Sunday, December 28, 2008

This really smart professor suggests something we can do about the Bush regime's war crimes

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"Absent a reckoning for those responsible for torture and cruel, inhumane, and degrading treatment -- our own federal government -- the healing cannot begin."
-- David Cole, in "What to Do About the Torturers?"
in the Jan. 15 New York Review of Books

by Ken

It's a relief to find that some really smart people are worrying about some of the same stuff I am. On Friday, you'll recall, I asked, "Is there anything we can do about the criminals Chimpy the Prez and 'Big Dick' Cheney?" Note that I was referring to the full range of crimes committed by the Bush regime, the domestic ones (notably the plundering of the Justice Dept.) as well as the international ones (including what surely need to be treated as war crimes). Since then I've had a chance to look at the above-cited review-essay by David Cole, a Georgetown law professor (and, as he notes in a footnote, a member of the board of the Center for Constitutional Law).

Among the books considered, by the way, is the painstaking investigation of the story of torture at Guantanamo by the amazing British legal scholar-activist Philippe Sands, who made such an impression with his House Judiciary Committee testimony and TV appearance with Bill Moyers last May. Another of the books is The Trial of Donald Rumsfeld: A Prosecution by Book by Michael Ratner and the Center for Constitutional Rights. (This is where Professor Cole has occasion to note his connection to the Center, adding that "I did not take part in the efforts to have criminal proceedings initiated against Rumsfeld.")

Cole isn't optimistic about real war-crimes trials against the Bush regimistas, legally warranted though they may be. For one thing, they took pains to insulate themselves from any such possibility by "grant[ing] retrospective immunity to officials involved in the interrogation of al-Qaeda suspects in the wake of September 11" in the Military Commissions Act. For another, "The Justice Department's 'torture memo' would be a legal defense for any but the lawyers who wrote it."

And while it's technically possible for our suspected war criminals to be indicted and tried by tribunals abroad, Cole doesn't see that happening either: "As a matter of realpolitik, it is difficult to imagine any nation greeting the Obama administration with an international prosecution of former high-level US officials."

Still, Cole insists (bless him!), "Even if criminal prosecution seems unlikely, the acts of the past administration demand accountability." (The boldface is my embellishment.) He goes on to quote a statement from several months ago by Attorney General-designate Eric Holder:
Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution.... We owe the American people a reckoning.

Yes, Mr. Attorney General!

Cole argues, "Without prosecutions or an independent investigation, significant progress toward repudiating the administration's approval of cruelty and torture has already been made." He cites the Supreme Court's 2006 rejection of "President Bush's position that the Geneva Conventions do not apply to the conflict with al-Qaeda"; the military's return to the no-torture policy set out in the Army Field Manual; reports of the CIA's abandoning waterboarding; and positions taken by various other government officials against the use of torture.

However, he understands that this still isn't enough:
The United States has never taken full responsibility for the crimes its high-level officials committed and authorized. That is unacceptable. In the long run, the best insurance against cruelty and torture becoming US policy again is a formal recognition that what we did after September 11 was wrong -- as a normative, moral, and legal matter, not just as a tactical issue. Such an acknowledgment need not take the form of a criminal prosecution; but it must take some official form.

"We have been willing to admit wrongdoing in the past," he says, citing the official apology signed by President Reagan in 1988 for the Japanese wartime internments, including payment of reparations. "That legislation, a formal repudiation of our past acts, provides an important cultural bulwark against something similar happening again."

And he concludes:
We cannot move forward in reforming the law effectively unless we are willing to account for what we did wrong in the past. The next administration or the next Congress should at a minimum appoint an independent, bipartisan, blue-ribbon commission to investigate and assess responsibility for the United States' adoption of coercive interrogation policies. If it is to be effective, it must have subpoena power, sufficient funding, security clearances, access to all the relevant evidence, and, most importantly, a charge to assess responsibility, not just to look forward. We may know many of the facts already, but absent a reckoning for those responsible for torture and cruel, inhumane, and degrading treatment -- our own federal government -- the healing cannot begin.

Thanks, professor! That's something.
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1 Comments:

At 9:01 PM, Blogger drinkof said...

For various unfortunate reasons, criminal prosecutions are unlikely.

On the other hand, there is a mechanism which can make a substantial statement as to our dedication to the rule of law, and for which there is ample (and, for critics, inconvenient) precedent. Lawyers involved at various points of approving, and covering up, torture and related practices in their official capacity should face disbarment.

Yoo, Gonzales, Addington, for that matter, Jack Goldsmith (sorry, but the half-ass mea culpa doesn't cut it) and dozens more should answer for their actions.

Complaints as to criminalizing policy differences simply don't apply. Law practice is a privilege, not a right, and it's time the legal profession begin to purge its ranks of these practices.

And recall, Bill Clinton got his license to practice suspended for 5 years for whatever it was that he did. Surely Yoo, Gonzales or Addington's offenses are worth a couple of Clinton units (e.g., 10 years) of suspension time?

 

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