Accountability for Torture Comment

[Neil D]

By John Nichols

This article appeared in the May 11, 2009 edition of The Nation.

April 22, 2009

The release of memorandums prepared by Bush administration lawyers on how--not if, but how--to torture prisoners confronts Congress with the sort of constitutional challenge its risk-averse members have a penchant for ducking. Over the past thirty-five years, the branch of government best positioned to curb abuses of executive power has repeatedly skipped opportunities to check and balance an increasingly imperial presidency. Just one month after Richard Nixon resigned in disgrace, when President Gerald Ford pardoned his predecessor, Senate majority leader Mike Mansfield and several members of the House Judiciary Committee suggested that the impeachment process could be reopened. But House Democratic leaders, fearing that the move would harm the party's 1974 electoral prospects, stymied the initiative. California Congressman John Moss, a champion of open government, later complained, "The House should have completed its impeachment action. We were less than we should have been."

On the matter of presidential accountability, the House has been less than it should be ever since. The chamber that refused to hold Ronald Reagan, George H.W. Bush and their henchmen to account for Iran/Contra abuses--and that took impeachment "off the table" even after revelations that George W. Bush and Dick Cheney had committed acts that former White House legal counsel John Dean identified as "worse than Watergate"--has remained a bystander as successive presidents have engaged in ever more sinister abuses of authority.

Wisconsin Senator Russ Feingold, chair of the Senate Judiciary Committee's Constitution subcommittee, who has long urged Congress to get more serious about checking and balancing executive excess, is now rightly arguing that evidence of the Bush administration's complicity in torture must be addressed. "Horrible abuses were committed in the name of the American people, and we cannot look the other way or just 'move on,'" he says. But Congress must also confront its own complicity: members must recognize that their repeated refusals to address abuses by sitting and former presidents have facilitated a breakdown in the constitutional order.

This recognition must be joined with Congressional action to remove those who sanctioned and promoted torture from positions of public trust and, if inquiries so conclude, to hold Bush, Cheney and their top aides to account. Going after Jay Bybee, the former assistant attorney general who wrote the most noxious memo--outlining schemes for waterboarding, sleep deprivation, slamming prisoners against walls and putting them in "confinement boxes" with insects--would be a swift and aggressive opening gambit. Bybee is now a judge in the Court of Appeals for the Ninth Circuit; he should be impeached by the House and removed from office by the Senate.

There are other routes to accountability. New York's Jerrold Nadler, who chairs the House subcommittee on the Constitution, proposes appointing a special counsel. As Center for Constitutional Rights president Michael Ratner explains, "Some claim that to prosecute those who approved torture techniques would criminalize a policy difference. But torture is against the law." He goes on to say, "The claim that the administration officials who promoted the use of waterboarding...were acting in the national interest does not absolve them; if it did, all torturers the world over would use the same justifications." And President Obama, who erred on the side of the transparency demanded by the American Civil Liberties Union in its long campaign to obtain the memos, gets points for ordering an end to the use of the torture techniques they outlined and for expressing at least a measure of openness to a "further accounting" and perhaps prosecution of wrongdoers. But Obama's fretting about inquiries "getting so politicized" and suggesting a preference for shifting responsibility to a bipartisan independent commission are unsettling.

As a former constitutional law lecturer, Obama should have a firmer grasp of the point of executive accountability. It is not merely to "lay blame," as he suggests; it is to set boundaries on presidential behavior and to clarify where wrongdoing will be challenged. Presidents, even those who profess honorable intentions, do not get to write their own rules. Congress must set and enforce those boundaries. When Obama suggested that CIA personnel who acted on the legal advice of the Bush administration would not face "retribution," Illinois's Jan Schakowsky, chair of the House Permanent Select Committee on Intelligence's subcommittee on oversight and investigations, offered the only appropriate response. "I don't want to compare this to Nazi Germany, but we've come to almost ridicule the notion that when horrific acts have been committed that people can use the excuse that, Well, I was just following orders," explained Schakowsky, who has instructed aides to prepare for a torture inquiry. "There should be an open mind of what to do with information that we get from thorough investigations," she added.

There must also be a proper framework for investigations. Gathering information for the purpose of creating a permanent record is only slightly superior to Obama's banalities about wanting to "move forward." Truth commissions that grant immunity to wrongdoers and bipartisan commissions that negotiate their way to redacted reports do not check and balance the executive branch any more than "warnings" punish speeding motorists.

Impeaching Bybee, as recommended by Nadler and Common Cause, would send the right signal. But it cannot be the only one. The House Judiciary Committee should examine all available avenues for achieving accountability--including the prospect of formal action against former officeholders, up to and including the sort of impeachments imagined by Mansfield and his compatriots in 1974. And Nadler and Feingold should use their subcommittees to begin outlining statutory constraints on the executive branch. The point, again, is not merely to address Bush/Cheney-era crimes but also to dial down the imperial presidency that has evolved under the unwatchful eye of successive Congresses.

"Congress...must be vigilant to the perils of the subversive notion that any public official, the president or a policeman, possesses a kind of inherent power to set the Constitution aside whenever he thinks the public interest or 'national security' warrants it. That notion is the essential postulate of tyranny," California Congressman Don Edwards warned thirty-five years ago, when too many of his colleagues thought Nixon's resignation had caged the beast of executive aggrandizement. That vigilance, too long delayed, is the essential duty of every member of Congress who swears an oath to support and defend the Constitution.

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[Joe_in_RP]

I don't think anyone will be prosecuted. They're sending a message to the American people and to the world that they are in charge now.

[Dr. Shane]

No one will be prosecuted because that would just set the wheels in motion for pay-back. Someday the Republicans will win the White House and Congress again and do the same thing. The Bush White House told Congress what they were doing. There were checks and balances. What we have now is a bunch of Bush-haters. It wasn't enough for them to win the election, now they want revenge. It tells us more about them than about those the seek to get revenge upon.

[carolaa]

I don't believe that for a minute. Sure, there are some Bush haters. But the majority of people just want to make sure this kind of thing doesn't happen again. What we need is not a bi-partisan investigation but a NON-partisan investigation that will go after those responsible, even if it includes Nancy Pelosi or other Democrats.

[bonnie]

No one will be prosecuted because that would just set the wheels in motion for pay-back. Someday the Republicans will win the White House and Congress again and do the same thing. The Bush White House told Congress what they were doing. There were checks and balances. What we have now is a bunch of Bush-haters. It wasn't enough for them to win the election, now they want revenge. It tells us more about them than about those the seek to get revenge upon.

The extent of this so called torture doesn't reach the level of college hazing.

Our operatives have gone thru the same procedures in training that were used on those wishing to kill more americans.

I wish they would show the pictures of our people having their heads cut off. Show again the bodies of our men being dragged thru the streets.

The contrast between the ones they have promised to share and those might make people understand that it is not a matter of saying "Please,please,Pretty Please. No problem if you don't but we would really like to know"

Once they have done this and try to find someone to prosecute it is going to be a danger and obstacles to our men and women

At the time we are sending 80,000 of our own to Afghanistan

let's really build the anger and thirst for revenge.

[Neil D]

No one will be prosecuted because that would just set the wheels in motion for pay-back. Someday the Republicans will win the White House and Congress again and do the same thing. The Bush White House told Congress what they were doing. There were checks and balances. What we have now is a bunch of Bush-haters. It wasn't enough for them to win the election, now they want revenge. It tells us more about them than about those the seek to get revenge upon.

there are cooler heads prevailing here....The more we probe, the more we find that the Bush Administration set forth poor arguements for the legalizing illegal acctivities in the name of the American people. It is the leaders of these poor contrivances of legalitys that need to be made an example of....And you hear them every day now, trying to justify thier past actions....

[carolaa]

I don't see how an investigation would put our military in more danger. I suspect it will only confirm what is already known around the globe.

[bonnie]

I don't see how an investigation would put our military in more danger. I suspect it will only confirm what is already known around the globe.

Many that know far more than you and I do believe it will hurt our military.

Leon Panatta is one. Democrat has publically said that this should not be done. "Don't do this"

Aside from the fact of spelling out how far our operatives can go, knowledge gives the enemy the knowledge that there is not true danger to life. It is more mental. Our enemies will know that all our operatives can now fear being prosecuted . Not much more but Please tell us your name and what you know" is about all that can be done.

Now selected photos will be released. Selected to show torture. Of course the before and after putting the photos in the proper context. Not only that but our men/women are still in harms way.

Would you want your husband to be the captive of those seeing them?

Would you want him to be in a position to find information that would protect 3,000 lives and try to with both hands tied behind his back.

If your husband,son,brother was in a position that he would soon have his head cut off would you want our operatives to be

able to use tools to save him.

If that were my sons or husband I would expect and do everything I could to get them to use tools to find them,to prevent them from being blown to bits. My SIL is a flight attendent. If someone has a box cutter held to her neck

I want whatever it takes to save her life instead of having her throat cut from ear to ear.

World wide the hands of our operatives have been tied by Obama's whirlwind apology tour and the threat of being prosecuted. Rather than that they will err on the side of caution,

[bonnie]

I don't see how an investigation would put our military in more danger. I suspect it will only confirm what is already known around the globe.

Can you give specifics as to what is known around the globe or are you simply repeating the talking points of Obama and friends?

[carolaa]

The extent of this so called torture doesn't reach the level of college hazing.

Our operatives have gone thru the same procedures in training that were used on those wishing to kill more americans.

I hope you're not trying to say that hazing is ok. At any rate, I seriously doubt hazing includes being waterboarded 183 times in one month.

The SERE training is designed to help our own soldiers in case they have to be put through mistreatment by the enemy. That tells me that what we have done to our prisoners is mistreatment, at best.

[carolaa]

Originally Posted By: carolaa

I don't see how an investigation would put our military in more danger. I suspect it will only confirm what is already known around the globe.

Can you give specifics as to what iss know around the globe or are you simply repeating the talking points of Obama and friends?

If I had specifics, I wouldn't have said "suspect." That is simply my opinion based on what has come out so far, pretty much stuff that confirmed what we had already been hearing.

[Bravus]

The Abu Ghraib photos are known around the globe.

[bonnie]

Quote:

I hope you're not trying to say that hazing is ok. At any rate, I seriously doubt hazing includes being waterboarded 183 times in one month.

The SERE training is designed to help our own soldiers in case they have to be put through mistreatment by the enemy. That tells me that what we have done to our prisoners is mistreatment, at best.

Probably not,many college kids have died from hazing.

It isn't as "if" our operatives are mistreated it is when.

You still didn't say what you know that everyone around the globe knows. Do you have the list of those that knew and approved? The dems as well as the republicans?

You didn't answer if you would want a family member in the hands of terrorists during the release of all of this? They don't haze or waterboard, they would simply cut of a loved ones head.

If a family member was being held would you be so quick to champion the release of selected documents.

Cheney and others now have asked for all to be released to show the full story. Wonder why the dems aren't jumping up and down in agreement

War is referred to as hell for a reason. Most do recognize that the please and thank you does not work with enemies that are determined to kill our men and women simply because they are americans.

They are pleased I am sure that there are americans that champion their cause. And you do. You care little about the information released and how it impacts our operatives,those that lay their lives on the line to keep america safe.

The lofty spoken ideals and the hatred of so many against Bush and Cheney takes priority.

Would you like to be the parent of the reporter that has been sentenced to eight years in Iran prison?

Put the pictures in front of her jailers and explain to the Iranians that our operatives will be prosecuted for torture.

This was so callus and so politically calculated it is almost beyond belief. No regard for those it will harm.

Time will tell,but I believe we are going to be hit as 9/11

All his groveling overseas will simply tell our enemies the way is clear to do as again

[bonnie]

The Abu Ghraib photos are known around the globe.

Tell me,I may have my facts wrong but that was taken care of legally was it not?

As wrong as that was and how so many want that to be shown publically over and over,why not show beheadings at the same time. Show the bodies blown to beats in 9/11

War is not your nice safe classroom.

[BobRyan]

I don't believe that for a minute. Sure, there are some Bush haters. But the majority of people just want to make sure this kind of thing doesn't happen again. What we need is not a bi-partisan investigation but a NON-partisan investigation that will go after those responsible, even if it includes Nancy Pelosi or other Democrats.

Indeed - the error was a policy error - a policy approved by both parties at the time.

in Christ,

Bob

[carolaa]

Quote:

I hope you're not trying to say that hazing is ok. At any rate, I seriously doubt hazing includes being waterboarded 183 times in one month.

The SERE training is designed to help our own soldiers in case they have to be put through mistreatment by the enemy. That tells me that what we have done to our prisoners is mistreatment, at best.

It isn't as "if" our operatives are mistreated it is when.

Not everyone who takes the SERE training will be mistreated by the enemy.

You didn't answer if you would want a family member in the hands of terrorists during the release of all of this? They don't haze or waterboard, they would simply cut of a loved ones head.

If a family member was being held would you be so quick to champion the release of selected documents.

Kind of a moot point for stuff that's already known around the globe.

Cheney and others now have asked for all to be released to show the full story. Wonder why the dems aren't jumping up and down in agreement

Many Dems are in favor of this. In fact, they want *all* of the info put out, not just the few documents Cheney wants that supposedly support his claims.

[bonnie]

Quote:

I hope you're not trying to say that hazing is ok. At any rate, I seriously doubt hazing includes being waterboarded 183 times in one month.

The SERE training is designed to help our own soldiers in case they have to be put through mistreatment by the enemy. That tells me that what we have done to our prisoners is mistreatment, at best.

If it has a chance to prevent or give information on impending harm to americans and prevent the type of mistreatment that our civilian citizens were subject to on 9/11 go for it.

For those that think this is torture and uncalled for make nice with thse people and see where it gets you

Not everyone who takes the SERE training will be mistreated by the enemy.

It isn't as "if" our operatives are mistreated it is when.

The enemies we face today will mistreat any of our operatives

that are captured.

Kind of a moot point for stuff that's already known around the globe.

No it's not. It is a direct point. Abu Ghraib was investigated and taken care of legally.It is now being revived.

You still have failed to answer.

If a family member was in captivity at this time and you knew they were watching carefully the actions of our president how would you feel.

If one of Obamas daughters were in harms way I wonder what his actions would be thru this. Knowing that the captors would willingly cut the head of a captive at any provocation.

Nor did you answer as to how you might feel if your daughter were in an Iranian prison for eight years and a political party were to do this?

Many Dems are in favor of this. In fact, they want *all* of the info put out, not just the few documents Cheney wants that supposedly support his claims.

[Neil D]

Originally Posted By: Bravus

The Abu Ghraib photos are known around the globe.

Tell me,I may have my facts wrong but that was taken care of legally was it not?

As wrong as that was and how so many want that to be shown publically over and over,why not show beheadings at the same time. Show the bodies blown to beats in 9/11

War is not your nice safe classroom.

1] We [aka The US and it's allies] have not done any beheadings.

2] The US has signed treats enforcing the "No torture" concept.

3] The US has sucessfully prosecuted people for waterboarding as a war crime.

4] We have done waterboarding and claim that it is not torture....

5] We are a bunch of hyprocrites for waterboarding/torturing it's political prisoners.

[bonnie]

1] We [aka The US and it's allies] have not done any beheadings.

You don't say. The beheadings should be shown in context with waterboarding or sleeping with a caterpiller.

2] The US has signed treats enforcing the "No torture" concept.

Seems the esteemed Nancy Pelosi and others had a different view of that word until she suddenly got religion

3] The US has sucessfully prosecuted people for waterboarding as a war crime.

Not sure of this . Don't recall the incident.

But I assume Nancy pelosi should have known that

4] We have done waterboarding and claim that it is not torture....

Waterboarding that may prevent the torture of cutting off the head of a prisoner. Puts waterboarding in context

5] We are a bunch of hyprocrites for waterboarding/torturing it's political prisoners.

Finally there is room for agreement. Not only hypocrites but the dems are trying to make political hay out of that which they approved. Doesn't get much clearer than that

[carolaa]

If it has a chance to prevent or give information on impending harm to americans and prevent the type of mistreatment that our civilian citizens were subject to on 9/11 go for it.

For those that think this is torture and uncalled for make nice with thse people and see where it gets you

So the end justifies the means. Good to clear that up. Never mind that the means is considered ineffective by professional interrogators.

You still have failed to answer.

If a family member was in captivity at this time and you knew they were watching carefully the actions of our president how would you feel.

If one of Obamas daughters were in harms way I wonder what his actions would be thru this. Knowing that the captors would willingly cut the head of a captive at any provocation.

Nor did you answer as to how you might feel if your daughter were in an Iranian prison for eight years and a political party were to do this?

There is nothing to respond to because the release of documents so far has revealed nothing new, and it's doubtful any new information will be revealed from further releases, so the enemy already knows what we've done. I have to wonder if that isn't another red herring being thrown out in an attempt to protect some behinds.

Regarding the Iranian situation, I would be far more worried about AIPAC than I would be about releasing Iraq-related info.

[Neil D]

1] We [aka The US and it's allies] have not done any beheadings.

You don't say. The beheadings should be shown in context with waterboarding or sleeping with a caterpiller.

[bonnie]

[quote

]There is sooooooo much to say about side tracking the issue here...Thoughts of how these rhetorical questions, straw man arguement from the opposition is less than gracious.....Bonnie, all I got to say about this is this...If this is getting too hot for you, time to get out of the kitchen...

Neil,you really need to get over this inflated idea you have of your tough questions.

Strawman maybe????

If asked most would say,Waterboarding as a routine practise just because we could is wrong,

Most honest people would say if asked......

Should we use it if waterboarding could obtain information that would prevent the beheading of their son/daughter would undoubtedly say YES

Should we use it if we have reason to believe a repeat of 9/11 could be prevented? The answer would be yes from those that are giving a honest answer.

Again, Nancy Pelosi et al do not factor into the current disscussion on accountability of torture from the previous administration. The treaties on "No torture" were established many many years ago...say around 1915 or before...So, why the side issues????

Why the side issue?? Because of her pious outburst NOW of something it is very obvious she knew of and approved.

She is front and center to any current discussion and investigation she wants now.

If she knew and said nothing,if she knew and approved she should be investigated NOW

It is no different than the false pious outrage of the president over AIG.

Is it possible that Bonnie is embarrassed for her previous stupid republican White house administration? I know that I would be embarrassed....As it is, this administration has represented the Americans for the past 8 years and ruined much of our international relationships with our Western Allies...and I am embarrassed about that.....

Not in the least. I am embarrassed about a groveling democrat that embraces thugs,dictators and murderer's.

I am embarrassed about a president that does as this man has done and continues to do.

Eagerly throwing under the bus his opponents to the enemy.

What he has done has come darn close to treason both on his "let me grovel tour and exposing our own men and women in harms way" for his own political capital

Really? Considering that we did that post WWII, you might not have been around remembering that....And reguardless, Nancy might not have remember that either....Side issue that she is....

Didn't expect Nacy pelosi to remember pre-WW11. I do expect her to remember back to 2002.Especially with it as part of a written record. Maybe she needs to step down if she doesn't remember what she approved of in 2002

Oh, that's what you mean...Waterboarding MAY prevent the cutting off the head of a prisoner...Yeah, that's a possibility,,,but that is a totally different situation as to having someone at GTMO and ROUTINELY waterboarded....Totally different....plus the number of people in GTMO were mostly 'vacuumed up' after an operation...

No it isn't. If they were waterboarded for the sheer joy of doing so,they should be held accountable.

Most people understand this is not a boy scout camp. The prisoners are there for a reason.

I am sure there has been some that did not belong there,but that is what happens in war.

Didn't we just release one of these boy scouts that went on to suicide bombing?

I wish it were possible for those that rant and rail about these poor mistreated boy scouts to demand release of them into their neighborhoods.

If it is the beheading of one of my sons I would bring the water. In spite of all the pious rantings I believe most would do same

.Add to the fact that any sort of torture is mostly unreliable information ANYS, especially when it is routinely done....[sigh] some people JUST don't get it....

You have no more idea of what was gained than I do. You will take any and all from someone that opposes Bush and run with it as fact. You are right, some like you don't get it

And those stupid republicans and thier followers who can not get thier minds out of thier behinds in trying to keep/justify the consept of torturing 'during war'...Stupid, absolutely stupid...that is what this situtation is...

I think you should volunteer as legal counsel and expert on these matters.

Stand up and be the beacon of love and kindness with a family members head underneath the machete.

Stand outside the twin towers going down and be loud and clear. "Please be gentle" with those that did this.

Ask them please and if they say No,go on your way.

[Bravus]

One more time - torture (including waterboarding) has been consistently shown *not* to yield reliable or useful information for preventing terror attacks or anything else. The entire argument is founded on a fallacy.

[bonnie]

One more time - torture (including waterboarding) has been consistently shown *not* to yield reliable or useful information for preventing terror attacks or anything else. The entire argument is founded on a fallacy.

Your entire argument is not based on experience anymore than mine or anyone else's.

There are reports that state exactly the opposite.

[Key Guy]

One more time - torture (including waterboarding) has been consistently shown *not* to yield reliable or useful information for preventing terror attacks or anything else. The entire argument is founded on a fallacy.

Shown by who?

You apparently believe the US (and others) waterboard just for fun.

In this day and age, don't you think we have been technologically advanced enough to do a better job at:

1) Developing ways to extract information

2) Do it without killing the bad guy or even causing permanent physical damage

3) Determining if the information extracted is righteous or bogus

Waterboarding is a tool and a pretty good one. There are other tools that are used by interrogators, too. They know how to mix and apply as needed.