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America has passed another unfortunate milestone in its ever longer history of torture.  The latest ex-president thinks that is a good thing, but for some without an immediate self-interest it doesn't look quite so pleasant.

For more on pruning back executive power see Pruning Shears.

No Associated Press content was harmed in the writing of this post

In 2002 CIA agents - Americans - tortured prisoners and were videotaped doing so.  In 2005 those videotapes were destroyed, and on Tuesday the five year statute of limitations for filing criminal charges in the matter expired.  For a little background, here are Mark Mazzetti and Charlie Savage in the New York Times:

The key figure in the tape destruction incident was Jose A. Rodriguez Jr., the former head of the agency's clandestine service. In November 2005, he ordered his staff to destroy tapes of the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, the first two detainees held in secret overseas prisons. The tapes had been kept in a safe in the agency's station in Thailand, the country in which the interrogations were conducted in 2002.

Special prosecutor John Durham has been investigating this for years, but as bmaz notes:

The open and shut criminal case against Jose Rodriquez is gone. The clear potential for cases against the four Bush/Cheney White House attorneys involved in the torture tapes destruction, as well as the two CIA junior attorneys, gone. Same for any case against Porter Goss. Gone, and the DOJ has no explanation and nothing to say.

Given the relentless focus on looking forward it hardly seems cynical to expect the investigation to be functionally dead.  Yes, the Times article notes that there still could be prosecutions for false statements during the investigation, but the original actions are now beyond the reach of the law.  As bmaz implies, this also eliminates the possibility of implicating higher ups like Porter Goss and rolling up the chain of command - standard practice for prosecuting corrupt organizations like Mafia families and the Bush White House.

I know that last sentence is very shrill and all, but how unfair is it really?  As bmaz' co-blogger Marcy Wheeler wrote:

Our country has spun so far beyond holding the criminals who run our country accountable that even the notion of accountability for torture was becoming quaint and musty while we waited and screamed for some kind of acknowledgment that Durham had let the statute of limitations on the torture tape destruction expire. I doubt they would have even marked the moment–yet another criminal investigation of the Bush Administration ending in nothing–it if weren't for the big stink bmaz has been making.

It is all the more nauseating because it is so perfectly juxtaposed with the former president hitting the road for his combination victory lap/book tour.  As he hawks his wares for interviewers whose stances range from bland to obsequious, he defends his move to the dark side by claiming (per the Times) that "criminalizing differences of legal opinion would set a terrible precedent for our democracy."  Bush's supporters have made that argument since before he even left office, and his successor's Attorney General eagerly adopted it by stressing (also per the Times) he would "not prosecute anyone who acted in good faith and within the scope of the legal guidance" from White House counsel.

The persistence of this defense, and its widespread adoption by almost the entire elite political and media establishment, is truly astonishing.  It is nothing more than a variant of the Superior Orders argument, something that has been overwhelmingly rejected as a legitimate defense for decades.  But there it is, accepted by everyone in a position to do something.

The ex-president so brazenly admitted to authorizing torture that Amnesty International called for prosecuting him for war crimes, but as with the torture tapes it is hard to imagine anything coming of it.  Instead he gets to make the rounds, replenish the ol' coffers, and go back to his easy retirement.  He just flatly asserts that he was right and all his interviewers accept it.  This was also the case during his presidency, so whatever strange alchemy he uses to ward off scrutiny is still clearly working.

It is hard to write about the nonchalant acceptance of our torture program because it seems Washington does not have a conscience capable of being shocked.  Having created an institutionalized, bureaucratized, formalized program of cruelty is just blandly accepted, as though it is some force of nature that we were powerless to prevent or even mitigate.  The time for a shamed, stricken and humbled response is long past, and now we are even moving past the ability to formally address our monstrous cruelty.  All we can do is mark each such occasion as it passes.  And use it to quietly but insistently observe that anyone who can claim to be following orders, and working to safeguard national security, is above the law.

Originally posted to danps on Sat Nov 13, 2010 at 03:19 AM PST.

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Comment Preferences

  •  Our criminal law is based on the assumption (0+ / 0-)

    that a criminal wants something to which s/he is not entitled and does something to acquire it.
    While it is possible for agents of the state to have a personal interest they want to satisfy and there is an appropriate legal category to apply ("deprivation of rights under color of law"), if there's no personal interest, preferably linked to some material that's to be acquired (contraband or money), then there is no crime.  The ambition to do an exemplary job, for which one will be promoted up the career ladder or given enhanced social status (prosecutor to state's attorney is a good example), doesn't count.  Political ambition -- i.e. the accretion of power over the behavior of other people--doesn't count.  Partly that's because ambition is immaterial and, in the bi-polar world where everything is either good or evil, the immaterial or idea is presumably good.  Evil is wanting material things.  Even murder has to have a motive -- the desire for something.  No motive = manslaughter or accident.  Killing in the line of duty is the latter because of the presumption of conditional immunity on the part of law enforcement.

    If there's no identifiable material interest, it is virtually impossible for an agent of the state to commit a criminal act in the line of duty. Crime has to be predicated on intent.
    Besides, evidence collected via torture couldn't be used in court anyway.  No use keeping it.

    The conservative mind relies mainly on what is plain to see.

    by hannah on Sat Nov 13, 2010 at 03:43:08 AM PST

    •  But of course, unless a preliminary investigation (2+ / 0-)
      Recommended by:
      tbetz, Frank33

      is held, there is no way of knowing if any of what you wrote is applicable.  

      •  True. But, preliminary investigations (0+ / 0-)

        are typically confidential so that a good reputation will not be ruined for nothing.

        I, personally, happen to think that ambition should be considered ample motivation for wrong-doing.  In the case of the newly elected Senator from the State of New Hampshire who aggressively sought the death penalty for a cop shooter because she perceived it to be advantageous for her political career, that blood-thirsty ambition should have been disqualifying.  Instead, she was elected and a dutiful public servant was rejected for the position.

        The conservative mind relies mainly on what is plain to see.

        by hannah on Sat Nov 13, 2010 at 06:13:02 AM PST

        [ Parent ]

    •  Except torture evidence is being used ... (1+ / 0-)
      Recommended by:
      Frank33

      ... in some military tribunals. That's why Omar Khadr pled guilty in the end.

      You know what hope is? Hope is a bastard. Hope is a liar a cheat and tease. Hope comes near you, kick it's backside. It's got no place in days like these.

      by tbetz on Sat Nov 13, 2010 at 04:21:29 AM PST

      [ Parent ]

      •  I think, whether or not evidence is (1+ / 0-)
        Recommended by:
        burrow owl

        admissible is subject to challenge at trial.  If the presiding judge rules it in, the result of the trial might be over-turned on appeal.  But, that's a lengthy process and, in the case of serious crime will doubtless result in the defendant being incarcerated even longer.

        "enhanced interrogation" shouldn't have been permitted in the first place.  But, a legislative body that approves of the state killing people in cold blood, is not likely to look askance at any extreme deprivation of rights, especially when the rights of some persons (women, children, Native Americans, purchased Africans) have historically been negated entirely.

        Some conservatives have been known to argue that "yes, God created all men as equals and on judgment day they can look forward to that promise being realized."  There is great resistance to the principle of equality -- even more to the requirement that every person be treated equally.  The quest for exceptions is constant by those who believe that there must be some way to determine that some people are better and some people are less.  The most recent effort to discriminate?  Sexual preference, citizenship and migratory status.

        It order for human rights to be realized, the obligation to respect them has to be accepted by someone else.  Conservatives, in addition to being resistant to the principle of equality, reject the concept of obligation on the part of "superiors" entirely.

        The conservative mind relies mainly on what is plain to see.

        by hannah on Sat Nov 13, 2010 at 06:05:55 AM PST

        [ Parent ]

    •  No not really, e.g., does somebody driving under (1+ / 0-)
      Recommended by:
      Frank33

      the influence charged with vehicular manslaughter want the dead person dead?

      Very rarely, methinks.

      Yet it's still a crime.

  •  How do statute of limitations (1+ / 0-)
    Recommended by:
    Frank33

    expire for this when I recently read that Gov. Charlie Crist of Florida is considering pardoningJim Morrison who has been dead since 1971?

    The care of human life and happiness, and not their destruction, is the first and only legitimate object of good government. - Thomas Jefferson

    by ctexrep on Sat Nov 13, 2010 at 03:47:20 AM PST

  •  Thank you for posting this. (3+ / 0-)
    Recommended by:
    Roadbed Guy, Chung Fu, bluezen

    Sadly our current President is protecting and enabling these torturers. He was elected and promised change and hope. I guess I am dumb but I thought that meant a return to Constitutional law as well as ending the neo-con wars, torture and secrecy.

    During the President's campaign in 2008, he did not say he would adopt the neo-con policies for endless war. He did not say he would choose a Republican plan for health care. He did not say he was choosing bipartisan economic policies and the same bipartisan fraudsters who deliberately commited economic arson. We are still all waiting for a Jobs Program but I guess it needs to be bipartisan. Perhaps not bipartisan, the President does not really care what Democrats think, only R's influence him.

    I know many, many people, talented and eager to be employed. This Administration does not care, how seriously people are hurting. Where are the jobs? Where is peace? The arrogant and out of touch National Democratic Party has turned into  another Republican party adopting Disaster Capitalism, supporting Oil wars, and while oppressing citizens who challenge the wars and torture.

  •  transparency (1+ / 0-)
    Recommended by:
    Frank33

    Destroy evidence and be ignored. Release evidence and sit in jail waiting for court martial.

    The brilliant, liberal voice of Sam Seder is back! Free mp3 play, Free live stream, Free i-Tunes. M-F show. (Free for now.)

    by OLinda on Sat Nov 13, 2010 at 05:25:42 AM PST

  •  Unfortunately, it looks like this very (2+ / 0-)
    Recommended by:
    Roadbed Guy, Frank33

    good diary won't get the attention it deserves . . . much like the prosecution of the crimes it details.

    Here's what I think happened (and I posted basically the same opinions in another thread several days ago) --

    When Dick Cheney was in the Nixon WH and Watergate went down, he saw Nixon's biggest mistake in that sordid affair as being caught -- not doing anything wrong.  So, when Cheney engineered the R victory/theft of the 2000 election, he had a plan, perfected over 20+ yrs, to commit as many crimes against the Constitution and the people who cheered on Nixon's downfall as possibe.

    Think of it as the "broken window" strategy employed by big city mayors to combat soaring crime rates back in the 80s, in reverse.  That philosophy said, if you remedy a crime early, you prevent its escalation -- if a broken window goes unfixed, it invites more windows to be broken, more (and worse) crimes to be committed, and so on.

    What Darth Cheney decided to do was overload the system with so many crimes being committed that no one would know where to begin when it came to investigating them and/or prosecuting them.

    Which is exactly what happened -- and is still happening now.  The fourth estate has pretty much thrown up its hands as far as delving too deeply into the obscene goings-on during the Cheney/Bush regime, and Nancy Pelosi made the serious mistake of raising the white flag on impeachment procedings the very first day after the Ds took over.

    I'm afraid this course of inaction will come back to bite us in the ass and hasten us along the road to fascism.  It seems Pogo's prediction has come true: we have met the enemy and it is us.

  •  The White House, the Congress, and the Pentagon (1+ / 0-)
    Recommended by:
    Frank33

    … have been engaged in a gradual, ten-year roll-out of our new, highest-tech weapon. Although it involves the entire Internet and media infrastructure of the United States, it is not primarily hardware—it operates by propagating signals through the "noösphere."

    Judging from its effects, one name for it might be the "morality distortion field." To paraphrase David Bowie, while using it "We can be Hitlers, just for a day" and feel none the worse for wear.

    The Dutch kids' chorus Kinderen voor Kinderen wishes all the world's children freedom from hunger, ignorance, and war.

    by lotlizard on Sat Nov 13, 2010 at 05:52:41 AM PST

  •  Don't despair quite yet: The PATRIOT Act (0+ / 0-)

    comes to the rescue. . . . incredibly.

    Generally, when it comes to torture and the conspiracy to commit torture, there are no statutes of limitations.

    The PATRIOT Act codifies this into law:

    Section 3286

    (b) No Limitation. - Notwithstanding any other law, an indictment may be found or an information instituted at any time without limitation for any offense listed in section 2332(b)(g)(5)(B), if the commission of such offense resulted in, or created a forseeable risk of, death or serious bodily injury to another person.

    For a detailed and thoughtful analysis of the impact on statues of limitations on torture prosecutions see here.

    ----- GOP found drowned in Grover Norquist's bathtub.

    by JimWilson on Sat Nov 13, 2010 at 07:29:07 AM PST

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