The System Is Working On Torture

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So now we have vented, we were appalled at the evil of the Bybee memo and the other memos justifying state sponsored torture of prisoners. Here on the internet our outrage has flared and been shared. This is an important aspect as we must make it clear how seriously the people of the Untied States take this issue, but now it is time to pull back a little. Now it might sound funny for the Dog to be saying this especially after the letter he wrote to the President yesterday, but let the old hound explain a little and you will see where he is going.

Cross posted at Square State

One of the Dog’s primary focuses has been to get an independent investigation of the Bush administrations apparent state sponsored torture program going. While some are calling for immediate prosecution, the Dog has not for a couple of reasons. The first reason being this is a rule of law issue and if we are to demand the rule of law then we must, with the strictest of care for all the procedure follow the rule of law. To do otherwise is to make a sham of the entire idea of rule of law and due process.

The second reason is the Dog is 100% convinced we will get to prosecutions from such an investigation. The most heinous aspect of the Bybee memo was the bland acceptance of the premise waterboarding could be considered legal in any circumstances. The complete disregard for previous case law and precedent makes that memo legal malpractice at the very least. This being the case there is little chance it was arrived at in such a way as protect those who ordered torture. Further, we thought we knew the boundaries of the waterboarding, it was only done a few times, to very few people and it worked very fast. These have been shown in the torture justification memos to be false. Marcy Wheeler of Emptywheel fame was the first to point out that just Khalid Sheik Mohammed (the Dog objects to shortening his name to just his initials, it dehumanizes him) and Abu Zubaydah were waterboarded over 220 times. This puts the lie to the idea it worked or was short and limited. It also shows the torturers, even if they relied on this spurious memo to justify starting this torture were far beyond the limits outlined there.

Why is that important? There is some case law which would support the idea we could not effectively try the CIA agents who carried out the torture because they had this memo telling them it was legal and they acted in good faith, how ever morally corrupt it was. The thing is when they exceeded this fig leaf; they threw away all its protections. Had they adhered to the limits they might have been safe, but now it seems they can be investigated and prosecuted, not for the initial torture, but for exceeding the boundaries of that torture.

The fact they might have exceeded the limits can come as no surprise to anyone who understands torture. This is the reason the prohibition has to be absolute, once torture is justified it grows, no matter the attempts to limit it to the contrary. There is something in the human psyche which once released form this prohibition allows a continuing expansion of the justification and rationalization of expanding the limits of what is considered acceptable. This is also the reason we must, absolutely must, follow the rule of law, for if we leave this in the past, as some argue for a variety of reasons, it will continue to grow and gain further acceptance.

So, why should we pull back on our rage, if only some, at this time? The reason is the system is working. The Dog knows it might not feel that way to many who care about this issue, but let the Dog share some of things which are in the works you might not be aware of. Just yesterday, Sen. Boxer sent a letter to the White House asking (telling, but in a the form of a request) the Executive Branch to stop talking about anyone in the CIA or the Justice Department being safe from prosecution. Her committee is investigating these “enhanced interrogation techniques” and by saying the White House should stop trying to set the frame she has made a major statement that she and her committee do not like what they have heard so far and are far from willing to sign on to the White Houses efforts to draw a line in the sand and forget about this. She expects her investigation to be finished around the beginning of 2010, and is marking out some ground for it to find the need for criminal prosecutions.

Further, the DOJ Office of Professional Responsibility is finishing up its report on the authors of the memos. This report in its original form was so devastating and damaging former AG Mukasey insisted the Office allow those in the report to respond as part of the report. This is highly unusual but it seems even with this departure from procedure the report means big professional trouble for Judge Bybee and Professor Yoo (think disbarment). It will also add weight to the idea of a fuller investigation.

There is also the aspect of the rest of the pictures from Abu Ghriab prison, which will be in the words of Sen. Whitehouse, shocking and appalling to the public. As with the torture memos these will enflame the country and hopefully bring those who are on the fence about this issue on the basis of other crises over to the side of getting to the bottom of this cesspit.

Finally, there is an aspect which we have forgotten during the lawless Bush years, the DOJ, while part of the Executive Branch does not in fact answer to the White House. This was a Nixonian idea, which the Bush administration resurrected, and it is a false one. The DOJ and the Attorney General are charged with upholding and enforcing the law. The President might weigh in on what he or she would like to see from the DOJ but he should not be the final say. The Presidents job is political, the DOJ’s is legal, they do not always follow the same logic, nor should they.

Michael Isakov have an article in this weeks Newsweek that details how inside the DOJ there is a lot of thought being put into doing just what the Dog and others have been calling for the appointment of a special council to investigate the criminal aspects of the Bush era interrogations form start to finish, he writes:

But the Obama administration is not off the hook. Though administration officials declared that CIA interrogators who followed Justice’s legal guidance on torture would not be prosecuted, that does not mean the inquiries are over. Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. has discussed naming a senior prosecutor or outside counsel to review whether CIA interrogators exceeded legal boundaries–and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Some Justice officials are deeply troubled by reports of detainee treatment and believe they may suggest criminal misconduct, these sources say. Even if prosecutions prove too difficult to bring, an outside counsel’s report could be made public. For his part, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, is still pushing for a “truth commission.” In a democracy, the wheels of justice grind on–and the president, for good reason under the rule of law, does not have the power to stop them.

You can find the entire article here.

There is a saying “The wheels of Justice grind slowly”. This is the point the Dog would like to make; these wheels do grind slowly but they are grinding away and it looks as though the system is working. Does this mean we should stop our efforts to pressure those in leadership positions to do what is right? Not at all! It just means we have to be sure what we are doing does not get to the point where it can be disregarded as shrill hysterics. The Dog gets a well deserved rap as being very measured and affable about his advocacy, but the reason he takes these measured tone is not that he is blind to the horrors of torture or is does not see red at the atrocities committed in the name of the United States and its security, he does. It is just there is little persuasion value in hyperbolic name calling. It is good for whipping up anger which is often needed to spur activists to action, but we are trying to get politicians to act and they rarely respond to name calling, even if they have earned the names.

So we enter into a new phase for our activism. The Dog feels we need to keep the pressure steady, but we also need to be ready to reinforce the good actions any of the above groups take. There is always the need for the carrot as well as the stick. The Dog knows it is hard to have faith in a system which has been so abused for the last 8 years and has produced less results than we have liked many times, but if we work to support the system, work to give aid and comfort to those working toward the rule of law, we have a much better chance to achieve the goal, actual justice, actual rule of law, applied evenly and fairly as our ideals require.

So, anger is hot and can be fun, we must bank those fires, keep them burning but not raging. If that white hot outrage is needed it will be there, a tool in our tool box, but not the only tool we have. If the current efforts of the system fail or flag we can use this fire to spur them on, but for now, we need to support the system of law and justice so it can work, for having the system work, regardless of its outcome, has to be our primary goal.

The floor is yours.  


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  1. any kind of action we are taking, merely to be sure we encourage those doing the right thing while keeping pressure on those who would be politically expedient.  

  2. from the horses mouth.

  3. It seems like our leaders are investigating now. I have every confidence that the right heads will roll in good time.

    Justice does indeed move slowly (how long did it take to get a verdict on Phil Specter?) and for good reasons. We need to know who did what and when. Summary judgment against everyone involved is no better than letting them all go.

    I agree with the dog. Stay angry. Follow the investigation. Have faith in the justice system. And be ready to get outraged if the investigation stops before we have the whole picture and full accountability.  

    • geomoo on April 22, 2009 at 02:47

    In this case, it finally is time to keep our ammunition dry.  We’ve been diligent and aggressive, and now we see results.  I just heard Leahy give a new response.  He had been saying the investigation cannot go forward without Republican support.  Ed Schultz just asked him what happens if no Republicans sign on.  Senator Leahy:

    Then we’ll have to do it without them.  

    This is not going away.

     Would he have said that without the letters and phone calls, without the fervor of us bloggers?  I wrote him that if he does this, I would have his back forever.

    I’ve been thinking of a diary on the history of human rights leading up to the sacred values enshrined in the Declaration of Independence and actualized in the Constitution.  The Dog is implying that such diaries–taking a break from the shocking, explicit diaries on torture–are called for now.  And when the abu ghraib photos are released, it’ll be time for another horrifying stroll into the hell of lawless cruelty.  Let’s not overload folks, but let’s keep discussing torture, our values, and the rule of law.  That’s my two cents.

    • Arctor on April 22, 2009 at 03:43

    will support Conyers and Nadler and that Holder will appoint an independent counsel to investigate. We will see Bybee’s Impeachment, Yoo’s disbarment and loss of tenured position at Berkeley Law, and someday a president may need a pardon to avoid prison and may stand in the dock afoul of international law. This will soon get ugly and then sad. But we must be fair and non-partisan. As long as we have Sheldon Whitehouse in Congress we can be assured justice will prevail.

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