Complicity -- and Accountability -- on Torture

By Dan Froomkin
2:20 PM ET, 05/ 4/2009

As torture chronicler extraordinaire Mark Danner has pointed out, one of the great paradoxes of the torture scandal "is that it is not about things we didn't know but about things we did know and did nothing about."

It was, for instance, in December 2002 that Dana Priest and Barton Gellman first reported on the front page of the Washington Post that American interrogators were subjecting detainees to "stress and duress" techniques. James Risen, David Johnston and Neil A. Lewis first told the world about waterboarding in May 2004.

But that doesn't mean that the rest of us are as guilty as the people who committed the crimes -- or that those who ordered those crimes should avoid accountability.

Jacob Weisberg now joins Michael Kinsley, however, in arguing that the nation's collective guilt for torture is so great that prosecution is a cop-out. Kinsley, as I noted on Friday, wrote: "If you're going to punish people for condoning torture, you'd better include the American citizenry itself...Prosecuting a few former government officials for their role in putting our country into the torture business would not serve justice or historical memory. It would just let the real culprits off the hook."

And here is Weisberg, writing in Newsweek: "By 2003, if you didn't understand that the United States was inflicting torture upon those deemed enemy combatants, you weren't paying much attention. This is part of what makes applying a criminal-justice model to those most directly responsible such a bad idea. The issue we need to come to terms with is not just who in the Bush administration did what, but our collective complicity in their decision....Prosecuting Bush and his men won't absolve the rest of us for what we let them do."

There are two big problems with this argument, however. While it's true that the public's outrage over torture has been a long time coming, one reason for that is the media's sporadic and listless coverage of the issue. Yes, there were some extraordinary examples of investigative reporting we can point to, but other news outlets generally didn't pick up these exclusives. Nobody set up a torture beat, to hammer away daily at what history I think will show was one of the major stories of the decade. Heck, as Weisberg himself points out, some of his colleagues were actually cheerleaders for torture. By failing to return to the story again and again -- with palpable outrage -- I think the media actually normalized torture. We had an obligation to shout this story from the rooftops, day and night. But instead we lulled the public into complacency.

Secondly, while it's certainly worth exploring why any number of people were either actively or passively complicit in our torture regime -- and I'm all for some national self-flagellation here -- that has nothing to do with whether senior administration officials willfully broke the law, and whether they should be held accountable. It doesn't change the law.

Salon blogger Glenn Greenwald has repeatedly marveled at the Washington elite's nearly lockstep opposition to criminal prosecutions. Here he is last month: "The very same pundits and establishment journalists who today are demanding that we forget all about it, not look back, not hold anyone accountable, are the very same people who...played key roles in hiding, enabling and defending these crimes. In light of that, what is less surprising than the fact that, almost unanimously, these very same people oppose any efforts to examine what happened and impose accountability?"

And here he is in January: "Now added to the pantheon of 'liberal' dogma is the shrill, ideological belief that high government officials must abide by our laws and should be treated like any other citizen when they break them....Apparently, one can attain the glorious status of being a moderate, a centrist, a high-minded independent only if one believes that high political officials (and our most powerful industries, such as the telecoms) should be able to break numerous laws (i.e.: commit felonies), openly admit that they've done so, and then be immunized from all consequences. That's how our ideological spectrum is now defined."

Meanwhile, Philip Gourevitch writes for the New Yorker about who, exactly, has been held accountable thus far: "It was exactly five years ago that some of the photographs that Charles Graner and his comrades took at Abu Ghraib were aired on CBS's 'Sixty Minutes' and published in this magazine. At that time, the Administration claimed that [Corporal Charles A. Graner, Jr., the military-police officer in charge of the night shift] was the mastermind of the abuse represented in the photographs, and that they showed nothing more than the depravity of a group of rogue soldiers who had fallen under his sway. Yet it became almost immediately apparent—and has been confirmed repeatedly in the years since, most recently with President Obama's decision to release four Bush Administration memorandums seeking to establish a legal justification for the use of torture—that the Abu Ghraib photographs showed not individuals run amok but American policy in action."

Graner remains in prison, serving ten years. "His superior officers enjoy their freedom, and C.I.A. interrogators, who spent years committing far worse acts against prisoners than Graner did even in the darkest days at Abu Ghraib, have been assured immunity.

"But, if full justice remains impossible, surely some injustices can be corrected. Whenever crimes of state are adjudicated—at Nuremberg or The Hague, Phnom Penh or Kigali—the principle of command responsibility, whereby the leaders who give the orders are held to a higher standard of accountability than the foot soldiers who follow, pertains. There can be no restoration of the national honor if we continue to scapegoat those who took the fall for an Administration—and for us all."

Senate Judiciary Committee Chairman Patrick Leahy writes in a Boston Globe op-ed about the recently released "torture memos": "This was not an 'abstract legal theory,' or 'hypothetical,' as Alberto Gonzales dismissively described in testimony before the Senate Judiciary Committee. These were specific techniques, authorized by high-ranking US government officials and used on real people. We have prosecuted people for these kinds of acts against Americans, and condemned other nations for sanctioning these methods....

"The apparent predetermined outcome of these legal memos raises the question of where the demand for this outcome and for approving these policies arose. Press accounts indicate that these were not the results of requests from CIA officers on the ground and in the field, but arose through pressure from senior administration officials in Washington....

"I still believe my proposal for a Commission of Inquiry remains the best way to move forward with a comprehensive, nonpartisan, independent review of what happened. Torture was and is against the law. Condoning it puts the men and women who bravely serve in our own armed forces at risk. It disregards the values that make this country great. Torture is illegal, immoral, and wrong. That is why Obama ended these practices.

"Let us reaffirm our guiding principles as a nation by joining together to come to a shared understanding of what happened and why. The risk of failing to learn from our mistakes is that they will be repeated."

I wrote on Friday (also see Harper's blogger Scott Horton) about a video in which former secretary of state Condoleezza Rice seemingly restated President Nixon's view that if the president does it, it's not illegal. "[B]y definition, if it was authorized by the president, it did not violate our obligations under the Conventions Against Torture," she said, after being questioned by Stanford University students.

Alec MacGillis writes in The Washington Post about Rice trying to explain her torture decisions yesterday -- to a fourth-grader. And afterward, Rice was pressed to clarify her remarks by an Al Jazeera television crew.

This time, Rice said: "Let me be very clear: The president said he would not authorize anything that was illegal. It was not legal because he authorized it; it was because he said he would do nothing illegal and the justice department and the attorney general said that it was legal."

Mark Mazzetti and Scott Shane, writing in the New York Times, take us back to Bush's issuance in June 2003 of the standard proclamation to mark the United Nations International Day in Support of Victims of Torture.

"The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment," the proclamation said.

Not surprisingly, the CIA freaked.

But that's just the top to a long article -- full of anonymous sources -- chronicling how the "consensus of top administration officials about the C.I.A. interrogation program, which they had approved without debate or dissent in 2002, began to fall apart."

They write: "The real trouble began on May 7, 2004, the day the C.I.A. inspector general, John L. Helgerson, completed a devastating report. In thousands of pages, it challenged the legality of some interrogation methods, found that interrogators were exceeding the rules imposed by the Justice Department and questioned the effectiveness of the entire program."

But even after 2006, "Mr. Cheney and top C.I.A. officials fought to revive the program. Steven G. Bradbury, the head of the Justice Department's Office of Legal Counsel and author of the recently declassified 2005 memorandums authorizing harsh C.I.A interrogations, began drafting another memorandum in late 2006 to restore legal approval for harsh interrogation."

And: "When Mr. Bush finally reauthorized C.I.A. interrogations with an executive order in July 2007...forced nudity was banned, and guidelines for sleep deprivation were tighter....But Mr. Cheney and his allies secured other victories. The executive order preserved the secret jails and authorized a laundry list of coercive methods."

Peter Finn and Carrie Johnson write in The Washington Post that the recently resolved case of Ali Saleh Kahlah al-Marri "suggests that as the government pushes forward with plans to prosecute detainees held at Guantanamo Bay, Cuba, it may again have to accept lesser sentences for those who were subjected to physical and psychological abuse."

Bush had Marri "swept out of federal court and into a U.S. Navy brig so he could be interrogated without the legal protections afforded by the criminal justice system."

But: "By removing Marri from the courts in June 2003, the Bush administration effectively sacrificed the ability of prosecutors to throw the book at Marri when he was returned to the system, military and legal experts say."

They also write: "The fear that some Guantanamo cases are not prosecutable in federal court has sharpened debate within the Obama administration about the need to maintain military commissions, in which the rules of evidence are less stringent, according to sources involved in the discussions."

Michael Isikoff and Mark Hosenball write for Newsweek that "a Justice Department special counsel is quietly ratcheting up his probe into... the CIA's destruction of hundreds of hours of videotape showing the waterboarding of two high-value Qaeda suspects."

And Deepak Chopra writes in a San Francisco Chronicle op-ed: "This is one of those moments when painful truth is the only way to heal.

"People don't want to hear about bad things from the past when the present is loaded down with more than enough bad things. But inconvenience and fatigue aren't good excuses. There is anger from the left — and not just the left — about an inexcusable Bush policy. There are demons in the closet, and shutting the door on them won't make them go away. Better to deal with it now, when a new president's idealism is still fresh. It will take idealism to face the torture issue. Otherwise, any truth commission will either turn into a vengeance squad or go the other way and sweep too much under the rug.

"The more the right wing tries to justify the torture policy, the worse they look. Using national security to justify torture is just a bald-faced attempt to hide the truth. What really went on was simple. The Bush administration felt that Al-Qaida could not be defeated while still preserving what America stands for."

Quick Takes

By Dan Froomkin
12:48 PM ET, 05/ 4/2009

Ryan J. Donmoyer writes for Bloomberg: "President Barack Obama proposed to raise about $190 billion over the next decade by outlawing three offshore tax-avoidance techniques used by U.S. companies such as Caterpillar Inc. and Procter & Gamble Co. He also would make it riskier for Americans to stash money in tax-haven banks. The tax system is 'full of corporate loopholes,' Obama said at the White House today.

Karen DeYoung writes in The Washington Post that intelligence officials have told Obama that the situation in Pakistan is dire, with security deteriorating rapidly, "particularly in the mountains along the Afghan border that harbor al-Qaeda and the Taliban." But, she writes, "Obama has only limited options for dealing with it. Anti-American feeling in Pakistan is high, and a U.S. combat presence is prohibited. The United States is fighting Pakistan-based extremists by proxy, through an army over which it has little control, in alliance with a government in which it has little confidence."

Shailagh Murray writes in The Washington Post that Obama's higher-education proposals "could transform the financial aid landscape for millions of students while expanding federal authority to a degree that even Democrats concede is controversial. At stake is a plan to expand the Pell Grant program, making it an entitlement akin to Medicare and Social Security."

Alex Isenstadt writes for Politico: "Republicans looking to recover from Bush-era defeats are turning to an unlikely source for advice: top aides to former President George W. Bush. Former White House press secretary Dana Perino, former Bush counselor Ed Gillespie and former White House deputy press secretary Tony Fratto are among those set to provide words of wisdom to House Republican press secretaries at their annual workshop this Friday."

Michael Weisskopf and Michael Duffy write for Time: "Longtime financial backers of the 43rd president have raised more than $100 million for a presidential library at Southern Methodist University in Dallas that will house his official papers, sources close to Bush told Time. Much of the money was collected in the 100 days or so since Bush left the White House, a pace much faster than that of his recent predecessors."

Emily Berman of the Brennan Center for Justice at NYU Law School proposes that Congress pass legislation clearly delineating the limits of executive privilege. "Functioning properly, executive privilege creates a tightly drawn zone of confidentiality around the President to ensure that advisors provide him with candid advice while simultaneously allowing Congress access to the information it needs to engage in its core constitutional functions of policy-making and oversight," she writes. By contrast, the way things work now, "a self-interested Executive is able to determine unilaterally whether the information will be disclosed."

From the White House Blog on Friday: "[T]he White House is taking steps to expand how the Administration is communicating with the public, including the latest information and guidance about the H1N1 virus. In addition to WhiteHouse.gov, you can now find us in a number of other spots on the web." White House pages on Facebook, MySpace and Twitter now supplement previous pages on Flickr, Vimeo, YouTube and iTunes.

Rachel L. Swarns writes in the New York Times that "Marian Robinson, President Obama's mother-in-law,...is unexpectedly and decidedly savoring her new life."

Roxanne Roberts and Amy Argetsinger blog for The Washington Post that the president and the first lady took "a twilight stroll, hand in hand on the South Lawn of the White House on Saturday night -- this after an early date-night dinner at super-fancy Citronelle. (He had the 72-hour short ribs; she had the lobster burger.)"

Obama's Empathy Litmus Test

By Dan Froomkin
12:30 PM ET, 05/ 4/2009

Who knew such an innocent-sounding word could get people so riled up? But conservatives are finding much to hate in President Obama's assertion on Friday that he considers "empathy" a prerequisite for a Supreme Court justice.

In a surprise appearance in the middle of a White House press briefing on Friday, Obama confirmed that Justice David Souter is stepping down and talked a bit about what he's looking for in a replacement: "I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

"I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes."

Josh Gerstein writes for Politico that "empathy" became a central topic on the Sunday talk shows: "'What does that mean? Usually that's a code word for an activist judge,' Sen. Orrin Hatch (R-Utah) said on ABC's 'This Week.' He said a judge needs to 'be fair to the rich, the poor, the weak, the strong, the sick [and] the disabled.'

"'I may have empathy for, for the little guy in a fight with a big corporation, but the law may not be on his side. So I think that's a concern,' former Republican Party Chairman Ed Gillespie said on NBC's 'Meet the Press.'"

But, as Gerstein writes: "It remains to be seen whether Republicans can gain traction among the general public in arguing that judges need to be fair to 'the rich' and 'the strong.'"

Many conservatives apparently see empathy -- which involves understanding others' feelings -- as a zero-sum game.

"He says he wants to appoint judges who show empathy, but what does that mean?" Wendy Long, chief counsel to the Judicial Confirmation Network, told The Washington Post. "Who do you have empathy for? If you have empathy for everybody, you have empathy for nobody."

There will inevitably be great drama associated with who Obama eventually picks, as far as their background, their gender, their ethnic origin, their age -- and whether White House vetters fail to pick up something important. And conservative activists will inevitably fight whoever Obama settles upon. But realistically speaking, this isn't shaping up a as a fight for the ages.

As Michael A. Fletcher and Paul Kane write in The Washington Post: "With the Republican opposition in the Senate weakened by the November elections and last week's defection by Sen. Arlen Specter of Pennsylvania, few conservatives held out much hope that they could block an Obama nominee."

Dan Balz writes in The Washington Post: "The replacement of Souter, who has been a reliable part of what constitutes a liberal bloc on the high court, is not likely to shift the bench's ideological balance. Obama will almost certainly reinforce the liberal bloc and, with the nomination of a youthful justice, conceivably reinvigorate that wing of the court for many years to come....

"On a court that is devoid of Latinos and has just one woman and one African American, Obama could instantly alter the gender or racial balance in a significant way. That is why so much of the early speculation on a successor has focused on women in particular."

Joan Biskupic writes for USA Today: "As Obama and his aides screen candidates to make the first Democratic nomination in 15 years, well-established — and often overlapping — judicial models can guide his choices and shape public expectations.

"For example, all nine of the current justices are former U.S. appeals court judges, elevated by presidents (from Gerald Ford to George W. Bush) who followed a familiar script of looking to lower courts for nominees.

"During the campaign, however, Obama expressed his preference for a justice with real-world experience in the mode of former California governor Earl Warren, who presided as the court struck down school segregation and helped generate a civil rights revolution."

Obama Lances the Bubble (at Least for a Night)

By Dan Froomkin
11:40 AM ET, 05/ 4/2009

It's always worth celebrating when a president willingly pierces the White House bubble.

Evan Thomas writes in Newsweek with this bit of news: "Mindful of his predecessor, Barack Obama seems to be trying harder to make sure he hears all sides. On the night of April 27, for instance, the president invited to the White House some of his administration's sharpest critics on the economy, including New York Times columnist Paul Krugman and Columbia University economist Joseph Stiglitz. Over a roast-beef dinner, Obama listened and questioned while Krugman and Stiglitz, both Nobel Prize winners, pushed for more aggressive government intervention in the banking system."

Krugman and Stiglitz have both long argued that Obama's financial rescue plans won't work -- and stick the taxpayers with a bill that should be paid by banks and their shareholders. They argue that Obama is overly dependent on top advisers who have excessively close ties to Wall Street. And they both support temporarily nationalizing banks that are too weak to survive on their own.

Oh, to be a fly on that wall. (Or to have one of them, say, blog about it.)

In an April 14 interview with David Leonhardt of the New York Times, just published over the weekend, Obama had defended his economic advisers -- while at the same time hinting that Krugman and Stiglitz might be getting a hearing.

"I have enormous respect for somebody like Joe Stiglitz," Obama said. "I read his stuff all the time. I actually am looking forward to having these folks in for ongoing discussion. Somebody who has enormous influence over my thinking is Paul Volcker, who is robust enough that, having presided over the Carter and Reagan years, he’s still sharp as a tack and able to give me huge advice and to provide some counterbalance."

Newsweek's Thomas was not overly impressed. "It will take more than a few dinner parties to avoid the fate of presidents who lost touch with reality," he writes. But consider that his essay served as an introduction to an excerpt from a book about the Bush administration.

"To judge from 'War of Necessity, War of Choice,' Richard N. Haass's new book on presidential decision-making with regard to Iraq, George W. Bush lived in a bubble, partly of his own making, that walled off creative dissent or even, in some cases, common sense," Thomas writes.

In the Newsweek excerpt, Haass writes about his July 2002 visit with then-national security adviser Condoleezza Rice, when he was the State Department's director of policy planning: "For several weeks, those on my staff who dealt with Iraq and other Middle East issues had been reporting back that they sensed a shift in tone within the government. Their counterparts working at the Pentagon, the National Security Council (NSC) and the vice president's office who favored going to war with Iraq were sending signals that things were going their way. I did not share this enthusiasm for going to war, believing that we had other viable options and fearing that any conflict would be much tougher than the advocates predicted. I was also concerned that an invasion would take an enormous toll on the rest of American foreign policy at the precise moment in history that the United States enjoyed a rare opportunity to exert extraordinary influence....

"Condi cut me off. 'You can save your breath, Richard. The president has already made up his mind on Iraq.' The way she said it made clear he had decided to go to war."

And that was that. Haass decided to concern himself with other things. And the rest, as they say, is history.

Cartoon Watch

By Dan Froomkin
9:35 AM ET, 05/ 4/2009

Tony Auth, John Cole, Steve Sack and Eric Allie on Biden's panic, David Horsey on Obama's torture torture, Nate Beeler on Super Obama and Michael Ramirez on Obama's press conference.

© 2009 The Washington Post Company