War Crimes Not For Nuremberg and Not For The Hague and Certainly Not For DC

This may be simply a reference note – something that could have vast implications in a year, or fade into nothing. But it should be noted, for the record. The president and all key members his administration have committed what are clearly war crimes. There’s no doubt now. The question is whether they will get a pass, from those who are charged with enforcing our laws, from those who enforce international law, however haphazardly, and from the American public, who don’t like anyone telling us we, or our leaders, are absolutely wrong. Of course, Americans could easily shrug – you do some things because they have to be done – but the rest of the world may not.  

 

The story broke Wednesday, reported by ABC News, on Thursday, April 10, the Associated Press was filling in the details:  

 

Bush administration officials from Vice President Dick Cheney on down signed off on using harsh interrogation techniques against suspected terrorists after asking the Justice Department to endorse their legality, The Associated Press has learned. 

 

The officials also took care to insulate President Bush from a series of meetings where CIA interrogation methods, including waterboarding, which simulates drowning, were discussed and ultimately approved.

 

Ah, the president was kept safe. He didn’t attend the meetings.

 

What the AP has is an intelligence official familiar with the meetings describing them Thursday to the AP – confirming the details first reported by ABC News – but saying this all has to do with the memos John Yoo and others at the Department of Justice wrote in 2002 and 2003, saying what the world thought of as torture, and what had been agreed to by treaty actually was torture, was not really torture. Inflicting intense pain and all the rest, in order to hear what you wanted to hear, was a legitimate exercise of executive authority – the commander-in-chief can choose what war tactics he thinks are best, no matter what the law says. The constitution says so – depending on how you look at it.

 

So we get this:

 

“If you looked at the timing of the meetings and the memos you’d see a correlation,” the former intelligence official said. Those who attended the dozens of meetings agreed that “there’d need to be a legal opinion on the legality of these tactics” before using them on al-Qaida detainees, the former official said.

 

The meetings were held in the White House Situation Room – Cheney, the Attorney General John Ashcroft, Secretary of State Colin Powell, CIA Director George Tenet and national security adviser Condoleezza Rice. They thought they were covered.

 

The reaction to news of these meeting was predictable:

 

Sen. Edward M. Kennedy, D-Mass., lambasted what he described as “yet another astonishing disclosure about the Bush administration and its use of torture.”

 

“Who would have thought that in the United States of America in the 21st century, the top officials of the executive branch would routinely gather in the White House to approve torture?” Kennedy said in a statement. “Long after President Bush has left office our country will continue to pay the price for his administration’s renegade repudiation of the rule of law and fundamental human rights.”

 

Yeah, and what is Ted going to do about it? And the ACLU wants an investigation:

 

“With each new revelation, it is beginning to look like the torture operation was managed and directed out of the White House,” ACLU legislative director Caroline Fredrickson said. “This is what we suspected all along.”

 

But who wants to investigate, even if they were complicit? Heck, they even got into role-play demonstrations:

 

At times, CIA officers would demonstrate some of the tactics, or at least detail how they worked, to make sure the small group of “principals” fully understood what the al-Qaida detainees would undergo. The principals eventually authorized physical abuse such as slaps and pushes, sleep deprivation, or waterboarding.

 

But you have to understand where those memos came from. This small group then asked the Justice Department to say whether using these interrogation methods would break domestic or international laws:

 

“No one at the agency wanted to operate under a notion of winks and nods and assumptions that everyone understood what was being talked about,” said a second former senior intelligence official. “People wanted to be assured that everything that was conducted was understood and approved by the folks in the chain of command.”

 

So they got the August 2002 Bybee memo – torture is “only extreme acts” causing pain “similar in intensity to that caused by death or organ failure.” And they got the March 2003 memo – you can do these things if military interrogators did not “specifically intend” to torture the bad guys. Both legal opinions have since been withdrawn. But back then, they must have felt they were on firm legal ground.

 

But there’s this:

 

Not all of the principals who attended were fully comfortable with the White House meetings.

 

The ABC News report portrayed Ashcroft as troubled by the discussions, despite agreeing that the interrogations methods were legal.

 

“Why are we talking about this in the White House?” the network quoted Ashcroft as saying during one meeting. “History will not judge this kindly.”

 

That is the issue, and it could be that not just history will be doing the judging.

 

So what did ABC News report? This:

 

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

 

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.

 

It doesn’t get any more specific than that. Over at Hullaballoo, “dday” says this:

 

The idea that these monsters were up in the White House deciding how many times a CIA agent could slap somebody is grotesque. These men and women – Cheney, Rumsfeld, Tenet, Ashcroft, Rice, and yes even that nice Mr. Colin Powell – should never be able to leave the United States again without the threat of indictment.

 

And as for all the rumors that Rice will be McCain’s running mate:

 

As the national security adviser, Rice chaired the meetings, which took place in the White House Situation Room and were typically attended by most of the principals or their deputies.

 

Yes, please Mr. McCain, make Condi your running mate so I can follow her around in an orange jumpsuit on the campaign trail.

The conclusion:

These people are scum and their willing subordinates Jay Bybee and John Yoo simply fed them what they needed to have retroactively – justification for their crimes, a “Golden Shield,” as they called it. That doesn’t make Bybee or Yoo blameless, but it puts it into perspective. The lot of them should be up at Nuremberg standing trial. And guess what, they knew it.

And as for Ashcroft worrying about history’s judgment:

The present isn’t judging you kindly. Historians are already calling this President the worst ever. But it’s really worse than that. This is a high-level crime syndicate being run out of 1600 Pennsylvania Avenue. History won’t just not judge this kindly. History will weep, and scream, and recoil.

 

The predictable response is to call for impeachment. It’s clearly warranted, but at this point impeachment is way too good for this crew. Indictment is more like it. Less martyrs, more felons.

 

Andrew Sullivan adds perspective:

 

What you see above is one of the techniques used at Abu Ghraib, one of the mildest forms of “enhanced interrogation”. It was approved by these principals – all along the line to waterboarding. If you ever believed that these kinds of tactics were “improvised” by people at the lowest level of the chain of command and managed to “shock” the president and his senior aides, when they were revealed, then you need to read this story…

 

Now absorb the fact that many of these techniques, including the one above, were explicitly and in detail, approved by the highest officers in the land. Including Condi Rice. She did so even after Abu Ghraib was known about and after Jack Goldsmith had withdrawn the OLC’s “legal” sanction.

 

So now what? See Marc Ambinder:

 

It is a fact that many liberal Democrats believe President Bush and other senior administration officials to be guilty of war crimes. It is my educated conjecture that, in a Democratic administration, there will be some DoJ political appointees and/or administration advisers who share that belief.

 

And he suggests the director of the CIA, Michael Hayden, knows what’s up. Ambinder points to the fact Hayden recently agreed to purchase legal liability insurance “for about two thirds of his agency’s workforce, including virtually all of the National Clandestine Service, precisely to protect against any future administration’s attempt to hold officers legally accountable for their actions.”

 

Then we get the speculation:

 

Another source of potential prosecutions comes, of course, from the Hague, although the failure of the US to participate in the ICC kind of puts the kibosh on that possibility.

 

It is within the realm of possibility that reports like ABC News’s are used by the government, by private citizens, or by international actors, to substantiate charges against the Bush administration, against CIA officers or against the Department of Defense.

 

And a caveat:

 

I’m not endorsing the idea of prosecuting anyone; I’m not calling President Bush or anyone else a war criminal; I’m not even saying that prosecutions will go forward; I’m just describing a scenario that may intrude upon our politics in 2009 and beyond.

 

Or it may go away. But it does make this from the New York Times make sense – “A new possible source of reimbursement for legal fees was created in 2006 by the Military Commissions Act, which requires the government to pay lawyers for C.I.A. and military officers facing lawsuits or criminal investigations for ‘authorized’ actions involving detention of suspected terrorists.”

 

So THAT’S what that was about.

 

At Time magazine, at their group blog, oddly called Swampland, Ana Marie Cox has a few things to say:

 

Ashcroft may be right that history will judge the administration harshly for its more explicit collusion in the use of torture but history might have to be the only judge: I don’t think those involved can be prosecuted under the definition of torture codified in the Detainee Treatment Act or the Military Commissions Act. (Which, the DoJ has recently said, made waterboarding and other techniques illegal.) It is possible that a judge could find them responsible under the statues that existed at the time… whenever that was, and whatever they were.

 

The timeline laid out by the ABC article isn’t clear as to whether these quasi-pornographic meetings (with choreography! I wonder if they also played charades) were still taking place after June 2004, when Jack Goldsmith withdrew John Yoo’s August 2002 memo, which held that “torture was limited to the infliction of physical pain at a level associated with organ failure or death, thus permitting all lesser forms of physical abuse.”

 

But, as our commenters know, the withdrawal of that memo did not stop the CIA from using techniques such as head slapping, stress positions, and waterboarding; my understanding is that withdrawal of that memo just made the legal ground the CIA was standing on a little more shaky.

 

It does sound like the meetings took place even after photos from Abu Ghraib showed up, which doesn’t change anything about the law, it just makes the meetings seem even more gross. Not that they weren’t already pretty f’in’ gross.

 

But this will go nowhere, as Jack Balkin points out::

 

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….

 

It’s important to understand the point I’m making here. It is not that certain members of the Bush Administration haven’t committed war crimes. I’m pretty certain that at least some of them have. The point rather is that it is very unlikely that they will ever be brought to justice for it, at least in our own country – despite the fact that there are statutes on the books which assert that the commission of war crimes violates our laws. That is not a normative recommendation. It is rather a prediction about power politics and about the deeply unjust world that we live in.

 

Mark Tushnet suggests something else here:

 

There’s a difference between “figuring out whether there’s a case to be made” and instituting a prosecution. I’ve been pushing the idea of an internal Church Committee like report on what happened, leaving it to the public to decide whether it approves of what Bush et al. did. My fantasy is that there would be a section simply describing the principles of liability laid out in the Nuremberg lawyers’ judgment – and let people draw their own conclusions about Yoo.

 

Josh Patashnik at the New Republic agrees:

 

I think this course of action has much to recommend it. Prosecuting conduct that was approved by the Justice Department of a duly elected administration, even if such approval was later revoked, is rightly out of the question – it’s absurd to expect individual CIA agents to judge for themselves what interrogation techniques are permitted by law.

 

But a detailed report airing the Bush administration’s dirty laundry, in addition to enabling the public to pass a final judgment on the matter, would also serve to weaken misguided Bush-era norms on questions of secrecy, executive privilege, and so forth. That’s a worthy end in and of itself. On some level it’s strange to think that the next president should deliberately set out to ratchet down the power of the White House relative to Congress (at least a little), but after Bush, it doesn’t seem like such an outlandish proposition.

 

But he adds this:

 

Just to be clear, I’m not advocating that Democrats make “prosecute Bush’s war crimes” a campaign issue (that would be suicidal), and even as a matter of law I’m suspicious of the idea. But the fact remains that the administration has engaged in conduct of rather dubious legality and a Democratic president should probably do something to distance him/herself from that conduct and make sure that it doesn’t set a precedent for future administrations.

 

Yeah, but see Damozel at Buck Naked Politics:

 

Did anyone ever doubt that certain top administration officials were involved every step of the way in authorizing the interrogation techniques used on al-Qaeda? Most of the people I know certainly thought so. Everyone, in fact, except my mom. So I am not surprised, though somehow I am quite shocked. There is quite a bit of difference between ‘knowing’ and knowing. And now the ‘highly placed sources’ have come out of the woodwork. What took you so long, highly placed sources?

 

And even the right is troubled. See Rick Moran at Rightwing Nuthouse:

 

There are some issues that you just don’t write about if you’re a conservative blogger looking to maintain or build your site. And one of those issues is torture and this administration’s blatant violation of the law in approving interrogation techniques that are universally recognized (outside of the right in America) as illegal.

 

I say universally recognized because the “enhanced” techniques that were apparently a topic of conversation many times by Bush Administration aides are clear violations of the UN treaty against torture (as amended) and the Universal Declaration of Human Rights. I won’t mention the Geneva Convention which may or may not apply as a governing instrument in this case.

 

But we needn’t worry. Those interrogation techniques violated US law as well – war or no war – and only by stretching the executive powers of the president farther than they have ever gone – beyond Lincoln, beyond Wilson, beyond Roosevelt – could even a fig leaf of legality be placed over this gigantic open wound that will continue to fester until we resolve to purge those who brought this evil upon us.

 

Bill Clinton may have sold the Lincoln bedroom for campaign contributions and used the White House for his carnal romps. But I don’t think that grand structure ever bore witness to the kinds of discussions held by Bush Administration aides as they coldly weighed the options of using various torture techniques on al-Qaeda suspects in our custody….

 

Worse that Bill Clinton? This is serious. But it shouldn’t go to The Hague:

 

Now certainly there is a strain of anti-Americanism at work in Europe and elsewhere overseas with regard to this issue as well as a smug, self-righteousness on the part of the European left that nauseates me.

 

… How dare they? They do not have the moral standing of a jackrabbit. For them to all of a sudden get their panties in a twist over American violations of international law when they spent decades ignoring the greatest, most heartless human butchers in world history is an example of monumental hypocrisy and moral blindness that a thousand years from now will be the shame of western civilization. And for the anti-American European left to climb atop this moral high horse now speaks of a selective outrage that should sicken anyone with an ounce of historical perspective and a modicum of human decency.

 

No. This is an American problem.

 

Yeah, but now what?