Attorney General Eric Holder was already considering appointing a special prosecutor to investigate the details and extent of the torture regime set up by the previous administration. (Or “brutal interrogation practices,” as Newsweek put it… but let’s not mince words; torture is clearly defined in law and precedent, and the mainstream press wouldn’t hesitate to call it what it is were any government but ours involved.)
But even while that story was still developing, before any decision had been made, the news broke about a CIA “program” that had existed since 2001, kept entirely secret from Congress (and even from new agency director Leon Panetta) at the direction of Dick Cheney… and then that this mysterious program apparently involved covert assassination squads.
And the closer you look at the details, the more repulsive and arcanely interconnected it all gets.
First things first: Holder’s investigation. There is absolutely no reason that it should have taken so many months to initiate such a thing, given what was known about the conduct of the prior administration even before it left office. The worry is that, as Newsweek puts it, appointing a special prosecutor
…would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama’s domestic priorities, including health care and energy reform.
The thing is, these considerations ought to be completely irrelevant to the decision-making process. Politicizing the Justice Department is another one of the many abuses on the Bush administration’s long bill of particulars, and when Holder was appointed both he and Obama promised to put an end to it, to re-erect the wall separating the political calculus that legitimately concerns the White House from the legal agenda that drives the DoJ.
Even raising a trial balloon to gauge the response of the public (and more importantly, the Beltway), as the Newsweek story clearly was, is the sort of thing the Attorney General ought not feel a need to do. Of course, Republicans have rushed to argue that even the talk of an investigation is “politicized.” But today’s GOP will bluster and obstruct and try to slap a label of “partisan politics” on absolutely anything that might make them look bad, despite any and all substantive matters of law and policy… it’s all they have left, seemingly all they know how to do. Trying to mollify them won’t get them to back off, it’ll only encourage them. And at the end of the day the public has put them in the minority, and deservedly so, and there’s no reason their fulminations should be allowed to stand in the way of either Obama’s policy agenda or the DoJ’s legal duties.
The simple fact is, torture is illegal, and investigating and prosecuting it isn’t just a good idea, it’s something we are compelled to do under international law by binding treaty obligations, specifically the Convention Against Torture (signed by that known lefty radical Ronald Reagan). A decent independent prosecutor ought to settle any and all concerns about such an investigation being politicized (as, e.g., Patrick Fitzgerald has demonstrated in recent years in multiple investigations touching both sides of the aisle).
Still, at this writing, it’s not clear what sort of investigation (if any) might ensue. Harper‘s Scott Horton blogs that Holder is focusing on the DoJ lawyers like John Yoo who constructed the torture regime, and the White House officials who orchestrated it. On the other hand, establishment outlets like WaPo and the Times report that any investigation would focus only on “rogue” interrogators who exceeded their mandate, not on actual policymakers. Such a course would arguably be worse than no investigation at all, reinforcing the specious “bad apples” meme while allowing the real perpetrators to evade accountability. (Indeed, we know from psychological research that nearly two out of three people will voluntarily torture strangers if ordered to do so by someone in authority.) As John Cole puts it at Balloon Juice,
Handling it like this looks almost exactly the same as asking a mafia prosecutor to focus exclusively on the goons who got a little too enthusiastic when they beat up card players behind on their debts.
Allowing the memos written by Yoo and company to provide “color of law” for blatantly illegal activity would be a travesty. The recently released Inspector General’s report [pdf] on the illegal warrantless wiretapping program conducted by Bush’s NSA underscores the reasons why—establishing beyond any reasonable doubt that Yoo was specifically selected and “read in” to that program because he could be counted on to provide a pretext for whatever his superiors wanted, and that the “legal analysis” he provided was both radically deficient and completely unreviewed by his peers. We also know (since James Comey’s testimony in 2007) that the program went well beyond the aspects the public knows about, including still-undisclosed activities so dire that even loyal Bush officials threatened to resign over them; and from the new report we also learn that any formal objections the DoJ might raise were disregarded anyway, since as then-White House Counsel Alberto Gonzales wrote to Comey,
Your misunderstanding appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities… the President has addressed definitively for the Excutive Branch in the Presidential Authorization the interpretation of the law.
In other words, we’re only interested in the law if you say it agrees with what we’ve already decided.
That’s the state of affairs with regard to domestic surveillance. And this is what we’ve learned from an OIG report that didn’t even have subpoena power to work with, and which therefore couldn’t compel testimony from the key players. Certainly the administration’s approach to legal cover for torture was no more credible. As Digby writes,
If it is the case that the president can designate an Office of Legal Counsel functionary to immunize government officials and employees against criminal behavior, then it is true, to all intents and purposes that “if the president does it it’s not illegal.”There is no political risk in a president breaking the law… all they have to do is get some clerk in the Justice Department to write them a note legalizing it and it’s all good.
Clearly a full-scale criminal investigation is the only way to root out the truth—regardless of the political objections of Rahm Emanuel or David Axelrod.
However… fortuitously and perhaps fortunately… the latest revelations about Cheney’s contempt for Congress and the law may yet push Holder toward initiating a more thorough and wide-ranging investigation.
The CIA death squads Cheney is said to have concealed from Congressional oversight strongly evoke similar death squads that reporter Seymour Hersh wrote about as far back as 2005, and elaborated on in a speech this past winter. As Hersh put it,
U.S. military operatives would be permitted to pose abroad as corrupt foreign businessmen… [joining] up with guerrillas or terrorists. This could potentially involve organizing and carrying out combat operations, or even terrorist activities. … The [American] Ambassador and the [CIA] station chief would not necessarily have a need to know, under the Pentagon’s current interpretation of its reporting requirement.
The new rules will enable the Special Forces community to set up what it calls “action teams” in the target countries overseas which can be used to find and eliminate terrorist organizations. “Do you remember the right-wing execution squads in El Salvador?” the former high-level intelligence official asked me… “The objective now is to recruit locals in any area we want. And we aren’t going to tell Congress about it.” A former military officer, who has knowledge of the Pentagon’s commando capabilities, said, “We’re going to be riding with the bad boys.”
Last March, he added,
Right now, today, there was a story in the New York Times that if you read it carefully mentioned something known as the Joint Special Operations Command—JSOC it’s called. It is a special wing of our special operations community that is set up independently. They do not report to anybody, except in the Bush-Cheney days, they reported directly to the Cheney office. They did not report to the chairman of the joint chiefs of staff or to Mr. [Robert] Gates, the secretary of defense.
Congress has no oversight of it. It’s an executive assassination ring essentially, and it’s been going on and on and on. Just today in the Times there was a story that its leaders, a three star admiral named [William H.] McRaven, ordered a stop to it because there were so many collateral deaths.
The thing is, those were military death squads. They’re clearly not the same as what’s being disclosed now, CIA death squads. This is something new.
Of course, it’s illegal in both cases. If we’re “at war,” as apologists keep insisting, then international law provides clear rules for defining the enemy, the theater of operations, and the battlefield—within those parameters it’s acceptable to kill people, but not outside. If one is honest enough to acknowledge that the “war on terror” is no more a real war than the “war on crime” or “war on drugs,” to understand that you can’t claim special legal powers flowing from an undeclared war against a decentralized organization with no sovereignty and worldwide operations and that what this represents is in fact a criminal problem, then sending covert death squads around the world to kill whom they please obviously violates even more laws.
But the military is, at least, in the business of killing people. To do such things through the CIA is even more egregious: after the Church committee investigation of CIA abuses in the 1970s, Congress explicitly banned CIA assassinations, and imposed an obligation to report CIA activities to Congressional oversight committees.
Dick Cheney (who at the time was White House chief of staff) never liked those assertions of Congressional authority, though, so apparently he felt no need to obey them.
The WSJ report cites anonymous sources to the effect that the program was never “fully operational,” without clarifying what exactly that’s supposed to mean, and apologists have latched onto this to argue that there was no obligation to brief Congress. Even if one accepts the dubious assertion, the argument is obviously specious, disregarding the fact that the law requires disclosure of planned activities, not only those that have been executed, and of course the fact that assassinations would be illegal in the first place.
Lots of unanswered questions remain. Just as it defies logic to believe that the program remained on the books and secret for eight years without being “operational,” the notion that it was intended merely to target Al Qaeda is equally implausible. As strategy, it’s naïve—terrorist organizations don’t rely on figurehead leaders, they operate with a compartmentalized cell structure, as Al Qaeda’s continued perseverance around the world makes evident—so targeted assassinations make little sense. It’s also redundant, merely duplicating what the military was apparently already doing.
Moreover, if it involved no more than going after official enemies the administration had already sworn to kill, keeping it secret (even from Congress!) doesn’t fit the pattern established by the Bush administration, which was desperate to be seen as taking action against “evildoers” and has often bragged openly about even its most legally suspect activities when it could justify them as fighting “terrorism.”
Almost certainly, more was going on here than has yet been revealed. TPM quotes former CIA counterterrorism chief Vince Cannistraro to this effect, on the record, saying that
Since the war on terror began, said Cannistraro, the CIA has routinely conducted operations targeting top Qaeda leaders. “The CIA runs drones and targets al Qaeda safe houses all the time,” said Cannistraro, explaining that there’s no important difference between those kinds of attacks and “assassinations” with a gun or a knife.
Cannistraro said the Defense Department has also conducted such targeted efforts, under an initiative that New Yorker reporter Seymour Hersh has written about. …
But Cannistraro cautioned that that DOD program has nothing to do with the secret, unidentified CIA program which Cheney is said to have hid from Congress, and which CIA director Leon Panetta ended last month.
As for what the program did involve, Cannistraro suggested that it involved Americans as targets, and that it went beyond surveillance, but declined to elaborate.
Let’s think this through. The sad fact is that illegal or not, assassinating terror suspects (just like torturing them) would be popular with a certain segment of the public, and wouldn’t be without its defenders. On today’s Talk of the Nation, one caller said she wasn’t really sure where to “draw the line” on activity like this (apparently not considering that the law already answers that question), while another said the whole idea just seemed “logical and reasonable”… and Rep. Pete Hoekstra actually made the incredible assertion that although he didn’t know all the details of what had been going on, he was skeptical about the need to investigate, since he couldn’t think of any instance in which the Bush administration had been “proven” to have overstepped the law. (And as long as we never investigate, it never will be “proven!” Hey, neat how that works out.)
Given these political realities, does the program as described so far seem like something Leon Panetta would have scrapped as soon as he heard about it? Does it seem like something to which Congressional Dems would have called attention in the first place, as loathe as they’ve been to risk being called “soft on terrorism”?
It doesn’t add up. We know about torture, extraordinary rendition, indefinite detention without trial, warrantless surveillance, and more. Indeed, Cheney has made a point of bragging about these things in public. What, then, is so much worse than even these things that those in power felt compelled to keep it secret? The mind boggles at the possibilities, ranging from false-flag attacks to justify future escalation, to killing or disappearing civilians in the U.S. and allied countries, to extorting or blackmailing political opponents, to even more arcane conspiracies that belong in the pages of suspense novels.
Cheney and his apologists warn that unless the executive branch is allowed to do such things, and do them in secret, our “national security” is at risk.
Personally, I trust the structure of our government, honed by centuries of experience, far more than I trust the individuals who are in charge of it. I would much rather run whatever risk may come from adhering to the law and the Constitution, rather than accept the far more dire risks attendant on covert activities directed by powerful people, guided by nothing but their own withered consciences, with no democratic oversight or political accountability for their actions.
I’m happy to say that Jan Schakowsky, my local representative and chair of the House Intelligence Oversight and Investigations Subcommittee, is speaking out on behalf of a formal Congressional investigation. However, given the political realities constraining Congress, I’m not holding my breath waiting for that to happen.
Eric Holder seems to care what the public thinks about all this. Contact him now and tell him that we need a special prosecutor, immediately… with full authority to pursue the investigation wherever it may lead.Tags: Congress, Constitution, death squads, Dick Cheney, DOJ, Eric Holder, international, John Yoo, torture