For weeks, there has been a concerted effort in both Congress and the White House to contain the scandal over the CIA torture tapes, while giving the impression of a serious effort to investigate. This week’s House Intelligence hearing seemed to confirm the worst suspicions along these lines as both Democrats and Republicans offered a rogue employee theory to explain the destruction — and in the process, relieve themselves and the Administration of serious blame.
After the sealed hearing on Wednesday, Rep. Pete Hoekstra, R-Mich, voiced the theory: “It appears he got direction to make sure the tapes were not destroyed. . . . I believe there are parts of the intelligence community that don’t believe they are accountable to Congress and may not be accountable to their own superiors in the intelligence community, and that’s why it’s a problem.” Well, not exactly. The problem is the one word that neither Democrats nor Republicans uttered after the hearing: torture. Both parties are still closely following a script to avoid any mention of the fact that Congress was aware of an official torture program and that these tapes contains evidence of that crime ordered by the President of the United States.Instead, members are going to portray the “real problem” as the sense of unaccountability in the intelligence field — a perfect beltway spin that allows them to express outrage while avoiding any of the truly embarrassing questions.
The decision to give these investigations to the House and Senate Intel Committees was a curious move if the intention was a real investigation. After all, it was the ranking members of both parties on these committees who were informed of both the torture program and the plan to destroy the tapes but did nothing to disclose such illegality. So now we have a rather odd situation. The Justice Department has refused to appoint an independent prosecutor and will now effectively investigate itself (and as it is arguing in court that the CIA had a perfect right to destroy the tapes, see here). On the congressional side, the very two committees accused for failing to act will now investigate their own roles as well as the actions of the executive branch.
Even with some stiff competition in the last few years, this may be the most impressive spin of a scandal in history. If all goes right, the investigation will focus on the technical issue of obstruction of justice while no one will acknowledge the crime recorded on the tapes.The rogue employee has been designated as Jose Rodriguez, the former head of the CIA’s National Clandestine Service who is now insisting on immunity for any testimony. Everyone from members of the committee to White House officials to CIA lawyers are insisting that the advised against the destruction — but conspicuously omitting any action to reveal of proposed criminal act in such destruction or a confirmed criminal act in the torture of suspects.
There is a common view that there are simply too many influential people to have a full investigation to occur. We now know that White House officials and Justice Department officials were aware of this plan to destroy evidence. According to sources, at least four top White House lawyers discussed the issue between 2003 and 2005. This would put the discussions at a date shortly before Gonzales took over as Attorney General. It would also show that he knew of the destruction plan as Attorney General despite the demand for such evidence by Congress and the courts. It would also mean that Gonzales was involved in another alleged criminal act. He was previously involved in pushing the unlawful electronic surveillance program, even appearing at the hospital bed of John Ashcroft to override objections within the Justice Department. He was also the author to the infamous torture memo and now appears to have be a party to a plan to destroy evidence of such torture. It also appears that he did not reveal this involvement to Congress in his confirmation hearings.
Reportedly also involved were David Addington, counsel to Vice President Dick Cheney and is now his chief of staff; John Bellinger III, then senior lawyer at the National Security Council; and Harriet Miers, who succeeded Gonzales as White House counsel. Addington is particularly interesting given his appearance in virtually every scandal these days. He is known as an enabler for both Bush and Cheney, arguing for extreme assertions of executive privilege and supporting such things as waterboarding.While other officials deny it, the Times reported that one officials noted that there had been “vigorous sentiment” among some top White House officials to destroy the tapes.
The disclosure puts the scandal literally next door to the President and, on the crime of torturing suspects, leads directly to his desk. Yet, the Justice Department insists that it can see no conflict in investigating its own chief executive and staff.Of course, Attorney General Mukasey swore implausibly that he did not know what waterboarding is and, even when told, refused to acknowledge the various courts decisions defining it as torture. Since his confirmation, he has refused demands that he answer that question for the obvious reason that it would confirm that President Bush ordered criminal acts. Mukasey will now head an investigation involving the very subject of waterboarding.
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And now we learn today that those same House Leaders are indefinitely postponing bringing up contempt citations for Miers and Bolton to the floor. The given reason is that it would infringe on the spirit of bipartisan harmony needed to work with the President on an economic stimulus package.
Allow me a cri d’coeur at this point.
DC Appeals throws out Doe’s Alien Tort Claims and Torture Victim Protection Act claims against Exxon Mobil for specious reasons.
The Supreme Court refuses to grant cert on California’s suit against Enron (we KNEW Stoneridge was the death knell for that case)
Pre-emption is now the darling so long as it is from Bush era regulatory preambles.
Substantive due process is now the darling so long as it favors corporations
Immunity is steadily extended by the courts to shield Executive criminality.
Lawyers come up with arid theories justifying barbarities and government officials act on them.
Courts order in vain, Congress subpoenas in vain. Evidence is destroyed or brazenly withheld. Witnesses gagged. Privilege invoked. Statutes ignored, treaties ignored. The concepts of ubi jus, ibi remedium and tort seem moribund.
The Constitution itself forbids torture, and yet it is ordered. The law forbids warrantless wiretapping, yet it too is ordered.
What is happening to American Law?
Here in my quiet study, the walls are lined with bookcases filled to capacity with books. Most about law and the workings of law in society. It all reflects my youthful idealism that was grown in the Warren Court era, that law could be made to better the lot of the people and that the law was binding on all actors in the national drama.
Now I see such a shambles of our process, that it makes me dispair. Law was never meant to be subordinated to the partisan process and twisted to partisan aims, nor was it meant to oppress the poor and favor the wealthy.
George Mason, ever astute, warned back in 1788:
“The Judiciary of the United States is so constructed & extended, as to absorb and destroy the Judiciarys of the several States; thereby rendering Law as tedious intricate and expensive, & Justice as unattainable, by a great Part of the Community, as in England, and enabling the Rich to oppress & ruin the Poor.”
And that is exactly what has happened: look at the preemption of the state courts in tort law and the steadily shrinking standing of the “commons”
He also warned:
“This Government will set out a moderate Aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a Monarchy, or a corrupt tyrannical Aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”
He was wrong here, we got both; we have in effect a President who stands for and is the mouthpiece of an aristocracy of power, but who increasingly claims monarchical powers to use on their behalf.
This mess is not what the Framers intended; we have gone seriously astray.
Ah … but this is the point at which serious thinkers, present company delightfully included, must decide what in fact will be our next moves. If retribution for the scores of laws that have been systematically and systemically violated is the objective – I fear our Congressional leaders suffer from scoliosis for a number of reasons – not excluding complicity – from either of the leading denominations.
However, if our objective is actually and dramatically re-joining the civilized world and re-engaging our international neighbors with a sense of humility, in our life-times – immunity is going to be granted globally. This will be a hard pill to swallow, because many of us, in our worst moments, would prefer many heads on many sticks. It doesn’t seem though, that accountability after-the-fact carries the same urgency as recreating a cohesive international community. Restoration of our freedom and returning to a representative democracy seems to be a much more burning issue. There will be and abundance of investigative journalists more effectively excoriating the offenders outside the legal system – however, not until restrictions of our freedoms are disemboweled and investigative journalism is not punishable by State kidnapping and torture.
I got it. My question was mostly rhetorical.
At some point, somebody has to say “OK, we should probably stop digging now”.
Bush et al want(s) all of the power and privilege but doesn’t want to take responsibility when it all goes wrong – ONLY if it all goes right.
It’s childish, in my view.
JT is not alone in his cynicism.
I’m sure impeachment does not quite cover it, for me, but I do want something for the history books – before the next term.
Patty,
What I think is behind the collective reluctance on the Hill to pursue torture investigations vigorously is this:
The rendition/torture network is not new. It dates back to before Bush. It is possible that many Democrats in positions of power at one time or another figuratively “signed off” or at least acquiesced by silence in what became a hoary tradition.
There was/is most likely a tacit approval of this practice; a “necessary evil” to be reluctantly approved and thereafter remembered as little as possible. The public indignation our representatives display currently is very likely (with a few notable exceptions) for the benefit of the voters. Professor Turley’s cynicism is probably justified.
Reyes is a good man, but he is caught in the flypaper here like all of us. As Ridge said, we lost a tremendous amount of “soft power” when we as a nation collectively signed off on this barbarity.
In some ways, impeachment with torture as the high crime, may be the only way this country can restore a little of its former reputation abroad.
And regain the soul we sold here.
I think I agree with you, DW.
He is a ‘coward’ in that he has demonstrated his ultimate
unwillingness to stand on his own – by and for that which he pledged
– on two levels.
What was he fighting for, then, in the Army?
What is he working for, now, in Congress?
I’m asking…
Patty,
I was only speaking metaphorically…as you know I can’t write my way out of a paper sack… My public speaking skills are also at a similar low level!
I honestly regret attributing “cowardice” to Rep. Sylvestre Reyes’. He is a braver, more courageous individual than I, and has served the country in situations of physical risk. I can’t gainsay his oft-proven valor.
But even a person of proven physical and moral courage can act from political calculation and that is what must behind his baffling silence on the issue of torture.
Even though brevity is not your strong suit, I’d read it.
There are editors, too.
Perhaps you would consider doing a Series instead, and go on the interview/lecture circuit. No lack of material, that’s for sure.
Patty C,
I don’t know if you caught Sylvestre Reyes this morning on CSPAN. When asked point-blank if waterboarding/torture was illegal, he equivocated and said that now it has been forbidden but at the time of the tapes he did not know.
Such astounding cowardice! Maybe I will summon up my waning powers and write a book entitled “Profiles in Modern American Political Cowardice”. Only problem is that nobody will publish a 2,000 page book anymore……..
“The legal theories adduced in the 2002 advisory opinion from the Pentagon study group were simply wrong. The Executive in his role of Commander-in-Chief in wartime does not have unlimited plenary powers to do anything he pleases. Torture could not be legally ordered.”
Exactly. They made it up.
Wonderful summary.
Nothing to add except that the real rogues are our government-all three branches.
If there is ever to be remedies and justice done, it will have to be in some off-shore venue, I’m afraid. “Service-Protection” Act indeed! More accurate would be “Executive Branch Protection Act.”
What is most galling, outrageous to the conscience even, is that glaring absence in the ongoing discussions of the word “torture”.
Waterboarding is torture. Waterboarding is putting a person coercively in fear of his life with the goal of extracting information.
That is plainly illegal. Already illegal under statute and treaty, and were illegal at the time done. End of story.
The legal theories adduced in the 2002 advisory opinion from the Pentagon study group were simply wrong. The Executive in his role of Commander-in-Chief in wartime does not have unlimited plenary powers to do anything he pleases. Torture could not be legally ordered.
If there ever could be a “high crime and misdemeanor” worthy of impeachment it would be a President or Vice President of the United States ordering or authorizing the torture of anyone, US Citizen, alien, enemy combatant, or whatever.