Wednesday, December 24, 2008

Bankrupt Ideas

The Los Angeles Times editorial board has decided to be polite, because, even as a "center-left" group, civility and understanding is far more important to them than simple justice. In an editorial titled "Is the Bush administration criminally liable for its lawlessness?" the board answers its own question, which would seem to contain the answer in the way it was posed, by stating that "maybe it is but prosecution would be fruitless, so let's move on."

...It's conceivable that individuals in the Bush administration violated criminal law. But if they did so as part of a post- 9/11 response to terrorism, it would be all but impossible to prosecute them successfully.

Besides, the scandal of the Bush administration wasn't a matter of individual, politically motivated violations of law. Rather, it was a systemic failure to take seriously the spirit as well as the letter of this country's commitment to the humane treatment of prisoners or the privacy rights of Americans secured by the Foreign Intelligence Surveillance Act, or FISA.

Say what?

Vice President Cheney went on television and proudly boasted that he not only thought waterboarding was an acceptable way to interrogate people, even if it was against international and domestic law, he personally guided the permission to use the technique through the administration decision making process. That's not an admission of an individual violation of law?

Well, says the editorial, Congress let them do it, so that makes a difference.

That's a failure in which Congress must share culpability with the administration. It was the administration that, with the help of compliant legal counsel, rationalized the use of "enhanced" interrogation techniques such as waterboarding, sleep deprivation, humiliation and the use of dogs to intimidate prisoners of war and suspected terrorists. But, as the vice president argued recently, Congress at first either acquiesced in, or offered muted objections to, the administration's policies. That the failures were collective rather than individual makes them no less appalling, but it does suggest that a criminal prosecution will not remedy them. ...

Oh, please. That's like saying a neighborhood knows who has being burglarizing their homes and still foolishly leave the back doors unlocked, so we can't prosecute the burglar. Yes, the 109th and 110th Congresses proved to be (for the most part) a bunch of spineless wimps who gave the administration everything it wanted lest they be tagged as soft on terrorism (whatever in the hell that is). And yes, Congress took impeachment off the table so that a few bills could be passed, a very few. That doesn't mean that laws weren't broken and rights trampled, for which our justice system provides a remedy.

Prosecution is important for all sorts of reasons, not the least of which is that it is a deterrent. As Glenn Greenwald pointed out so passionately in his post in response to Ruth Marcus' suggestion that prosecutions wouldn't be prudent, deterrence is the whole point of prosecutions and convictions:

Punishment for lawbreaking is precisely how we try to ensure that crimes "never happen again." If instead -- as Marcus and so many other urge -- we hold political leaders harmless when they break the law, if we exempt them from punishment under the criminal law, then what possible reason would they have from refraining from breaking the law in the future? A principal reason for imposing punishment on lawbreakers is exactly what Marcus says she wants to achieve: "ensuring that these mistakes are not repeated." By telling political leaders that they will not be punished when they break the law, the exact opposite outcome is achieved: ensuring that this conduct will be repeated. [Emphasis in the original]

Mr. Greenwald also deals deftly with the shoddy excuse that because Congress didn't stop the administration we can't prosecute by suggesting that President Obama appoint an independent prosecutor, ideally Patrick Fitzgerald, who would undertake an investigation that wouldn't have a partisan taint to it:

As a practical reality, the largest barrier to any route to prosecution -- including this one -- is that the Congressional Democratic leadership was complicit, to varying degrees, in the illegal programs. But of all the various ways investigations could be pursued, the appointment of a fearless prosecutor with a proven record of independence (and who is a Republican to boot) would be the most effective.

The Times editorial concludes that " enticing as many find the idea of putting Rumsfeld or Cheney in the dock, neither a show trial nor a truth commission would be the right way to expunge or atone for the abuses of this administration. Thankfully, those who sanctioned them will soon be history."

Yes, thankfully, they will soon be history. They won't be forgotten, nor will their heinous criminal acts, but only if they are brought to justice so that the next administration and all those who follow will be forced to think long and hard about repeating those acts.

It's clearer than ever that the Los Angeles Times is bankrupt in all sorts of ways.


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Anonymous Anonymous said...

There one other argument against impeachment I have seen, which may persuade some but irritates the hell out of me.

I don't remember where I saw it at the time, but it relates to the Clinton impeachment follies: Clinton's successor would be much safer from impeachment because the country had just gone through the spasm of Clinton, and was weary of the process (which was mightily tainted.) I would extend the argument to the whole sorry process of harassing the Clintons and the Clinton administration to no effect. That's one reason everyone was so reluctant to take on the burden of the current mob.

4:11 AM  
Blogger low-tech cyclist said...

In our system of government, we, the people, are the ultimate sovereigns. We, not Congress, are the ones who our government is responsible to.

Congress has the right to legalize Federal crimes by changing the laws. A wink and a nod from a few 'key' Congresscritters doesn't suffice. Hell, even their written, signed consent wouldn't have sufficed. Lawbreaking is still lawbreaking, and should be prosecuted.

What's genuinely scary is the way the media types reflexively blanch at the idea that the people they hobnob with might be prosecuted, no matter what they've done to violate the laws and the Constitution. One system of justice for us,they say, and another for the drug dealers on the corner.

That's the literal definition of privilege - "from privus private + leg-, lex law" says Merriam-Webster. Private law.

I'm very much a small-d democrat - like Kilrain in The Killer Angels, "I God damn all gentlemen." This country isn't supposed to have an aristocracy. Sure, some will always be more wealthy than others, some will always be more famous, and they'll always get an easier ride through life. But it's an essential of democracy that we all must obey the same laws, and suffer at least similar consequences when we break them.

When we toss that away, we have a literal aristocracy, even if nobody has any titles.

4:17 AM  
Blogger spooked said...

well it's much worse than all that! For starters, 9/11 was an inside job, no doubt about it-- and they all know it.

They are war criminals, but absent a revolution, there will be no justice.

6:20 AM  
Blogger danps said...

Heh to the motherfuckin' indeedy.

8:13 AM  
Blogger Jeff Crook said...

But war criminals throw such fabulous parties!

9:52 AM  
Blogger Steve J. said...

I remember when lying about a blowjob was a SERIOUS Constitutional issue. My, how times change!

11:28 AM  
Blogger kelley b. said...

Back on topic, please.

The Los Angeles Times editorial board is a representative of the system that failed.

Make no mistake. The reason the Los Angeles Times editorial board is willing to give mass murders and torturers a pass is because the people owning the Los Angeles Times editorial board have a piece of the action. This isn't simply a case of the media taking a blue pill in hopes of waking up the next carrying on as if none of this happened.

History shows it keeps happening.

1:18 PM  
Blogger Kathy said...

Because of editorials like that, people have stopped reading these "news"papers, and are watching TV "News" less and less.

2:16 PM  
Blogger Regats said...

Steve J. said...
I remember when lying about a blowjob was a SERIOUS Constitutional issue. My, how times change!

Steve, please, let's be clear on the facts. There was more than one blowjob.

That makes it MUCH closer to lying about intelligence to get us into a costly and devastating war, illegally wiretapping American citizens, and condoning torture which was forbidden under the Geneva convention.

4:10 PM  
Blogger Regats said...

While there are some who would argue that Clinton got was was coming, I respectfully disagree.

It was Monica who got was was coming.

4:13 PM  
Anonymous Anonymous said...

Excellent post (I came here via Glenn Greenwald's link).

I have one pretty serious area of disagreement. I think you're way too easy on the Congressional Democrats who not only looked the other way but actively enabled these war crimes.

You let them off the hook by bizarrely comparing them to a potential victim of a crime and by giving them an exculpatory motive:

Yes, the 109th and 110th Congresses proved to be (for the most part) a bunch of spineless wimps who gave the administration everything it wanted lest they be tagged as soft on terrorism (whatever in the hell that is). And yes, Congress took impeachment off the table so that a few bills could be passed, a very few.

This is exactly the kind of empty speculation as to motive that Greenwald rightly criticizes the Times for in its analysis of Bush and Cheney.

There's every reason to believe that the Democratic leadership supported torture because, like most of our political elite, they thought torture was a good idea. The notion that they did so out of mere political cowardice or miscalculation is purely speculative.

Moreover, as Greenwald again notes when discussing Bush and Cheney's culpability, their motive is also irrelevant. Congress is a co-equal branch of government. When they commit warcrimes, they are equally responsible.

You are, of course, correct that Congress's culpability is no argument against prosecution. But it should not be ignored.

The Democratic Congressional leadership ought to be hauled before the bar of justice along with the leading members of the administration.

They are all war criminals.

9:45 PM  

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