level CIA interrogators who went beyond John Yoo's torture guidelines, and only them, be criminally investigated and prosecuted by the Justice Department:

The Washington Post Editorial Page -- keeper of all establishment Washington wisdom -- today advocates that low-level CIA interrogators who went beyond John Yoo's torture guidelines, and only them, be criminally investigated and prosecuted by the Justice Department:

We
reject the distorted interpretations that underpin the OLC memos and
that serve as legal justification for harsh interrogation techniques
that either border on or constitute torture. But those who
relied on the memos and shaped their behavior in the good-faith belief
that they were following the law should not be subject to prosecution.
It is an entirely different story for those who went well beyond the
often-extreme measures authorized by the memos.

In
2004, the Pentagon reported that 34 deaths had occurred in detention
facilities in Iraq and Afghanistan; at that time, nine deaths were
classified by military medical examiners as homicides. . . .

We
continue to believe that an independent commission would best be able
to shed light on a wide range of questions regarding detainee detention
and treatment policy. It would help to ensure that such mistakes
are never repeated. But some acts, including the violent deaths of
detainees at the hands of U.S. personnel, must be investigated and
addressed by law enforcement.

That, in a
nutshell, is the twisted Washington mentality when it comes to
lawbreaking: when political crimes become so blatant and extreme that
they can no longer be safely excused (Watergate, Iran-contra,
Abu Ghraib), then it's necessary to sacrifice some underlings who
carried out the crimes by prosecuting them, but -- no matter what else
happens -- the high-level political officials responsible for the
crimes must be shielded from all accountability. In ordinary criminal
justice, what typically guides prosecutions is the opposite mindset:
namely, a willingness to immunize low-level soldiers in order to ensure
that the higher-level criminals suffer the consequences of their
crimes. But when it comes to crimes committed by political officials
in America's Versailles culture, only the pawns are subjected to the
rule of law while the monarchs and their highest royal court aides are
immunized.

Note the distortions on which the Post
Editors rely in order to justify their two-tiered justice system. DOJ
torture-authorizing memos should shield those who acted in accordance
with them because they were created and followed in "good faith." That
assertion is groundless and false. The Post itself this morning reports
what has long been known: that a DOJ ethics reports due in the next
several weeks will not only "renounce Yoo's approval of harsh CIA
interrogation practices [but also] recommend that he and Jay S. Bybee,
a former colleague, be referred to their state bar associations for discipline." The necessary conclusion of that DOJ recommendation is that the torture-authorizing memos were written in bad faith (i.e.,
not merely wrong, but entirely groundless and produced with bad
intent), since only a finding of "bad faith" (not mere error) could
justify ethics proceedings against these lawyers.

A recently released report from five Inspectors General
makes clear that Dick Cheney and David Addington selected Yoo to write
these memos because they knew in advance that he'd approve of whatever
they wanted to do. This process was the opposite of "good
faith": what happened was that the highest-level political officials
wanted to break the law, and so they found a hardened ideologue at the
DOJ willing to write memos to classify those crimes as legal. To
describe that process as "good faith" is to twist that phrase beyond
recognition. It was blatant criminality accompanied by advanced
bureaucratic cover from John Yoo -- the same person who wrote memos
advising the President that not even the Bill of Rights could constrain his actions.

For
all the talk about how Bush/Cheney executive power theories created a
lawless presidency, the "principle" about to be institutionalized --
and that the Post Editorial Page today expressly endorses --
will do more to spawn presidential lawlessness than all of those DOJ
memos combined. We now apparently believe that Presidents are free to
break the law as long as they can find a low-level DOJ functionary to
write a memo justifying that conduct in advance. It's impossible to
imagine any President -- occupying the most powerful political office
in the country and commanding blind loyalty from all sorts of
operatives -- who would be unable to find a lawyer-underling willing to
endorse whatever he wants to do. Richard Nixon had lawyers defending
what he did in Watergate. Ronald Reagan had lawyers defending what he
did in arming Iran in order to fund the Nicaraguan contras in violation
of the law. George Bush had lawyers justifying his spying on Americans
without warrants even though FISA criminalized exactly that. And
Dick Cheney had lawyers justifying his torture regime. That's always
going to be true.

If, as appears to be the case, this is the
principle by which we're now governed -- presidential acts in blatant
violation of clear statutes are no longer crimes if a DOJ lawyer
justifies it in advance, even using legal reasoning found to be in bad
faith -- then, by definition, Presidents are literally no longer bound
by the rule of law. If the crimes are embarrassing enough, we'll find
a Lynndie England -- or some obscure, easily demonizable,
extra-sadistic CIA interrogator -- to scapegoat and punish in order to
pacify the citizenry and create the illusion that the rule of law still
prevails. But the one thing that remains off-limits in Washington
culture above all else is subjecting high-level political officials to
the rule of law when they commit crimes. The low-level scapegoating
which the Post today endorses is the approach which, by all accounts, Eric Holder is likely to pursue.

The most ironic aspect of the Post's
Editorial is its oh-so-solemn plea that we do what's necessary "to
ensure that such mistakes are never repeated." Leaving aside the
perversity of referring to a formal torture regime as a "mistake," what
the Post advocates -- enabling Presidents to break the law as
long as they have a low-level DOJ permission slip -- is to ensure that
these sorts of things will happen over and over. We have rampant
lawlessness in our political class precisely because the consequences
for high-level lawbreaking no longer exist.

UPDATE: In comments, BriGuy301 writes:

Apparently the Washington Post believes the Oath goes like this:

"I
do solemnly swear that I will faithfully execute the office of
President of the United States, and will to the best of my Ability,
preserve, protect and defend the Memos of John Yoo."

It isn't just The Washington Post
that believes that, but most of official Washington. It was once the
case that "the law" meant "the Constitution, treaties, and laws
approved by Congress and signed by the President." Now, in Washington,
"the law" means: "what John Yoo wrote."

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