EARLY in 2002, Eric Holder, then a former deputy attorney general, said on CNN that the detainees being held at Guantánamo Bay were “not, in fact, people entitled to the protection of the Geneva Convention,” particularly “given the way in which they have conducted themselves.”
Six years later, declaring that “Guantánamo Bay is an international embarrassment,” Mr. Holder said, “I never thought I would see the day when ... the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention.”
So what changed?
Here's something I've wondered about for a long time: do they have special Logic courses at Yale just for future spooks, and future perpetrators of spook lit? Bill FuhBuckley had it in spades, if you'll pardon the expression, and James Jesus! Angleton, well, let's just say Ol' Eli is a major beneficiary of "the principle of estoppel".
Or do they teach the same class to aspiring pitchmen? PHIL 278, The Manufacture of Seeming Near-Contradictions Which Might Work Provided the Target Audience Isn't Paying Attention, for Non-Majors? Look, I can say, to use the first example off the top of my caffein-starved head, "Texas reserves the right to execute people with the functional intelligence of amphibians" and "But I can't believe they do", and squeeze both into the same sentence. Holder's assessment of the legal status of Gitmo detainees may or may not be proper (it's your choice to include "given their conduct" which gave me pause. Was it supposed to "bolster" your "case" for his having flip-flopped? Was it meant--particularly!--to suggest that Holder was referring to the "heinousness of their crimes" rather than their relationship to the Law? We held some people in Gitmo for the crime of being rounded up and shipped to Gitmo, if you'll recall). But I don't recall him, or anyone else, arguing that their status permitted, let alone mandated, torture. Particularly.
And, just for the record, Agent Finder, what would make Holder's comments to CNN, in 2002, binding on his actions as Attorney General? Suppose he'd been explicit. Suppose he'd said, "Wolf, if we subsequently discover that, in accordance with this interpretation of the Geneva Conventions, the Bush administration has engaged in torturing detainees, under cover of rendition to foreign countries in a, well, notable attempt to avoid the discovery of, or repercussions for, acts which they claim are perfectly legal, and if, subsequently, I'm appointed Attorney General by the first US President of African-American descent, and confirmed by the Senate under Article II, Section 2, I promise to abide by the legal opinion offered by the first author of Spy Thrillers who appears in the New York Times Op-Ed pages," what, exactly would you charge him with, now?
So what changed?
A lot of things, of course, but most of all, our national political climate. Reeling from the attacks of Sept. 11, 2001, many on the front lines of the war against terrorism felt a sense of fear and urgency that, years later, it’s hard for some to recall. Now, the attacks receding into the past, a lot of us see things in a different light.
"Your honor, the only reason I beat and robbed all those people was that at the time I really, really felt like I had to have that Lexus".
And, sheesh, "it's hard for some to recall"? If this is the way you guys construct an argument it's no wonder you can't win one without a handy 2x4 and a field telephone attached to the other guy's genitals.
I would suggest to you, sir, that a lot of Americans were sickened and dismayed when the photos of Abu Ghraib first made a successful end-run around the Bush administration and the snuggly-embedded American "journalists" spinning yarns for domestic consumption. I suggest there was plenty of outrage expressed at the time, when memories of The Day That Snuffed Out Irony In Our Time were still fresh, about the reports of "extraordinary rendition" and, later, torture. In fact, sir, let's just ask ourselves who's been intellectually consistent and who Time's Withering Stalk, shall we? If you'd taken a poll on September 10, 2001, how many people who would have said "The US was entirely correct to execute soldiers of the Imperial Japanese Army who waterboarded Allied captives" were saying, four years later, "Waterboarding? Sounds like an afternoon at the beach!"?
And look, let's just cut the bullshit. We knew torture doesn't work. Or, rather, that it may produce reams of intelligence information, of which none can be regarded as remotely reliable. And that's the fucking nature of intelligence gathering in the first place; it always comes back to someone who has to decide if it's reliable. Pretending--now--that we didn't understand that then, or that we did but were acting on behalf of a pants-pissing public--whose increased urine production we were carefully coaxing, but never mind--is just more than a little convenient. How would the public had reacted if facing the truth, instead of a 24 script? Why'd we keep the rest of the Abu Ghraib pics locked up?
Mr. Holder doesn’t seem concerned that each of these cases was exhaustively reviewed, beginning in 2005, by career prosecutors under the supervision of the United States attorney for the Eastern District of Virginia. Those men had access to the complete, unredacted report of the agency’s inspector general, an expurgated version of which was released on Monday. Yet these prosecutors recommended against criminal charges in all but one case.
Wait! The government is behaving differently in an instance where the anticipated eventual public release of evidence might raise questions about its earlier actions? Stop the fuckin' presses, Jack! But only because the Democrats are thinking about investigating Republican misfeasance, so long as nobody notices much.
Three words, Agent Finder: Whitewater Development Corporation. It was the subject of two Resolution Trust Corporation investigations, both of which went beyond absolving the Clintons of wrongdoing to explaining that they had, in fact, been victimized. And that was a mathematical certainty, not a matter of opinion. Didn't stop the Republicans from launching three more investigations. Not that I'm saying two or three or an entire fucking history of wrongs make this right. Just that we might, like they say at the ol' ball yard, act like we've been here before. The Obama administration doesn't want to have to do anything if it can help it. It just wants to be loved. The last time we had an administration that didn't have that as an abiding principle, Samuel F. B. Morse was in ringlets and curls. So it's a fucking Chinese Fire Drill. So what? This your first time? Then it's because the Ivy League Spook With Access To The Times Op-Ed Pages view of the world rarely gets the bend-over treatment. Over this way it's a channel that used to be a canal, as the Late Mister Dury, R.I.P., once put it, and we're grateful if they use a little lube first. Lots of people hate the Bush administration. Lots of 'em think it got away with High Crimes and Misdemeanors, War Crimes, with sending Americans off to die under fabricated circumstances, improperly equipped and too few in number to do the job they were assigned, and that it increased the risk of men and women in the field in a legitimate war to bolster its odds in a PR-manufactured war. And then a lot of people imagine that the United States of America shouldn't be, and has no legitimate reason to be, torturing people around the globe, period, and that it should be prosecuting them for their criminal acts instead of helping them with recruitment. And those people have a voice. You ought be thankful it doesn't get heard expeditiously, when it does get heard at all.
Mr. Holder’s decision, then, implies that justice wasn’t done five years ago probably because high-level officials in the George W. Bush administration put their thumbs on the scale of justice. This seems unlikely. The prosecutors in Virginia were well experienced in dealing with classified intelligence matters, as most of the federal intelligence agencies are in their district. They have a reputation for being hardheaded and unforgiving of C.I.A. transgressions.
And, unique among Bush-era Justice employees, as remarkably immune to pressure from a--particularly!--politically-driven Department?
Lacking reliable witnesses or forensic evidence, they made the only call they could have made: not to prosecute. In our nation of laws, that’s exactly the way you want government prosecutors to behave.
Depending on what you think of the guy in the Dock…
If any new information has come out about these cases, any complaints about undue influence or any new witnesses, Mr. Holder hasn’t mentioned it.
Well, he doesn't need to, seeing as how your suggestion of Double Jeopardy in this case is just a load of feathers on the fluff-dry cycle.
The prosecutors in this case had to abide by the Justice Department’s ruling, in August 2002, that no agency interrogator would face prosecution for exceeding the guidelines as long as he acted in “good faith” and didn’t have “the specific intent to inflict severe pain or suffering.” Not an easy distinction to make, surely, when the work you’re told to do seems to be designed precisely to inflict pain and suffering.
They were, and are, Federal employees. Not indentured servants. And, as we now know in at least two major cases, specifically chosen for the rough stuff after the initial interrogators proved too wimpy for Five Deferments Dick.
Now imagine that you’re a C.I.A. interrogator in some dank “black site” prison, facing a terrorist you honestly believe had something to do with the attack that killed 3,000 of your fellow Americans and might very well know about the next one. You’re under extreme pressure to extract information from the guy.
Even though it's already been extracted. And without the use of dental implements.
And the guidance you’ve been given from Washington is maddeningly illogical. “Walling” (slamming a prisoner into a wall) is legal, but not revving a power drill near his head. “Cramped confinement” — locking someone in a dark box for 18 hours a day — or depriving him of sleep for 180 hours is O.K., but firing a gun in the next room is not. Waterboarding a prisoner is legal, but blowing cigar smoke in his face may be a crime.
Your instructions are maddeningly illogical? Isn't that generally termed "working for someone"?
No jury in America would have convicted them at the time they were being investigated. Not even close.
Probably because no jury in America would have come close to hearing the case. But, yeah, juries. Paragons of reason.
Mr. Holder’s decision, then, raises fundamental questions of fairness.
Questions which have been matters of black-letter law since the Bill of Rights were adopted. But questions.
Once the Justice Department declined to prosecute five years ago, the misconduct cases were sent back to the Central Intelligence Agency to handle. The agency decided to take internal disciplinary action. The employees and contractors in question — having been assured by their employer that they would no longer be facing prosecution — presumably accepted the administrative sanctions, relying on the Justice Department decision to end the criminal inquiry.
Right. 'Cause otherwise they'd have been all like, Oh no you don't!
For the government now to turn around and prosecute them without any significant new facts coming to light would be, legal experts tell me, a violation of the principle of estoppel.
Run out of room to name 'em, did we?
To a nonlawyer, it sure seems wrong.
See "Juries, comment on reasoning abilities of" above.
And you can be sure that any decent defense lawyer is going to raise this issue if there is a trial — particularly if the government decides to use admissions that might have been made during the agency’s administrative hearings.
Which, of course, it hasn't, and which thus, legal experts tell me, violates the principle of "Making An Ass of U and ME". And assuming, from the announcement of a preliminary investigation into possible criminal wrongdoing, that a bunch of poor forlorn torturers are going to find themselves in the Box, being grilled by relentless Obama administration prosecutors hell-bent on reducing the territory between themselves and the Truth to hot ash, is a violation of the principle of Trying to Keep a Straight Face before the Bar.
Yet it seems that Mr. Holder has instructed Mr. Durham to focus only on whether any agency employees or contractors exceeded the authorized guidelines — to go after the “bad apples”: those at the bottom of the food chain who carried out these orders in wartime and may have violated an incoherent set of rules that made as little sense to them in the field six or seven years ago as it does to us now. This doesn’t look much like justice; it looks like politics. This is scarcely different from what the Bush administration did after the Abu Ghraib prisoner-abuse scandal, scapegoating only low-level military police officers.
Yeah. Oh. Your winnings, sir.
The process that Mr. Holder has unleashed threatens to undermine one of the basic principles of our government. For a new administration to repudiate a consequential legal decision in an individual case made by the previous administration serves to delegitimize our government itself, which is, after, all premised upon institutional continuity.
One last question: do Thrillers really pay that much better than Comedy? 'Cause you missed your calling, Joe.