Bipartisan? Whew!

Obama on show trials of CIA employees:

Mr. Obama, who has been saying that the nation should look ahead rather than focusing on the past, said he is “not suggesting” that a commission be established.

But in response to questions from reporters in the Oval Office, he said, “if and when there needs to be a further accounting,” he hoped that Congress would examine ways to obtain one “in a bipartisan fashion,” from people who are independent and therefore can build credibility with the public.

Regrets, we have a few.

Regrets, we have a few.

The horror.

I’d like to say this is fundamentally a dodge.  It is a dodge — he wants to look ahead, not back, he’s not suggesting, he’s leaving doors open… it is a dodge, and frankly a contemptible one.

But fundamentally it is not a dodge.  Fundamentally it is something much more horrible.  It is the process by which the United States takes on a practice associated with tyrannies and, far from being an endorsement of the rule of law, elevates the assumption to power to the ability to punish the previous regime for “incorrect” — and hence “criminal” — policies.

It is no different from the argument about the supposedly inevitable impeachment of ex-President Bush, also based on supposed crimes arising from torture.  As I wrote on a private list, made up mainly of attorneys, discussing that topic (adapted here), there is a tendency among certain people, and in particular those attracted to a certain pole in political debate, to regard their political choices or philosophical conclusions as the sole “moral” choice.  In fact, (a) criminalization of political disagreement, (2) the use of penal power to punish players in the previous regime, and (3) the adaptation of legislative bodies as proxies to loose the necessary political “justice” when the traditional judicial organs refuse to comply, have historically been popular options for playing out this partisan outrage and sating the desire for “moral” vindication on the politically deviant.

Just not in this country.

Now, torture — i.e., the question of whether or not the use of torture was ordered by the President of the United States — is indeed the issue regarding which reasonable people can disagree, though I am less sure that reasonably well informed men and women can agree whether it is ever appropriate for a chief executive, much less a commander in chief in times of war, to be amenable to criminal prosecution even for actions that are either violations of U.S. law, or even more so of international law.

This is such a serious category of question that many perfectly moral legal scholars quite horrified by the horrors of the Third Reich had serious questions about the legality — a hard word even to pin down here — even of the Nuremberg Trials.  But most of recognize an outer bound of what civilization will tolerate, and we prefer that our intolerance of inhumanity take as humane-seeming a form as we can give it, I guess.

If we are so clear on that question now, however, it would appear that almost every U.S. President in our lifetimes is probably amenable at least to an ham-sandwich-level of probable cause for prosecution; and then why not let the jury be the decider of the facts?  After all, Truman’s bombing of Hiroshima and Nagasaki is arguably every bit a violation of the canons of international law as those being suggested to apply to GWB. (UPDATE:  Ah, hah.)  Moving to more modern times, certainly most members of the world community, if we are to apply the “global test,” would testify quite sincerely to their belief that Bill Clinton, in order to distract the world from his dalliance with a sultry Zionist agent, knowingly destroyed a perfectly innocent aspirin factory for foeign persons of not-so-chalky-miens.  War criminals both of them, and of course Nixon and Johnson too, and what with all the victims being otherly-pixilated they are probably criminals against humanity, and genociders, too.

Is this so obviously over the top?  Less dramatically, it can hardly be doubted that virtually every chief executive in our times except perhaps the impotent Jimmy Carter could be credibly accused of a raft of extralegal — that means illegal, right? — strategies, tactics and means in the pursuit of what they perceived as national security goals, including the assassinations of foreign leaders, interventions in other countries without the permission of the United Nations, unauthorized shipments of arms in violation of neutrality legislation (who are we to say Churchill is right and Hitler is wrong?) and all sorts of “wet operations” by intelligence agencies, and so on.

And, again, all this is raised without even piercing the thick shell around the loaded word “torture,” or even the armor surrounding the degree of discretion to be afforded in particular to the constitutionally empowered commander in chief of military forces during a time of war.

Does my argument prove too much?  Yes, of course, because arguably I could deflect almost any demand for the prosecution of a lawless former commander in chief with these arguments.  But my point is that this problem of logic, consistency and expediency cuts both ways.

In the end, it is a generalized moral outrage, and a political anger that, while heartfelt, cannot possibly substitute for judicious application of the law, that lies at the root of any such indictment.

It’s the same thing  with prosecuting mere “functionaries” and officers, really.  They do what the Chief Executive (if they’re civilians) or the Commander in Chief (if they’re uniformed) tells them to do.  In this case, they were told to execute a policy whose supposed lawlessness is — in reality — completely beside the point.

And  what is the point?

Political revenge, pure and simple.

And despite what I continue to believe are his much better moral instincts, President Obama does not seem to be man enough, nor far enough removed from his political and legislative umbilical cord, to close the door to it.

Who knows who will come to regret it if he ultimately does not?

Cross-posted on Right Wing News.

16 Responses to “Bipartisan? Whew!”

  1. Punning Pundit Says:

    Ron, am I reading you correctly? Are you seriously arguing that we shouldn’t hold President Bush accountable for ordering and approving torture– because if we do _that_, then the next president will hold Obama accountable for… something?

    Are you seriously going to help lay the moral foundation of a torture state (which is what you’re doing!) because presidents should… be above the law?

    I hope I’m misunderstanding you.

    Punning Pundit’s last blog post..3 Quick hits:

  2. Ron Coleman Says:

    You are reading me lazily!

  3. Bill Says:

    The criminalization of political differences spelled the end of both the Athenian and Roman Republics. Caesdar marched on Rome precisely because he knew that the moment he laid down his imperium, his political enemies would prosecute him. This is a horrible, horrible path to be taking, and would rend the country like nothing since the Civil War.

    Punning Pundit:

    Are you seriously claiming that the techniques contained in those memos are torture? Perhaps you need to see some footage of the al-Qaeda torture rooms in Iraq to be reminded the effect of a power drill on a human kneecap and other details of real, genuine torture.

  4. Punning Pundit Says:

    I don’t understand how anyone can say that the systematic breaking of someone’s will, and repeated physical abuses are _not_ torture.

    Throwing someone’s head against a wall over and over and over again may not make the same _mess_ as a power drill, but it gets the job done.

    Gods, people! How can you _not_ think that was torture? It’s not _politics_ that we’re criminalizing, but rather: the laws against torture need enforcing.

    Punning Pundit’s last blog post..3 Quick hits:

  5. Bill Says:

    If you had read the memos you would be aware that this particular technique involved throwing the subject’s back against a flexible false wall, making noise without physical harm.

    Good God, do you forget who Khalid Sheikh Mohammed is? Or what would have happened in Los Angeles had the CIA been confined to asking “pretty please?” “Systematic breaking of someone’s will” is the whole idea of interrogation.

    What a topsy-turvy world, where the “human rights” of an inhuman monster trump the lives of thousands of Americans!

  6. Brian G. Says:

    Bill, don’t let the facts get in the way of your argument:

    Ron, if PP was reading lazily I would suggest you write a little clearer because I came away from this post with the same impression (and still do, after multiple readings).

  7. Tom DeGisi Says:


    I read a lot of opinions in the opinion piece at that URL. Well informed opinion. Expert opinion, even. Eye witness testimony, sure. But since I have also read good well-formed analysis which questions that opinion piece, I wouldn’t say facts.

    Tom DeGisi, aka Wince and Nod

    Tom DeGisi’s last blog post..Look Out, Janet!

  8. Tom DeGisi Says:

    I am not a lawyer. My understanding for fourth amendment cases, for example, is that individual police officers and their superiors are not liable under the fourth amendment if they break that very important human rights law. The evidence is thrown out and the government body (city, county, state or federal government) may be liable to pay damages.

    There is no lack of rule by law under that system. It does fairly well at protecting our fourth amendment rights without criminalizing mistakes either under fire – in the case of the cops – or mistakes of interpretation – in the case of the lawyers / officials who developed the policies they worked under.

    It is a mistake to criminalize policy mistakes. The officials in this question were trying to properly draw the line between coercive interrogation and torture – just as Bill Clinton was trying to destroy a factory creating WMDs. You disagree with what they did. The destruction of that factory was worse for the people who were killed than those interrogations were for the people who were interrogated. So you must want to prosecute Clinton, right?

    Did I can read Ron carefully?

    Tom DeGisi, aka Wince and Nod

    Tom DeGisi’s last blog post..Look Out, Janet!

  9. Tom DeGisi Says:

    In addition, Punning Pundit appears to want to violate the American officials rights. I am still not a lawyer. The American rule of law works like this. First you pass a law, then if someone breaks it you can punish them. But if the law is overbroad or too vague, that violates people’s Constitutional rights. In addition, you can’t make the law afterward and punish them. Every anti-torture law I have seen is very vague and overbroad. Most would criminalize common police practice if you take a broad interpretation.

    If Punning Pundit can point me to the specific, non-vague, non-broad law that was broken, I would appreciate it. Please remember, the Army Field manual law post dates these events.

    Tom DeGisi, aka Wince and Nod

    Tom DeGisi’s last blog post..Look Out, Janet!

  10. Punning Pundit Says:

    Can you really be arguing that there is no law against torture? Think about that _very_ carefully before you read this next part.

    18 United States Code Title 18, §2340(2) – “‘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.”

    This doesn’t seem ambiguous to me. waterboarding is torture. We know waterboarding is torture, because the US has previously prosecuted war criminals for doing it. The Spanish Inquisition eventually outlawed the practice– it was too cruel.

    We engaged in it.

    If anti-torture laws criminalize things which are common police practice, I would suggest that police are engaging in torture, and need to be brought to justice.

    Punning Pundit’s last blog post..3 Quick hits:

  11. Bill Says:

    But there’s the rub, PP: how is “torture” defined? Peruse the US Code, the case law- there is no bright-line definition.

    This was what the Bush admin lawyers were trying to do in these memos- NOT “authorize torture,” but rather define the limit of what techniques are “torture” and illegal, and not to be done. In this they had no precedential guidance at all. Now, setting waterboarding aside for a moment, are you prepared to say that the other techniques involved are so clearly and unequivocally ‘torture’ that no reasonable legal minsd could reach a different conclusion? I don’t think so.

    As for the Big One, waterboarding- the Left repeats over and over again the claim that Japanese were convicted of torture for waterboarding, alone, and not including bonafide no-question torture involving split bamboo and the like: but I’ve never seen substantiation of this claim.

    It is also extremely important, I think, to distinguish between the form of waterboarding where water is actually introduced into the breathing passages, a form of part-drowning which can cause severe or fatal injury; and the CIA version where the drowning sensation is an illusion, and no water actually enters the lungs.

    Several protesters have volunteered to be waterboarded, and all walked away unharmed. How many Code Pink volunteers do you think there would be to have battery acid ripped into their eyes?

  12. Tom DeGisi Says:

    Punning Pundit,

    Can you really be arguing that I said there was no law against torture? The words “every anti-torture law I have seen” rather firmly contradict your implication.

    Unless that law defines “severe physical or mental pain or suffering”, I would say it is vague and overbroad.

    Waterboarding is practiced during SERE training.

    “We know waterboarding is torture, because the US has previously prosecuted war criminals for doing it.”

    No we don’t. If the war criminals did it to American POW’s it was illegal for entirely different reasons.

    “The Spanish Inquisition eventually outlawed the practice– it was too cruel.”

    I would rather be waterboarded than have Social Services put my child in foster care for a week – or than spend a night in jail waiting for trial. Both of these can happen to innocent people. Cruelty is in the eye of the beholder.

    A broad reading of that law would prohibit police from threatening people with a long prison sentence to get them to cooperate. Facing that choice would cause me severe mental pain and suffering.

    You need to think about the very nasty things we already do and that you are comfortable with. I understand waterboarding is over very quickly.

    BTW, considering that caterpillar:

    I can make a liberal confess – just by putting him in a small box with Rush Limbaugh.

    I can make a conservative confess – just by putting him in a small box with Michael Moore.

    But wait, this can be improved by using goverment employees to save money!

    I can make a conservative confess – just by putting him in a small box with Hillary Clinton.

    Too bad Cheney isn’t VP anymore, though, because I can make a liberal confess – just by putting him in a small box with Dick Cheney – and we no longer would need an undisclosed location!

    Tom DeGisi, aka Wince and Nod

    Tom DeGisi’s last blog post..Look Out, Janet!

  13. Tom DeGisi Says:

    This article talks about the practical reasons anti-torture zealotry should be ignored.

    This article talks about waterboarding very specifically.

    This opinion piece puts the debate in perspective.

    Here’s the bottom line. I am in favor of the policy of Mutual Assured Destruction. If some power nukes the U.S., I expect us to nuke them back. For it to work people have to be assured we will do it. I am also in favor of missile defense. Many people (like Walter Mondale) who are against missile defense are even more in favor of MAD. MAD is way, way, way worse than torture. That Walter Mondale! What a horrible man! As Vice President, he and his President (Jimmy Carter) practiced MAD. Lock ’em up, right?

    I also beleive in just wars. Just wars don’t just kill people, they maim them. Some of those maimed people will live with pain the rest of their lives. Being maimed is a form of torture, and it is way, way worse than any of the things our interrogators have been accused of. Bill Clinton made preemptive (of genocide / ethnic cleansing ) just war on Serbia. People were killed and maimed. That Bill Clinton! What a horrible man! Lock ’em up, right?

    I also believe in the American criminal justice system. The American criminal justice system puts innocent people in jail. Can’t be helped. It also subjects people to prison rape.
    Prison rape is way worse than any of the things our interrogators have been accused of. Congressman Dennis Moore was a district attorney. That Dennis Moore! What a horrible man!Lock ‘im up, right?

    Considering that we have actually had the ticking time bomb scenario with Sheik Khalid, I am in favor of rarely applied torture within carefully prescribed legal bounds including proper supervision from multiple branches of government. That’s better than we had with MAD – MAD is the President’s decision only. That’s better then way we have with war fighting power – as that aspirin factory in the Sudan attests – those missiles were the President’s decision only. And if we design it right it will be better than the criminal justice system – the D.A. has a lot of relatively unchecked power.

    Tom DeGisi, aka Wince and Nod

    Tom DeGisi’s last blog post..Look Out, Janet!

  14. Ron Coleman Says:

    But Tom, Obama’s intentions are so good.

    And Bush’s were so, so bad.

  15. Tom DeGisi Says:


    I’m afraid you are incorrect. I just temporarily removed the tin foil and, as usual, I was exposed to Obama’s powerful thoughts. His intentions were not good.

    I’m not going to do this again for you. It was pure torture.

    Tom DeGisi, aka Wince and Nod

    Tom DeGisi’s last blog post..Look Out, Janet!

  16. Oh, yeah… him | Likelihood of Success Says:

    […] it’s the same issue that made me realize I am a conservative in the first instance.  And the inexcusable Obama “policy” on “torture” — which is merely a political hiccup, a gesture to the left, a classic instance of liberal […]

Attorney Ronald D. Coleman