Nuremberg On The Potomac? No Chance

By Cernig

There are more than a few bloggers writing this morning about an ABC report that says senior Bush administration members signed off on torture of detainees.

The so-called Principals who participated in the meetings also approved the use of “combined” interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these “enhanced interrogation techniques” were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

Marc Ambinder thinks reports like this could be highly relevant for possible prosecutions in the future and says it's a "hidden secret" that a future Democrat DOJ will push for such trials. Over at the Weekly Standard, Michael Goldfarb immediately retorts that such would be bad for Obama's unity pony - as if Goldfarb ever gave a flying f**k for unity while his party had the upper hand. Strangely, everyone else who might have gotten wind of this "hidden secret" says Ambinder's on crack.

Unfortunately, I have to agree with Jack Balkin - the chances of a prosecution happening in the U.S. are less than nil. Prosecutions, if they come at all, will come from other nations.

Remember that sections 8 and 6(b) of the Military Commissions Act of 2006 effectively insulated government officials from liability for many of the violations of the War Crimes Act they might have committed during the period prior to 2006. Moreover, as Marty has pointed out, there's a strong argument that a later Justice Department would not prosecute people who reasonably relied on legal advice from a previous Justice Department. Perhaps the Justice Department could argue that the officials' reliance was unreasonable, but that might be difficult to show.

And putting aside the purely legal obstacles to a prosecution for war crimes, there's also the political cost. Why would an Obama or Clinton Administration waste precious political capital early on with a politically divisive prosecution of former government officials? One can imagine the screaming of countless pundits arguing that the Democrats were trying to criminalize political disagreements about foreign policy. Such a prosecution would make politics extremely bitter and derail any chance for bipartisan cooperation on almost any significant issue. Obama or Clinton would rather get a health care bill passed, deal with the economy, or try to solve the Iraq mess, than have the first several years of their Administrations consumed by a prosecution for war crimes by officials in the Bush Administration.

As I noted in a previous post, the most likely prosecution for war crimes will not occur in the United States; if it occurs at all, it will come through the use of universal jurisdiction against Bush Administration officials who make the mistake of traveling outside the United States. There are certainly plenty of people outside this country who would like to try Bush Administration officials for war crimes. However, perhaps predictably, an Obama or Clinton Administration would probably try to exert political influence to nip any such prosecutions in the bud, worried that acquiescing in such prosecutions would set a very bad precedent for American interests.

Sad but true, especially since I also agree with Balkin that war crimes have definitely been committed by members of the current administration. As he says: "That is not a normative recommendation. It is rather a prediction about power politics and about the deeply unjust world that we live in." Still, I would advise Bush administration officials involved in this against taking holidays in Europe if they want to remain free of the long arm of the law. Patagonia sounds about right. European courts have recently proven themselves to have very long memories on such matters, sometimes waiting decades before finally giving torturers their deserved day in court.

Update

Emptywheel has some very interesting speculation on who mght have leaked this story to ABC, and why.

the most likely people behind this story are the same people who were working diligently, in December and January, to make sure the CIA alone did not pay for the destruction of the torture tapes...the President's top aides approved of everything that would have been revealed on the torture tapes, had they not been destroyed.

And remember, it's not just three tapes - it's upwards of 24,000. It's not just the CIA who made tapes, but the FBI and the Pentagon's various intel offices as well. The latter's spokespeople have been spinning like tops to avoid having to go digging for tapes that might have survived,

Comments

[pwapvt]

They really need to be held accountable. Somewhere, somehow somebody (everybody?) in this admin needs to do some time, hard time.

[anderson]

. Such a prosecution would make politics extremely bitter and derail any chance for bipartisan cooperation on almost any significant issue.

I've got "news" for Jack Balkin, though I find it hard to believe he doesn't know this already. The days of "bipartisan cooperation" are history. Over. Done. Stop even talking about such a fantasy. Politics is now already bitter and has been for sometime. Republicans have demonstrated that they will corrupt the DoJ and throw Democrats in jail for their own ends. If the Democrats think bipartisanship lies in their future, they really are clueless. Bitterness is only going to increase if the Dems do win the White House and even if they don't.

If we've seen anything, it is that bipartisanship and centrism today means the GOP getting what they want and the only thing that will put an end to that attitude is for them to be tossed out on their collective ear by a voting public. Because the Democrats are wholly unable to resist the GOP push and the media machine that drives it. Even in the majority, they've been cowed by name-calling, which the media are happy to magnify over and over again.

Of course there will be no trial here. When has there ever been for any of the massive frauds exacted upon the American public or the rest of the world by the armatures of Washington power? Iran-Contra? Everyone was pardoned. Ollie North wound up with a television show. A few hacks did some time for Watergate. The Gulf of Tonkin fraud? Nothing. The war crimes of the first Gulf War? Most people don't even know they happened. The closest we've ever got to a reckoning was with Nixon, and he basically walked away scott free.

A massive house cleaning is required. And only the American public can do that. But they hardly know what is even going on.

[Chris Dudley]

This from the NYT: "President Hamid Karzai refused to sign a decree law drafted with American help that would have allowed Afghanistan to hold the former detainees indefinitely as “enemy combatants."

So Karzai understands the rule of law more than the Bush Administration does?