ad hoc justice

Free Pictures | acobox.comSo it looks as though Spain is opening formal criminal inquiries into alleged war crimes surrounding the use of torture by the Bush administration.  Judge Baltasar Garzón is involved in the investigation, the same guy who prosecuted Augusto Pinochet, the Chilean dictator propped up for years by the CIA.  So perhaps there’s something “full-circle” about this.  It’s not as though the Bush Administration is alone amongst the past dozen or so Presidents who abused their authority in order to spread American power across the globe.  From Kennedy to Nixon to Bill Clinton these sorts of soft-crimes, coups, and shadowy military support of tyrants and rebels alike has been the modus operandi for the Executive Branch.  George W. Bush just took it one step further, and it’s hard to know how other Presidents would have reacted post-9/11, but there is no question in my mind that few would have taken it so far as Bush did, and the main reason I believe that is because of the insidious influence of Cheney on White House policy over the past eight years.

Speaking of Cheney, according to the New York Times, he’s not on the list of Americans being investigated by the Spanish court.

A high-level Spanish court has taken the first steps toward opening a criminal investigation against six former Bush administration officials, including former Attorney General Alberto R. Gonzales, on whether they violated international law by providing a legalistic framework to justify the use of torture of American prisoners at Guantánamo Bay, Cuba, an official close to the case said.

The complaint under review also names John C. Yoo, the former Justice Department lawyer who wrote secret legal opinions saying the president had the authority to circumvent the Geneva Conventions, and Douglas J. Feith, the former under secretary of defense for policy.

The other Americans named in the complaint were William J. Haynes II, former general counsel for the Department of Defense; Jay S. Bybee, Mr. Yoo’s former boss at the Justice Department’s Office of Legal Counsel; and David S. Addington, who was the chief of staff and legal adviser to Vice President Dick Cheney. Mr. Yoo declined to comment on Saturday, saying that he had not seen or heard of the petition.

Now, it’s good to see these names on the list, but the absence of the former Vice President does raise some questions.  Honestly, all the authorizations, justifications and so forth came down from the Vice President and thus from the President himself.  It’s very unlikely that Bush knew everything that Cheney was doing, but that’s no excuse for allowing what happened to happen.

I suppose I feel sort of torn on this issue.  I try to imagine the Bush years without Dick Cheney and his perfidious influence on everything.  I think we might have actually seen “compassionate conservatism” in action, but I can only guess.  Regardless, Bush was a failure for letting the inhumane policies of his Vice President override all other concerns, including the Constitution and basic human rights.  In the end, these charges should be brought as high as they can be – to Cheney and Bush, who were not just complicit in torture, but who masterminded it, doing lasting and irreversible damage to America’s reputation the world over, and making our soldiers and citizens much less safe.  We have stooped to the level of the worst of our enemies.  This should be seen as a national tragedy.   Simply bringing charges against officials within the administration smacks of ad hoc justice.  Yes, these men were likely responsible for much of what happened in the name of freedom and security, but we risk making them into fall guys for the real war criminals.

Torture doesn’t make us safer or more free, and those who condoned it and made it part of our national security strategy should be brought to justice.  I know this Spanish “inquisition” as it is likely to be called sooner or later is mostly all show.  Yes it can lead to arrest warrants, but the fact is, in practical terms, this is mostly a symbolic gesture.  The question is, at what point do symbolic gestures metamophosize into real action?  At what point does ad hoc justice take shape and become real justice?  When will this gain momentum?  These investigations and proceedings should be happening in the United States.  Maybe someday they will be.

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16 thoughts on “ad hoc justice

  1. These investigations and proceedings should be happening in the United States. Maybe someday they will be.

    I agree that in a perfect world (for instance, the type of world in which torture never happened in the first place) Bush Administration officials would be held accountable for their actions. But I think prosecuting a previous administration is a very, very bad idea. If outgoing administration officials believe they will be prosecuted by political opponents upon leaving office, they are likely to engage in wide-scale document destruction, refuse to assist the incoming administration transition, or, worst case, resist transition. Not to mention the resulting trials would be a political circus which would make the Lewinsky affair look like a period of collegiality.

    We have stooped to the level of the worst of our enemies.

    I think we need to be careful here. It's important to criticize the Bush Administration harshly; we need to make sure this can't happen again. But even waterboarding or the denial of rights to prisoners in Guantanamo Bay, are not quite on the level of the 9/11 attacks, for instance. Torture is a terrible thing; but it's not deliberate murder of innocent civilians who were no where near a combat zone.

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  2. I may have exaggerated, it's true. But I think that when we stoop to that level – if not as low as the 9/11 terrorists – we undermine ourselves so greatly that in the end, the magnitude of our fall from grace puts us almost on an equal standing.

    Max, yes, this does make me nervous on a national sovereignty level which is exactly why I finished by saying that this should be taking place here.

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    • That's a good point. I certainly think waterboarding, Gitmo, and invading Iraq in the first place, undermine U.S. credibility. But there's a difference between international opinion and moral wrongness/rightness. I think the we-are-just-as-bad-as-the-terrorists meme because we're waterboarding terrorists in (admittedly morally problematic) self-defense is unserious. Deliberately trying to kill civilians to scare and intimidate a nation is a worse thing than waterboarding to prevent terrorist attacks. A lot worse. It's like saying the U.S. was just as bad as the Germans in WW II because of Japanese internment. Both are bad; but one is worse than the other; and they are not anywhere near equal in moral (if not international) standing.

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  3. Are these risks greater than those incurred by telling future administrations (and the current one) that their flagrant violations of habeas corpus, the right to privacy, and the laws of war will go unpunished? I understand your concern but it absolutely pales in comparison to the risk we run of unchecked executive power if serious prosecutions are not pursued against the Bush administration.You'll have to do better

    It's basically been the policy of every other Presidential administration in U.S. history, mostly for the reasons I've outlined. And the Obama administration shows no inclination to change that. You can argue for change (I'll venture to guess you voted for it), but I think the initial burden of proof rests on you.

    If you really think that some 'privacy violations', violations of habeaus (Lincoln, you'll remember, suspended it altogether), and the 'rights of war' (what Administration hasn't been guilty of that?) justify a completely unprecedented and inevitably hyper-partisan circus with destabilizing effects, well, I think your (justified) outrage at the Bush Administration is myopic. But, hey, we all want more justice in the world. I don't disagree with your goal, I just think your approach is impractical and, for that reason, unlikely.

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    • So the argument is that, because during an unprecedented period of civil war 150 years ago the president suspended habeas corpus, it is now permissible to secretly suspend it for any given reason? How novel. The race to see who can be more jaded about American history is inevitably a race to the bottom; I have no interest in engaging in it, and it seems to me that anyone who does is not only myopic, but perhaps a bit nihilistic, as well.

      The Obama administration could very easily temper accusations of partisanship by increasing oversight of its own prosecution of the war on terror as it pursued criminal charges against Bush administration officials. That they will not do this is, as you say, all but a given. But that doesn't mean we are required to pat them on the back for not even trying.

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  4. Max,

    A few points:

    1) I never argued it was permissible to secretly suspend habeas for any reason; I expressed concerns about the mechanism for punishing violation of the principle. I think expressing moral outrage is important.

    2) There is nothing 'morally nihilistic' about observing that there is no precedent in the U.S. for the type of prosecutions you support, that they are unlikely to happen, and that this is probably a regrettable necessity if peaceful transitions of power are to be the norm in the United States. It is not possible to prosecute all moral wrongs.

    3) I am curious about why you think the Obama Administration (and every Presidential administration in U.S. history) will not pursue prosecution of the former administration. Are any of these concerns valid, or is it all moral nihilism?

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  5. John says:
    "I agree that in a perfect world (for instance, the type of world in which torture never happened in the first place) Bush Administration officials would be held accountable for their actions. But I think prosecuting a previous administration is a very, very bad idea. If outgoing administration officials believe they will be prosecuted by political opponents upon leaving office, they are likely to engage in wide-scale document destruction, refuse to assist the incoming administration transition, or, worst case, resist transition."

    Are these risks greater than those incurred by telling future administrations (and the current one) that their flagrant violations of habeas corpus, the right to privacy, and the laws of war will go unpunished? I understand your concern but it absolutely pales in comparison to the risk we run of unchecked executive power if serious prosecutions are not pursued against the Bush administration. You'll have to do better.

    John also says:
    "Torture is a terrible thing; but it's not deliberate murder of innocent civilians who were no where near a combat zone. "

    Torture may not be as bad as 9/11, though outside of ED's exaggeration (however great) I don't know why that needs to be or should be our benchmark. But it certainly WAS murder of people who certainly WERE civilians, people who were in a 'combat zone' only insofar as they happened to be somewhere inside Iraq or neighboring countries. (A tough criterion to beat for the vast majority of them.)

    Was that murder deliberate? Depends on your sense of the word. Is it a 'deliberate' murder when a guy gets loaded at a bar, tries to drive home, and plows into another car, killing someone? He never set out to kill anybody — yet he engaged in incredibly dangerous behavior that displayed a willful disregard for the safety of others. Not a simple call.

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  6. I'd like to add my voice here to condemn torture and to express my important righteous wrath/moral outrage.

    I imagine I'll be accused of apologizing for torture and stooping to the level of the Islamist torturers and beheaders, but Superjudge "That dude doesn't mess around" (Sullivan dixit)Garzón is nothing more than a publicity hound and a partisan hack. He has more than enough human rights abuses to investigate right there in Spain, if it weren't for the fact that it's governed by the Socialists. I'd be inclined to change my opinion of him if were wasting his own taxpayers' money by bringing suit against Castro's Cuba and Hamas, for example. Next, he'll be revising the judgment against Jesus Christ and calling down the righteous wrath of people like ED Kain against the Christ-killers.

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    • Roque –

      I agree to some extent with what you're saying which is why I called this a "symbolic gesture" and also said that these proceedings should be happening here in the US. This is not the job of a Spanish judge, and I am sure a lot of it is due to his own quest for celebrity.

      Now how do you suppose the righteous wrath of "people like" me could be used against the Romans? That Empire is long gone and the soldiers who crucified Jesus Christ are all long dead. Sort of hard to be wrathful against them.

      Oh wait – did you mean the Jews? You honestly think I blame the Jews for killing a Jew? That sort of deranged logic has never sat well with me. Not to mention I doubt Jews were using Roman means of execution to kill their own. I'm pretty sure had it been up to them a stoning would have sufficed.

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  7. I was just being sarcastic and trying for a reductio ad absurdum against the Superjudge. I do not impute any opinions on the death of Jesus Christ to you at all. Relax. I doubt that Jesus Christ even existed in the first place, so I don't think he was killed by anyone.

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