Update: Obama Opens Door to Investigations, Prosecution: What Will "Immunity" and "Good Faith" Come to Mean? REVISED

bumped by carol, originally posted 2009-04-19 12:43:02 -0500 Original title  on buzzflash: "Obama Releases Torture Memo's: What Will "Immunity and "Good Faith Come to Mean."

In remarks made this morning Obama has opened the door to Congressional investigations and prosecutions of former Bush adminstration officials for torturing people. His formulations are quite precise. Please check out the update links in the comments below. The transcript of what he had to say is provided in the link to raw story in the fourth comment. Please also compare what he said with what Senator Cardan (D-Md) said to MSNBC in the video report in the third comment. Thanks.

The ACLU, and the people who've worked with them over the last few years, deserve to be recognized and thanked profusely by everybody. They figured out what the paper trail which littered the path the Bush administration decided to adopt in pursuing what it called the "Global War on Terror" must be made up of, and how that all could be identified, and then brought out into the public. And they did it. Without their unremitting labor what happened last Thursday when Obama announced the release of the Bush torture memos, would not have happened, and surely not in the way it did. The ACLU legal cases provided the vehicle for  discovery and release, but to get to that outcome requires establishing the right to get to the evidence and a whole infrastructure chain of work from individuals and institutions, who we may never know, but who ought to know that there is a depth of appreciation for what they did and the way they did it.

This commentary is kind of a conjoint effort. Susie Dow thought the developments worthy of coverage and pulled together what she called the "bare bones links" through which the story is elaborated. But, unfortunately, she wasn't in a position to write it all up. She asked if any one wanted to help. Well, almost three years ago now, in June 2006 she picked up something I wrote which went on DailyKos, and cross-posted it here. It was the first posting I ever did on ePluribusMedia, and it was a report on a conference on torture held in a Maryland church that Spring Saturday, around a theme laid out by Ray McGovern. Ray told those there that torture isn't wrong because it is illegal, it is ilegal because it is wrong. I think the message of that conference is still one which applies, perhaps in more fundamental ways now than it did three years ago.  So I said "yes".

This is by way of introduction. I would like to discuss President Obama's statement from last Thursday in which he announced that the four documents which the ACLU had been demanding through the court system would be released. The documents can be found in the references at the end of this. I think it important to stress that the issue brought to the fore by what the President said does not involve the question of who will be punished under the law for what they did. The issue is the same as it was before. For there to be a rule of law there has to be an effective notion of the difference between right and wrong. The documents show how weasel words were developed to extricate the US as a country from the obligations of international treaties and its own statutes because one man wanted it to be that way. How can it be that one man, with his cronies, could over-ride everything this country has stood for for so long

 Obama's text can be found here in the version published by Marc Ambinder. Much of the attention that has been given to the remarks has been focussed on this paragraph:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

And on this one:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

The two paragraphs are being taken to mean that those who tortured have been assured of immunity and will not beprosecuted for what they have done. The context is the one that has become familiar, we should be moving forward, not looking back into the past. I think though, that it is worth while to pursue the question of "a time for reflection and not retribution" and what that might mean, given what else was said that afternoon. 

What is in these documents is as appalling as any of the earlier ones that have already been released. There is evidently a fascination with the particular techniques adopted, and the ways the word-smiths in the Office of Legal Counsel twisted their understanding of what was done, as well as the legal codes, to argue that torture was legal because it was not illegal. Right and wrong did not figure in that discussion. I challenge anyone to read these documents and find a place where the President is cleared to do wrong because there is nothing in the law to stop him. This link though goes to the documents which were made public, as provided by the ACLU, or the references at the bottom link to particular documents some of them are quite long.

Here the Justice Department officials have separated the law from  ideas of right and wrong which, for the most part, we all share (murder, assault, rape, violence against another, robbery and theft are wrong, would we not mostly agree?). Laws which were intended and designed to protect people and their countries against these kinds of wrongs, even under the most adverse ciircumstances that can be imagined, such as modern warfare, were perverted at the whim of one man, or a few. The Geneva Conventions, which are the basis for laws against torture, including in the US, were partly drafted to prevent the recurrence of the kind of criminal atrocities which happened in World War II, and which were put on trial afterwards  at the Nuremberg war crimes tribunal, under a US Supreme Court Justice, Robert Jackson.

The perversion, or reversal of character, in the form of the adoption as a legitimate and legal basis of national policy of the methods and practices against which the country had been mobilized to fight in World War II, was accepted down the line of command. Opposition or questioning in any form was over-ruled and suppressed, in what looks to have been a re-enactment of "kiss up, kick down." Can these matters be cured by putting a few junior officials on trial, holding their feet to the proverbial fire, and securing convictions? Would this be justice in any form, whether retributive or something else?  Where do we turn to for a rebirth of the inner sense of the difference between right and wrong which makes a nation ruled by laws and not by men. Where do we turn to to reawaken the conscience which Bush and company cauterized?

Indeed this is a time, as Obama said, for reflection and not retribution.

The kind of "reflection" that is called for, I think, is what might be involved in the words Obama put together, "good faith" and "will not be subject to prosecution" which I'm going to call "immunity."

it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.

I want to focus instead on three ways in which the idea of "a time for reflection not retribution" can be thought of in light of "good faith" and "immunity".This is the first.  Let's face it. The US security establishment has been flouting international and domestic law on torture since the early 1950's at least. This is not news. References are provided at the bottom. The country gave lip service to laws which were otherwise violated for reasons of expediency whenever it was thought necessary. These kinds of activities were invstigated by the Rockefeller and Church Committees in the 1970's and laws adopted to make wrongful activities illegal.  Bush ended the lip service, and put his own will and desire above the words his predecessors said they respected. When the country gives lip service to its obligations language and morality get separated for everyone, and double talkand equivocation get to rule over good faith.

Second, foot soldiers, and others on the bottom of the pecking order, opposed what was being done, and what they were doing. When they sought support from the chain of command they were kicked in the face. Are we now to fall into the kind of trap that was used to cover up what happened at Abu Ghraib? No person of officer rank was prosecuted or found guilty. None of the political appointees who oversaw the process were ever even charged. Only the poor snooks who ended up on the videos shown on national TV were ever charged and prosecuted. No one even seems to have considered getting them to plea bargain to follow the chain of command back to the source.

Third is what Obama meant by using this formula in the context of his ideas of "reflection not retribution." I'm going to discuss these three aspects in reverse order, to substantiate the case, I hope, that what we need to set up is not an abattoir for sacrificial lambs, or a procedure for political show trials of pre-selected indictees, but an open, transparent, adversarial political investigation in which what happened, who did it, what it means, can be discussed backwards and forwards on national television to the end of revivifying a system of government based on the division of power, by reawakening citizenship in the population and oversight in the Congress. It is time that the pain killers and tranquillizers were allowed to wear off and all the sore spots be exposed to the disinfecting power of sun light. 

There is an assumption that the meaning of the words Obama used is fixed. And, obviously, the more he seems to say it, and the more the Rahm Emmanuels provide the echo chamber, the more it seems the fix is in. On the level of the legal and illegal that may be true.  These matters though will not be decided on that level, but on the level of what is right and wrong. The US can continue to refuse to act on what is right. But by now he whole world knows that is what is going on. Right now there is the choice. Included in that choice is the idea of immunity for those who did their best to oppose the policy but who were suppressed by the chain of command. There needs to be standards for immunization and those standards need to include "good faith", which would be established by way of opposition to the previous policy, effort made to oppose it and willingness to tell the tale now. That approach needs to be adopted from the top of the pyramid to the bottom. And from the bottom to the top. There can be no fear or favor shown as to how such turns out. All have to be equal under such a review. There cannot be "two systems", one for the "gentlemen" and the other for the "players." Such a review must be subject to public scrutiny. The story needs to be told by the people involved and their recollection checked against what ever record remains. That needs to be seen to be done. Anything else will just be more duplicity, cover-up and deceit.

In this kind of process we assume good faith, and use due diligence and foresight to try and secure it, and we look to eliminate double-talk and equivocation or ambiguity in favor of clarity and commonality of purpose. In this way, words will become social facts as shared committments, and lasting shared committments assume also a common understanding of the kind of moral virtues we count on to assure good faith in what we say and undertake to do.

In this case, the social facts remain to be created through the meaning we all end up agreeing, more or less, that the terms "immunity" and "good faith" will have. For me the question is not really where we end up on this, that's down the road, but the kind of mentality we bring to defining how we get there, for that is a question for here and now. For just as we form agreements among ourselves out of the questions and hypotheses contingencies and conditions which we discuss, so does a country.

If this kind of approach can prevail then I would think we could hope to show that the process by which individuals come to agreements about what words mean and what they are talking about, one which is based on a presumption that good faith underpins our committments to each other, would be the same as the way in which the ideas of the primacy of right and wrong which underlie our institutional ideas of legality and illegality might be brought back into our political life.

There can be two views at least of what Obama said. On the one side that it was a rhetorical exercise designed to obfuscate and cover up agreements which have already been made. On the other that he is referring to substantive legal and political issues which need to be addressed if retribution is to be a work of justice and not blind revenge

These two views of Obama's remarks were represented by Eric Bromwich, Literary Professor from Yale, and the ACLU's Jamal Jaafer who has been involved with the cases all the way through in an interview with Salon's Glenn Greenwald. They are not the only ones, they're only chosen as exemplars of the meaning of a speech being in the "eyes of the beholder." Huffington Post ran Bromwhich's view yesterday, it is one among many they have published by now. I chose it because he takes the text linked to above, and subjects it to a line by line analysis, at least of the three or so paragraphs he thinks are key. The presentation can be found here. Bromwich is doing the kind of deconstructionist job on the speech which a rhetorician might be expected to undertake, or an opponent of rhetoricians, to show that what appears to be set in stone is not so at all, but merely sand. He argues that the certitudes conveyed by the President's adopted form of address and style of presentation are not certainties at all, but at best fudges and evasions and glidings over. Bromwich, like many others, is not happy with the idea of immunity for torturing interrogators.

Greenwald's interview with Jaafar is at the very bottom of his write up of the Obama announcement. I wasn't able to copy the file type to insert it here separately. So if you want to hear the discussion, you will have scroll down through the entire commentary, or read it, and you will find it at the end of the commentary. In a nutshell, Jaafar points to the lack of precision in the use of the term "immunity" because, as he shows, the question of "good faith" has not yet been established. Jaafar the lawyer is pointing out that no blanket grant of immunity has been offered to anybody, but only to those who were acting in good faith. What "good faith" means in this context, and how it can be established is not yet defined. Therefore what "immunity" means is not clear either, or who it applies to.

Thus the New York Times account from yesterday is quite welcome in its way, as pointing to what some of the considerations in arriving at a workable meaning for "good faith" and "immunity" might be.

In that article Times writer Scott Shane showed that the operatives interrogating Abu Zubaydah in the secret facility in Thailand opposed the Headquarters' view on the efficacy of torture. Shane also reports that torture was continued and intensified on headquarters insistence, and that the idea that there was always "more"to be discovered, and thus yet more reason to torture, also came from Washington, and not the local operatives. Emptywheel at Firedoglake put this account into the same frame as the reported dispute between the CIA and the FBI over torture and interrogations. Senator Carl Levin from Michigan spoke about this at that conference in Maryland three years ago. He had learned about FBI opposition to the methods employed at Guantanamo and had been working against major bureaucratic stonewalling to get names of FBI agents to interview. He could only report then that he had been unable to.

So behind the two words "good faith" stands the whole issue of the chain of command, of inter-agency relations and of the way policy was shaped and implemented. Zubaydah was being tortured in 2002 before the memos authorizing torture were drawn up in the Justice Department. Emptywheel referred to a New YorkTimes article written by Doug Johnston and published on September 20th 2006 in which the journalist reported that the authority for the way Zubaydah had been treated was a "sweeping classified directive" dated September 17th 2001. In 2006 the Times reported: 

According to accounts by three former intelligence officials, the C.I.A. understood that the legal foundation for its role had been spelled out in a sweeping classified directive signed by Mr. Bush on Sept. 17, 2001. The directive, known as a memorandum of notification, authorized the C.I.A. for the first time to capture, detain and interrogate terrorism suspects, providing the foundation for what became its secret prison system. 

That 2001 directive did not spell out specific guidelines for interrogations, however, and senior C.I.A. officials began in late 2001 and early 2002 to draw up a list of aggressive interrogation procedures that might be used against terrorism suspects. They consulted agency psychiatrists and foreign governments to identify effective techniques beyond standard interview practices.

The memos then seem to have been after the fact rationalizations, providing legalese based justifications which could be leafletted where necessary to support what had been decided and implemented before any of the Justice Department professionals put pen to paper at all.

Isn't that what we all learnt, at least those of us who are old enough at the time of Watergate? Back then there was the Rockefeller Commission investigation into "dirty tricks" which found that the Nixon White House was using the intelligence agencies in assassinations and other dirty tricks, and was also involved in torture through such programs as the CIA's "Mind Control" behavior modifiying program called "MK-Ultra." How come thirty five years later we are back to doing the kind of activity which was stopped and made illegal? The documents published suggest that torturers/interrogators were "trained" with a curriculum based on the cold war program employed to teach military how to resist torture. But, the kind of methods Bush turned to after 9/11 were in use before, and almost continuously, with little respect accorded to anything discovered during the Watergate years.

The CIA's manual on " coercive interrogation" known as Kubark was pulled together in the early 1960's and made available a while ago now. It was based on the methods Communist regimes (Soviet Union, Peoples Republic of China, North Korea) used in the 1950's. The School of the Americas at Fort Benning in Georgia was where the US military trained allied military police and security forces in these kinds of methods. The School of the Americas Watch has published on torture manuals, and has provided a timeline of US involvement in torture. Organizations like the Torture Abolition and Survivors Support Coalition and Human Rights First have made it their business to take the lead in exposing and opposing torture and helping its victims.

This background I think, sets the stage for part three of the argument, and I think it does that in two ways. First, I think I've shown that it is probably not an adequate response to what are the undoubted crimes of the Bush administration to insist that those on the ground who did the dirty work be refused immunity on any terms. We should all be reminded of who was prosecuted for what happened at Abu Ghraib and who was not. Lindy England was not the mastermind of that undertaking.

I think that "good faith" is like a two-way street. "Good faith" is much more than a polite way of saying "I was just obeying orders." It is clear that the "command" at all levels was riven with dissension over the political orders coming down from the Bush White House. It is clear that opposition was not just "sotto voce" but was voiced aloud where it should have been not only voiced, but also heard, listened to and passed on, and that those who fought their superiors in the bureaucratic trenches had every right to expect that their superiors would go to bat for them against Bush and Cheney, Libby and Addington and the rest of the crew.

Then, it is clear that there are crimes that Bush and Company did commit. But how did the US end up with a security establishment organized for counter-insurgency warfare using the kinds of methods found in documents like Kubark and the curricula of the School of the America's, which were created many years before? If this sickness is going to be cleaned up there needs to be a review of how the materials happened to be to hand for Bush to call on when he lacked the mental capacity to think of anything else to do.

These are among the reasons why we need public investigations, and why we need Congress to do them. The proponents of bi-partisan commisisons of independent experts argue that Congress is "too political" to be trusted with this kind of work, as the authors of this piece do. There is a broader, and no doubt more popular view, that Congress is totally and irredeemably corrupt, bought and paid for by the "money power" down to the lastmanjack, or womanjack of them, and nothing can be expected from there, so don't bother even trying.

On the first, political investigations are exactly what we do need. The issue is America's standing in the world. The issue is that Americans need to get involved as citizens on questions of the country's foreign policy. They need to know what is being done in their name, by the graduates of the School of the Americas and by others. They need to know so they can decide who to vote for and why. If we are going to torture people of color around the world, as a national policy, that ought to be discussed and voted on, as it was last year, and not adopted secretly as the result of behind the scenes manipulations of bi-partisan groups of experts. We need to understand that the country is in search of much more than an image makeover by public relations experts, like this report by Tim Bucholz presented to a county level working group on foreign policy suggests. If we are going to deal with these kinds of  crimes, and change what created them, then we need to take responsiblity in a new way, by demanding that the people we just elected do something about what was decided in the elections, and by making it as difficult as poissible for the next group of self-appointed "bi-partisan experts" to withdraw out of sight and carry on like they were before. That way it ought to be possible to develop counterweight to the money power. 

On this question of torture, Congresswoman Schakowsky from Illinois has begun to organize for Congressional hearings. The Congresswoman does not hold with the idea that we should just move on. She thinks it is impossible to prosecute future crimes, for they are ones which have not been committed yet. She wants to redress what has been done already. Nancy Pelosi will announce tomorrow how she intends to address the question of responsiblity for the financial crisis through Congressional hearings. Congressman George Miller of California is calling for hearings into how private pension plans 401K etc have been looted by the fee charging practices ofthe financial community. I'm sure there will be many more of these kinds of events to get involved with.

These are all glimmers of possible new beginnings. But they are going to need nurturing through the modern version of petition drives, e-mails and twitters and all the rest of it to put heat on what will move fastest under the circumstances. That way words like "good faith" and"immunity" may actually come to mean something significant in the life and history of the country, and cease being the empty vessels, even if made of gold, which were laid before us, for our contemplation, last Thursday.


Torture is not wrong because it is illegal, it is illegal because it is wrong
By Chris White, ePluribus Media Community, June 21, 2006

RELEASED: The Bush Administration's Secret Legal Memos
ACLU, April 16, 2009

Eric Holder v. America's legal obligations
By Glenn Greenwald, Salon.com, April 17, 2009

How to build a torture commission
By Mark Benjamin, Salon.com, March 4, 2009

Divisions Arose on Rough Tactics for Qaeda Figure
By Scott Shane, New York Times, April 17, 2009

Schakowsky On Torture: "Just Following Orders" A Historically Bogus Argument
By Ryan Grim, Huffington Post, April 17, 2009

PDF - USA Regaining Our Global Reputation
The Obama For America Foreign Policy Working Group of Loudon, Virginia website

Obama to release OLC torture memos; promises no prosecutions for CIA officials
By Glenn Greenwald, Salon.com, April 16, 2009

UPDATE III: Interview with ACLU's Jameel Jaffer
By Glenn Greenwald, Salon.com, April 16, 2009

The Torture Memos and the FBI-CIA Dispute
By Marcie Wheeler, FireDogLake.com, April 18, 2009

Counterintelligence Manuals Timeline
From School of the Americas Watch website

Torture Abolition and Survivor Support Coalition

Human Rights First Reacts to Release of Torture Memos
Press Release, April 16, 2009

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Just below, ConnecticutMan posted about one group that's going after the lawyers involved in drafting the torture memos by asking that law licenses be revoked. Maybe what it really comes down to is the will of the people to achieve Justice when our leaders - for whatever raison du jour - can't be bothered.

Great commentary Chris!

MSNBC is breaking the story that Obama is leaving the door open to prosecute Bush administration officials for torturing people. The news is apparently coming out of the President's meeting with King Abdullah of Saudia Arabia. There will be more. Here's the announcement from the news feed and  some discussion with Senator Cardan of Md. More to come.

This looks like a big deal, not because of the language in which it was said, but because it is a door opener that will get the process going in an certain kind of way. Rawstory hasa summary of the news around this and the transcropt of what Obama said today to give his go-ahead to what so many have been demanding. Here it is.