Of Course You Know, This Means War Crimes

by dday

I read with interest Digby’s post about potential Congressional inquiries into Bush Administration abuses, as well as Bush’s own efforts to pre-emptively pardon his whole team and use executive privilege even after leaving the White House. I agree that this is an unlikely course of action for a President-elect already sounding notes of bipartisanship and unity, as well as a Congress which hasn’t mustered the courage to challenge Bush on much of anything during his reign. Obama’s as much as said this:

In addition, Mr. Obama has expressed worries about too many investigations. In April, he told The Philadelphia Daily News that people needed to distinguish “between really dumb policies and policies that rise to the level of criminal activity.”

“If crimes have been committed, they should be investigated,” Mr. Obama said, but added, “I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”

You’d have to basically play dumb not to assert that crimes have been committed. Based on what we already know, before launching the first investigation, we have a clear sense of what to call the abuses that have taken place. They are war crimes.

There are bound to be casualties when any nation veers from its domestic and international obligations to uphold human rights and international humanitarian law. Those casualties are etched on the minds and bodies of many of the 62 former detainees interviewed for this report, many of whom suffered infinite variations on physical and mental abuse, including intimidation, stress positions, enforced nudity, sexual humiliation, and interference with religious practices. Indeed, I was struck by
the similarity between the abuse they suffered and the abuse we found inflicted upon Bosnian Muslim prisoners in Serbian camps when I sat as a judge on the International Criminal Tribunal for the former Yugoslavia in The Hague, a U.N. court fully supported by the United States. The officials and guards in charge of those prison camps and the civilian leaders who sanctioned their establishment were prosecuted—often by former U.S. government and military lawyers serving with the tribunal— for war crimes, crimes against humanity and, in extreme cases, genocide.

Patricia M. Wald, the writer of that foreward, served on the DC Court of Appeals and the International Criminal Tribunal for the former Yugoslavia. She was also appointed by the Bush Administration to serve on the President’s Commission on the Intelligence Capabilities of the U.S. Regarding Weapons of Mass Destruction. This is not a DFH. This is a jurist who has examined the evidence.

So when people like Robert Litt seek to excuse these actions by the executive, it’s very clear what they are excusing – war crimes.

Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).

“It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries,” Litt said. “It would really spend a lot of the bipartisan capital Obama managed to build up.”

If you’re arguing that Bush Administration officials should be shielded and protected from prosecution in the name of comity and bipartisanship, you are saying that war crimes aren’t actionable if the President or his staff commits them. Which is fine if you’re Richard Nixon. But that’s not the model people had in mind on Election Day, I gather.

Despite the persistent belief that partisanship is corroding the body politic, actually it’s quite the opposite. It’s “bipartisanship” – or at least the phony rhetoric of it, which is always practiced against progressive change and for the status quo – that has destroyed the rule of law in this country. As Glenn Greenwald notes:

This brazen defense of lawlessness articulated by Litt is now as close to a unanimous, bipartisan consensus across the political establishment as it gets. This is what has been advocated by everyone from David Broder to top Obama adviser Cass Sunstein. There are few things more difficult than finding someone of prominence in the establishment that disagrees with this view. Our political class has decided that high political officials — particularly the President and those closest to him — are literally exempt from the rule of law.

Nobody believes that “policy differences” should be criminalized. That’s a strawman — an obfuscating term — erected by those who are defending presidential lawbreaking license without having the intellectual honesty to admit they’re doing that. This is about having laws in place that clearly and explicitly say that “X shall be a felony,” only to then watch as the President does X, and thereafter have our political establishment announce that it’s more important to avoid partisan anger than it is to hold high political officials accountable under the rule of law.

Here, X = “eavesdropping on Americans with no warrants,” and “torturing detainees,” and “destroying evidence relating to investigations,” and “interfering in criminal prosecutions for political purposes.” Those are crimes — felonies — in every sense of the word, not policy differences. And they are all actions in which Bush officials have clearly engaged […]

As political scientists have documented, one hallmark of tin-pot tyrannies is the belief that political leaders should be liberated from the constraints of law as long as that helps to achieve good results. That’s the defining mentality of those who crave benevolent tyrants — our Leaders have so many Good and Important Things to do for us that they can’t be distracted and weighed down by abstract luxuries like upholding the rule of law. That’s now clearly the prevailing consensus of our political establishment.

Again, I don’t expect much movement against Bush Administration abuses. The moles inside the Justice Department would probably obfuscate and leak and embarrass if anything was attempted, and by the way key Democrats are implicated in the abuses through their complicit silence. In fact, this Robert Litt character himself is defending intelligence officials in ongoing lawsuits and may seek to benefit from a lack of prosecution against his own clients. But it would be nice if anyone owned up to the truth – that “moving on” and “healing the divisions” of the previous eight years is tantamount to a get out of jail free card for war crimes.

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