Sunday, March 22, 2009

NYT Editorial on the Rule of Law

Two things in particular I liked here:

"But the break does not always seem complete enough. Even as they dropped
the 'enemy combatant' terminology, Mr. Obama’s lawyers did not seem to rule out
indefinite military detentions for terrorism suspects and their allies. They
drew a definition of association with Al Qaeda that is too broad (simply staying
in a 'safe house,' for example). Worse, they seemed to adopt Mr. Bush’s position
that the “battlefield” against terrorism is the planet. That became the legal
pretext for turning criminal defendants into lifelong military captives

Well put. And this is important too:

"Mr. Obama also should stop resisting an investigation of Mr. Bush’s policies on
terrorism, state secrets, wiretapping, detention and interrogation. We know he
is struggling with many Bush-created disasters — in the economy, in foreign
policy and on and on. But understanding all that has gone wrong is the only way
to ensure that abuses will truly end. That investigation should be done calmly rather than under the pressure of some new, shocking revelation."

With news that three more torture memos are to be released this week, it seems like it's time to stop being side-tracked by media torture revelation rollercoasters. We must simply begin a comprehensive, no-immunity granted investigation. Because we are running out of time, as Daphne Eviatar points out on the Rachel Maddow show:

"MADDOW: So of the big potential crimes that could be investigated from
the Bush era, which of them would pose or could pose statute of limitations
EVIATAR: Well, the biggest one really is torture.
There is an eight-year statute of limitations when it comes to prosecuting
torture. And we know and there‘s been strong evidence that there was
torture including waterboarding and all sorts of bizarre humiliations of
detainees at Abu Ghraib and possibly also at Guantanamo Bay starting very early
on in 2002.
Now if you give that eight years, that means by 2010 it could be too late to prosecute."

Yes, as Eviatar points out, the statute of limitations could be extended, and John Conyers is working to do that, but it would be better to operate within existing law than hope that Congress will before 2010 vote to extend the statute of limitations. It would take an immense amount of political capital to do that.

If I were cynical...I would suggest that perhaps this is part of the Obama "avoid investigations" strategy - reveal a few memos at a time, and above all take one's time in everything related to detention and interrogation - a year to close Guantanamo, six months to review interrogation and rendition, etc. Before you know it, 2010 rolls around, and the test of integrity - do you have the will to prosecute? - is now null.

We already know that there is some truly f*ked up stuff in those memos, and that the regulatory processes that would normally prevent a CIA torture program were distorted and ignored by the executive branch. Take this for instance from the Newsweek article quoted above:

"'I now know we were not fully and completely briefed on the CIA program,'
Senate Intelligence Committee chairwoman Dianne Feinstein told NEWSWEEK. A U.S. official disputed the charge, claiming that members of Congress received more
than 30 briefings over the life of the CIA program and that Congressional intel
panels had seen the Red Cross report. But the CIA insisted that the report be
treated as if it had higher than top-secret classification, precluding any
public discussion of its contents."

Feinstein versus anonymous? Talk about having no one to root for. Feinstein says "hey, we were completely deceived! Ain't that something!" and the anonymous official (from which Administration? Obama's?) says that people were briefed in detail. Since the role of these intelligence committees is to provide oversight, it is extremely important to lay blame at their feet as well and make sure that future committees are given the tools and privileges they need to actually conduct oversight and blow whistles when needed. Why is it seemingly not a big deal that the intelligence committees completely sucked at their job? We could have put children in the position of Feinstein and co. and they would've done a better job. So I think the role of the intelligence committees must be reevaluated as well.

That there are serious problems in the way we conducted the "war on terror" during the Bush Administration is now clear as day. Instead of waiting for some sort of critical mass of flashy news leaks from the Obama Administration, we should encourage criminal investigations to begin now. It wouldn't be a bad thing to have an independent investigation in charge of what is leaked and what is not, who is tried and who is not, what evidence is revealed and what is not. We really don't need something as shameful, embarrassing and criminal as what happened over these past 8 years controlled by White House spin doctors.

Update/Correction: I thought these three torture memos were going to be released this week. I was wrong and should've read more carefully. Yeesh. According to Newsweek: "But the White House has sided with Holder. Faced with a court deadline in a Freedom of Information Act lawsuit regarding the memos filed by the ACLU, Justice lawyers asked for a two-week extension 'because the memoranda are being reviewed for possible release.'"

Noble, but the slow-going continues.

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