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Tilting at Windmills

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April 21, 2009

OBAMA KEEPS PROSECUTIONS ON THE TABLE.... During a press availability Jordan's King Abdullah, President Obama fielded a couple of questions about possible sanctions against Bush administration officials who wrote torture memos. The president went a little further than Rahm Emanuel and Robert Gibbs were prepared to go.

President Obama suggested today that it remained a possibility that the Justice Department might bring charges against officials of the Bush administration who devised harsh interrogation policies that some see as torture.

He also suggested that if there is any sort of investigation into these past policies and practices, he would be more inclined to support an independent commission outside the typical congressional hearing process. [...]

Calling the Bush-era memos providing legal justifications for enhanced interrogation methods "reflected us losing our moral bearings," the president said that he did not think it was "appropriate" to prosecute those CIA officers who "carried out some of these operations within the four corners of the legal opinions or guidance that had been provided by the White House."

But in clear change from language he and members of his administration have used in the past, the president said that "with respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws and I don't want to prejudge that."

Obama added that he believes it would be "more sensible" if there were some kind of independent commission on this, "outside of the typical hearing" process.

The president reiterated his sense that "we should be looking forward and not backwards," but given that this was the first time Obama publicly expressed at least tacit support for a probe into the activities of high-ranking Bush administration officials, this can be seen as a step in the right direction.

Think Progress, which has video of the president's remarks this morning, added that Obama's comments seem to effectively put "the ball in Holder's court." And if the A.G. follows the vision he outlined during his confirmation hearings, Holder may conclude he has no choice but to pursue this matter.

Update: Here's a transcript of Obama's comments this morning.

Steve Benen 1:55 PM Permalink | Trackbacks | Comments (39)

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Comments

'..."outside of the typical hearing" process.'

Because you just know that the Republican members of any Congressional committee will decline to attend. And that would make it "partisan."

Posted by: Zandru on April 21, 2009 at 2:04 PM | PERMALINK

Welllll, if Dick Cheney believes that the Bush/Cheney administration did nothing wrong, and the elected members of the party don't disagree with the current spokesperson for the Republican party, investigations should proceed. If they block or boycott the investigations, they will have indicated their either their belief that the previous administration was engaged in illegal activity or a rejection of Dick Cheney.

Posted by: Gerry on April 21, 2009 at 2:10 PM | PERMALINK

As I understand it, a Truth and Reconciliation process Like South Africa's) would make the offer of tell us everything you know and if it's true and thorough, then you get amnesty. Lie to us, or hold back info, and all bets are off.

What would happen? Theoretically, the lower down actors would grab the opportunity and fess up, and if lawbreaking was done (as it clearly was) they would implicate the higher ups to save their own bacon. As the process climbs the ladder of power, it will eventually reach near or at the top. (ie OLC lawyers up to the Presnit and vice presnit.

These people will then have a choice. Confess truthfully what happened, or face possible prosecution. I suspect some of the near the toppers will take the deal and further incriminate the top dudes) and some loyalists won't. And those whose legacies are valued unto themselves Cheney Bush and maybe some others) will certainly not, and will hide behind article 1 of the constitution and argue what they always have, that article 2 trumps article 1 in times of war. Not being a lawyer, I could be completely wrong about the sequence, but seems to me the Supreme's will enter the picture at some point, and who knows what will happen then.

And through all of this, Obama could step aside and begin mostly unfettered, his 2012 campaign, in a couple of years.

Posted by: Mr. Stuck on April 21, 2009 at 2:15 PM | PERMALINK

Sorry, I switched around articles 1 and 2. They would hide behind article 2/ it should be.

Posted by: Mr. Stuck on April 21, 2009 at 2:17 PM | PERMALINK

"with respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws and I don't want to prejudge that." - Obama

Yes, he has no issue with letting the people who actually performed the torture, off. This BS of CIA agents so dumb that they didn't realize what they were doing because a memo said it was OK, has got to stop. If I am not mistaken, didn't they 'not' torture several men to death. They knew damn well what they were doing and for Obama to presume he can actually decided who get investigated and who doesn't is too Bush-esque for me.

At the very minimum we should be going after those clowns for the ninety some tapes they destroyed of their 'non' torture.

Posted by: ScottW on April 21, 2009 at 2:22 PM | PERMALINK

Think Progress, which has video of the president's remarks this morning, added that Obama's comments seem to effectively put "the ball in Holder's court." -- Steve Benen

Haven't been to TP yet today, so don't know what-- if anything -- they have set up but I have got petitions both from MoveOn and from Firedoglake to sign, to put pressure on Holder to do the right thing. Haven't visited either petition site as yet, so don't know whether they might be one and the same (in which case I'll sign only one) but I'd encourage everyone to sign, somewhere. The ball may already be in Holder's court but, giving it a wee nudge to keep it rolling can't hurt.

Posted by: exlibra on April 21, 2009 at 2:24 PM | PERMALINK

Finally, a glimmer of hope that Obama has not renounced his oath of office to uphold the Constitution and our laws!

Posted by: SadOldVet on April 21, 2009 at 2:27 PM | PERMALINK

When I wrote recently in my blog that I hoped President Obama would push to prosecute Bush et al for war crimes, a good friend of mine piped up in the comments,

"If new administration puts the old one on trial for war crimes it would set a horrible precedent - in a country run by lawyers who love precedent. Future incoming administrations would be more focused on revenge than moving the country forward.

Not to say that the Bush admin doesn't deserve to be held accountable - its' just that we can't do it.

What we can do is have Obama sign the US onto the International Criminal Court (which Bush refused to do). This would subject the US to their jurisdiction - opening the door for the ICC to put Bush and his cronies on trial for war crimes. (In which case, if some black documents happened to be leaked...whoops. what can you do?).

Now Bush would likely not show up for a trial, so he and his buddies would be convicted in absentia. They would effectively be isolated, never allowed to travel to Europe (or other ICC countries) again. At a minimum, it would make Bush a criminal in the eyes of the world, show the world that the US isn't afraid to let others hold us accountable, and make Bush spend the rest of his days looking over his shoulder, hoping the Nazi bounty hunters haven't run out of work and come calling."

This is an argument against prosecution I hadn't heard yet. I'd like to hear other opinions about this, as it appears to tie the Obama administration's hands and leave no other recourse but the ICC -- which the US is not a member of, right now.

Any thoughts? And thanks.

Posted by: Wren on April 21, 2009 at 2:36 PM | PERMALINK

So, have the ding-bat-o-blogs gone nuclear yet? Special prosecutor works for me. And what ScottW said.

Posted by: Chopin on April 21, 2009 at 2:37 PM | PERMALINK

Call Fitzgerald on this one. Unleash the hounds and get to the truth.

Posted by: jhill123 on April 21, 2009 at 2:39 PM | PERMALINK

Could this whole scenario been yet another clever ploy by our Commander in Chief? If he'd come out and said "Yes, let the investigations begin" right off the top, the howls from the right would have been deafening and the whole thing would probably have been derailed from the start.

But by letting a groundswell of outrage build from his initial signals where the public demanded investigations in the name of all that's decent and holy, he can just shrug his shoulders at the wingnuts and say, "Well, I tried but they're forcing my hand. Nothing I can do."

Whether this was an actual strategy or not, isn't it nice to have someone in charge who actually knows what it means to be subtle in his public policy?

Posted by: Curmudgeon on April 21, 2009 at 2:39 PM | PERMALINK

I think it was last night, Monday evening, when Rachel Maddow interviewed Michael Isikoff, a Newsweek reporter, who wrote an article about this. He was saying that the White House actually doesn't have the authority to dictate to the DoJ on matters like this. Bush got away with it because the various AGs were all his cronies, but it looks like Holder and the other new-comers don't have quite the same kind of personal loyalty to Obama as Bush's three AGs had to him.

It is a great interview, and definitely worth a watch.

http://videocafe.crooksandliars.com/heather/eric-holder-seriously-considering-appointing

Posted by: Shade Tail on April 21, 2009 at 2:39 PM | PERMALINK

Reading the full transcript was like music to my ears. He hit every point I wanted to hear. If only he'd said that when he released the memos.

Posted by: nicole on April 21, 2009 at 2:47 PM | PERMALINK

If new administration puts the old one on trial for war crimes it would set a horrible precedent - via Wren (2:36)

Letting the Bush administration get away with using the OLC to create legal immunity is another horrible precedent. I would agree that this kind of prosecution should be rare and only done in extreme situations, but this seems to be one of those. Sharing his OLC memos with Congress is one way Obama is avoiding a repeat. But I also think Obama's strategy is to force Congress and the courts to create statutory and case law in such a way that it is not merely optional for a President to act according to political whim. That would explain, for example, easing FOIA procedures, and then releasing the Bybee/Bradbury memos only after a court "forced" him to.

Posted by: Danp on April 21, 2009 at 2:54 PM | PERMALINK

You know, in my last post where I linked to the Rachel Maddow interview, I forgot to get to the main point. There's a story in Newsweek, it got enough attention that Maddow interviewed the author, and now all of a sudden Obama is suggesting that he may have to defer to his AG.

I'm getting the feeling that Obama may have recently received some internal push-back. Holder may have rather pointedly reminded him of the relationship between the White House and the DoJ, including who precisely had authority over what. So now Obama might be lightly walking back some of his apparent "no prosecutions" talk because he was over-reaching.

Just a hypothesis at this point. But if it is true, it would be a great relief to have a White House administration that actually functions the way it is supposed to, instead of the royal court Bush set up.

Posted by: Shade Tail on April 21, 2009 at 2:58 PM | PERMALINK

Based on things that I heard Scarborough, Beck and Limbaugh say today the right-wing spin on the "torture memos" is this:

Obama has made us less safe, now the CIA cannot protect us, because torture works. Therefore ANY act of terrorism on American soil is OBAMA's FAULT. Each said so in no uncertain terms- it will be Obama's fault.

They're hedging their bets that *something* will happen in the next 4-8 years so that they can blame Obama W00 percent.

And they have the nerve to say "country first" and call dems "blame America first." They're blaming Obama for things that haven't happened because they are hoping that those things do happen. Sickos.

Posted by: zoe kentucky from pittsburgh on April 21, 2009 at 3:07 PM | PERMALINK

Nicole

Reading the full transcript was like music to my ears. He hit every point I wanted to hear. If only he'd said that when he released the memos.

It's called smart politics. Don't lead with the chin and keep bouncin' off those ropes until you get the best punch for your effort. He's done this time and again throughout the campaign till the present. Sometimes, I suspect by design, and sometimes play it as it goes. You could call it Rope a dope or, Maybe Roller Coaster Politics. Dread followed be thrill. Kinda like getting a tooth pulled.

Posted by: Mr. Stuck on April 21, 2009 at 3:09 PM | PERMALINK

I'm getting the feeling that Obama may have recently received some internal push-back. Holder may have rather pointedly reminded him of the relationship between the White House and the DoJ, including who precisely had authority over what.

Maybe. It could also be external pushback having some effect. Presumably Obama and Holder had conferred at length before Obama made his original statements.

Posted by: shortstop on April 21, 2009 at 3:11 PM | PERMALINK

Thanks, Danp. I've been thinking along those lines myself -- and this IS an extraordinary situation. I hope you're right about Obama's "strategy."

Posted by: Wren on April 21, 2009 at 3:19 PM | PERMALINK

Holder is as political as every other AG in the history of the Republic (with the possible exception of Levi, who was uniquely non-political). His past (pardon approvals under Clinton, ignoring OLC advice on politically sensitive bill to give DC a vote in Congress) strongly suggests he will do here whatever he thinks (after consulting with Rahm Emmanuel) is in the best interests of President Obama. And there's nothing wrong with that. Holder is the President's agent, not some independent actor accountable to no one. He should exercise his discretion whether to prosecute or not in the same manner he would in any case, weighing, among other things, the strength of any potential case, the likehood of a jury convicting, the use of limited resources, and the political impact on the president and his agenda.

The only thing that Holder could do that would be flat out unethtical and maybe even illegal would be to avoid responsibility by appointing a "special prosecutor." There is no conflict of interest here that justifies the appointment of a special prosector.

Posted by: DBL on April 21, 2009 at 3:24 PM | PERMALINK

DBL - why would a special prosecutor be unethical or illegal? The conflict of interest would be that the DOJ would be investigating the DOJ, and while the political appointees change, there are likely plenty of career lawyers there who have both a stake in the future and the past.

Posted by: Danp on April 21, 2009 at 3:46 PM | PERMALINK

And there's nothing wrong with that. Holder is the President's agent, not some independent actor accountable to no one.

The conflict of interest here, imho, is the fact that one parties administration would be accusing the other parties administration of High Crimes against humanity, if you will.

Everyone in Washington fears the power that a special prosecutor wields, which is why it is unlikely one would be appointed to this task, as a SP is beholden to no one.

I don't think Obama or Holder would do this, dems in congress for fear they would lose all control and lose focus on just the torture issue. There are so many other areas where the Bushies were lawless, a PA could fill up a prison with former Bush officials, if they followed every crime.

In my fantasies, I would like to see this happen, but on a reality level, it would be a neverending legal and political nightmare that could tear the country in two.

Posted by: Mr. Stuck on April 21, 2009 at 3:52 PM | PERMALINK
What we can do is have Obama sign the US onto the International Criminal Court (which Bush refused to do). This would subject the US to their jurisdiction - opening the door for the ICC to put Bush and his cronies on trial for war crimes.

No, it wouldn't, since ICC jurisdiction does not extend backward in time from the point of ratification. (See Rome Statute, Art. 11, ¶ 2)

Now, the US could make a specific declaration (with or without ratifying the Rome Statute generally) accepting jurisdiction of the ICC with regard to particular crimes (Art. 12, ¶ 3). Alternatively, since many of the instances of torture in question were committed outside of the territory of the US, any State on whose territory they occurred could do the same, with or without the consent of the US (Art. 12, ¶ 2(b).)

Posted by: cmdicely on April 21, 2009 at 4:11 PM | PERMALINK

This entire episode involving the release of the "torture" memos has been an enlightening view into the liberal mindset. Only liberals could delude themselves into believing that the One will bring criminal charges against anyone, let alone the "higher ups" in the Bush Administration. Or that he would let his AG do so without his approval.

Open your eyes people. Obambi will not prosecute anyone for anything. If you believe otherwise, then you haven't learned anything from the "Fritzmas" indictment of Karl Rove. Or from John Connor's "impeachment" hearings in the basement of the House. Or from the "inherent authority" of Congress to jail Rove and Meyers for blowing off their subpeonas. Or from the host of other legal issues that your side has lost trying to get to the "truth" about the Bush Administration.

If you truly believe that Bush et al has committed crimes, war or otherwise, then you better prepare yourself for calling for the One's impeachment for failing to prosecute them because he won't. You're just being played for the chumps that you are.

Hope and change suckers!!

Posted by: Chicounsel on April 21, 2009 at 4:15 PM | PERMALINK
The only thing that Holder could do that would be flat out unethtical and maybe even illegal would be to avoid responsibility by appointing a "special prosecutor." There is no conflict of interest here that justifies the appointment of a special prosector.

Since the case at its core involves limits on the power of the executive, there is a fundamental conflict of interest in any administration in prosecuting it, since it is inherently in the interest of the the administration not to fully prosecute the crime in order to protect its own power (this is very similar to the type of conflict of interest that arises in an administration prosecuting its own members.) Whether this is a signficant enough conflict of interest to warrant a special prosecutor is somewhat subjective, but its certainly the general kind of conflict for which the entire idea of special prosecutors exists. There would obviously be nothing unethical about appointing such a prosecutor, and its hard to see any basis for the suggestion that it might be illegal.

Posted by: cmdicely on April 21, 2009 at 4:16 PM | PERMALINK

"Appointing a special prosecutor would be unethical and possibly illegal" is just DBL-speak for "Please, God, not a special prosecutor! Noooooooooooooo, not that!"

Posted by: shortstop on April 21, 2009 at 4:29 PM | PERMALINK

Hope and change suckers!!

That be MAJORITY suckers to you, wingnut!

Posted by: Mr. Stuck on April 21, 2009 at 4:33 PM | PERMALINK

"If new administration puts the old one on trial for war crimes it would set a horrible precedent - in a country run by lawyers who love precedent. Future incoming administrations would be more focused on revenge than moving the country forward."

OK, so it's all fine and well to set precedents of official law breaking and committing war crimes, but 'verboten' to hold anybody accountable who does. The sheer idiocy of this argument should be self apparent, no?

Just in case it still isn't: What kind of legal and political system will you get with this approach. Actually, this is beyond idiotic.

Posted by: SRW1 on April 21, 2009 at 4:51 PM | PERMALINK

Shouldn't the headline be 'Prosecutions Tabled'?

Posted by: Michael7843853 on April 21, 2009 at 5:22 PM | PERMALINK

Fuck, sorry for my sniveling drivel .. I do this because I am in fact nothing more that an excessively used BUTT PLUG FOR ALL THE REPIGLICAN ASSHOLES that need a good fuck. Yep, that's me there: the used, filthy, BUTT PLUG that is reduced to spluttering stupidity .........

Posted by: Chicounsel on April 21, 2009 at 5:24 PM | PERMALINK

I am in fact nothing more that an excessively used BUTT PLUG FOR ALL THE REPIGLICAN ASSHOLES that need a good fuck

You need to watch Oprah, lots of Oprah. And if that doesn't work there's always Jerry Springer reruns.

Posted by: Mr. Stuck on April 21, 2009 at 5:31 PM | PERMALINK

I find the real Chicounsel odious and generally foolish and his post from 4:15PM was no exception.

However, whoever borrowed his posting name at 5:24PM was beyond the pale and I hope the post will be deleted and the poster counseled.

Posted by: tanstaafl on April 21, 2009 at 5:33 PM | PERMALINK

"I'd like to hear other opinions about [Bush being tried by the ICC]" - Wren

Personally, I'd rather that the office of the POTUS not be sullied by some outsiders. We can take care of business. Obama is going down exactly the right path.

Posted by: Markozilla on April 21, 2009 at 5:40 PM | PERMALINK

Ha, I knew it! I always suspected that Obama intended to go after the Bush administration officials who authorized torture, but that he wanted to prepare the ground very carefully rather than just charging right ahead with indictments.

Remember how Pat Buchanan used to brag that if elected President, he would turn to Clinton on the inaugural platform and say, "As the President, it is my duty to enforce the law. Therefore, I must advise you that you have the right to remain silent . . . " Great applause line if you're preaching to the converted, but you may also notice that Buchanan never got anywhere near the Presidency.

Obama knows that he has to make public noises about reconciliation, bipartisanship, moving on, etc. But he's also shrewd enough to realize that after he's released enough incriminating information on what the Bush crowd did, then public outcry will support prosecutions.

Posted by: T-Rex on April 21, 2009 at 5:45 PM | PERMALINK

Obviously, not everybody wants to see action taken against American use of torture, most of which was farmed out to other countries such as Syria and Saudi Arabia.

What there is a consensus on is that piracy should be dealt with harshly. So why not hang a few of the Reagan Administration pirates?
- the definition of piracy includes sabotage. Deliberately laying mines in a shipping lane is piracy of the high seas.
- the Reagan White House ran a terrorist campaign, overseen by Vice-President GHW Bush, against Nicaragua's Sandinistas. Part of the effort included laying mines that damaged a couple of Soviet ships bound for Nicaragua. A lot of those Contra enablers were also part of GW Bush's "War on Terrorism". Hang them, Hang them all.

Posted by: J from Wpg on April 21, 2009 at 5:53 PM | PERMALINK

Isn't this reminiscient of Roosevelt having a discussion with some folks saying he wanted to support them, now they had to make him.

(My bad for not knowing the details)

Posted by: jhill123 on April 21, 2009 at 7:15 PM | PERMALINK

WTF?

Obama:

He also suggested that if there is any sort of investigation into these past policies and practices, he would be more inclined to support an independent commission outside the typical congressional hearing process. [...]

Since f-ing WHEN do criminal prosecutions go through CONGRESS?

They go through the U.S. Attorney's office, then to a Federal Grand Jury. The Congress is the ONE branch of the government that hasn't a damned thing to do with it, unless it is for impeachment purposes.

I repeat: WTF is Obama talking about? Spinning the wheels of government for months and months, when Congress has no place in the process?

Am I missing something here, folks?

If you or I tortured the shit out of somebody, Congress wouldn't be involved, I'll tell you that. We'd be arrested on suspicion, then charges brought up to a grand jury, and then we'd be putting up bail money and looking at a court date.

Posted by: SteveGinIL on April 21, 2009 at 10:05 PM | PERMALINK
Am I missing something here, folks?

Congress can investigate anything it wants, and specializes in oversight of the other two branches of government. They have all the tools necessary and don't have to worry about access to classified info since they all have top secret clearance. A civilian court would be a nightmare of discovery for classified info, with lengthy delays of motions out the yazoo.

The same would be true of a congressional outside independent commission whose members would be given clearances. And when it's been completed they can wrap up the evidence and submit it all to the DOJ with a recommendation to prosecute. The DOJ would then have to make the final decision. It happens all the time, in all sorts of congressional inquiries inside and outside of government.

Posted by: Mr. Stuck on April 21, 2009 at 10:53 PM | PERMALINK
Congress can investigate anything it wants, and specializes in oversight of the other two branches of government.

And specializes, most especially, in preventing criminal investigations and successful prosecutions even when it reveals clear crimes. The only reason to prefer a congressional or "independent commission" investigation is to prevent criminal accountability.

Posted by: cmdicely on April 22, 2009 at 12:02 PM | PERMALINK




 

 

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