A quick two-point timeline:
Dec. 11, 2008: The Senate Armed Services Committee released a report laying responsibility for the development of torture techniques at the feet of senior Administration officials. The New York Times editorial board would later write that this report "amounts to a strong case for bringing criminal charges against former Defense Secretary Donald Rumsfeld; his legal counsel, William J. Haynes; and potentially other top officials, including the former White House counsel Alberto Gonzales and David Addington, Vice President Dick Cheney’s former chief of staff."
Dec. 15, 2008: Vice President Dick Cheney went on national television and gave the Chairman of the committee that had issued the report, Carl Levin, a good, long look at his middle finger:
[Johnathan KARL]: Did you authorize the tactics that were used against Khalid Sheikh Mohammed?
CHENEY: I was aware of the program, certainly, and involved in helping get the process cleared, as the agency, in effect, came in and wanted to know what they could and couldn't do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.
KARL: In hindsight, do you think any of those tactics that were used against Khalid Sheikh Mohammed and others went too far?
CHENEY: I don't.
. . .
KARL: And on KSM, one of those tactics, of course, widely reported was waterboarding. And that seems to be a tactic we no longer use. Even that you think was appropriate?
CHENEY: I do.
At the time, there was some debate as to what this rather brazen public rebuke from the usually stealthy Vice President meant. Some folks thought it meant that President Bush was sure to issue blanket pardons for the use of torture, and that Cheney was taking a moment to engage in a little "nyah nyah nyah" against Levin. Others thought Cheney was doing the opposite: betting that there would be no prosecutions at all, even (or especially) without pardons. This would have the effect of securing the future of the Unitary Executive. Even if the next President rolled back the extreme use of Executive Power, Cheney would have demonstrated through his public double-dog-dare-you to Levin that as a de facto matter there were no consequences for the abuse of Executive Power; indeed, that the Bush Administration's actions did not even amount to "abuse."
Yesterday Two days ago, the Vice President raised the stakes in an interview with the AP:
Vice President Dick Cheney says he sees no reason for President George W. Bush to pre-emptively pardon anyone who authorized or was involved in harsh interrogations of suspected terrorists.
Cheney also said during an interview Thursday with The Associated Press that he has no qualms about the reliability of intelligence obtained from terrorism suspects through waterboarding, a technique simulating drowning. The vice president said waterboarding has been used with "great discrimination by people who know what they're doing" and produced much valuable information.
Cheney added that he thought none of the actions of CIA personnel in the past years were illegal and that the CIA had followed White House legal opinion.
President Bush could still, of course, issue pardons, despite the Vice President's braggadocio, here. But it is becoming clearer that the Vice President would very much like it that didn't happen. The absence of both pardons and prosecutions would count as a major long-run victory for Cheney -- one that he might count as even more significant than the relative failure to secure Iraq.
In the light of all this, Rep. Conyers's Jan. 9 remarks, caught by Sam Stein at HuffPo, amount to the hope we have for congressional action.
In an interview on the "Bill Press Show" Friday, the Michigan Democrat floated the notion that the Bush team's illegal wiretapping, torture, detention, and other practices could land some members in an international tribunal.
"I don't want to get too speculative on that, because it's still under review," said Conyers on the radio show. "Now, remember, violation of the federal criminal code doesn't end because you leave office. If a crime has been committed and there seems to be reasonable evidence that it did get committed, there's nothing for a person to be prosecuted... Leaving office doesn't free you up from what you may have done wrong ... Anyone that leaves office, including [the] President ... there's the World Court ... They have tribunals ... This thing is not over with. As they say: Stay tuned."
To which I respond: The World Court? What? Still, Conyers's remarks are much better than nothing.
At TPM, Elana Schor laments that Conyers's H.R. 104 ("The measure would set up a National Commission on Presidential War Powers and Civil Liberties, with subpoena power and a reported budget of around $3 million, to investigate issues ranging from detainee treatment to waterboarding to extraordinary rendition.") has only 10 co-sponsors. Why so few? Schor writes:
The answer is complicated -- and neither House Speaker Nancy Pelosi nor Majority Leader Steny Hoyer have returned my calls to talk about it. But I'd wager that it has a lot to do with the Democratic majority's desire to turn the page on the Bush years and begin pressing on with an Obama agenda designed to showcase its ability to govern. Nothing wrong with that.
But as the stimulus plan and financial regulation and health care reform and a host of worthy issues takes up the oxygen in Washington over the coming months, who will make sure that accountability for past misdeeds gets as much attention as current achievements? Who will shed more sunshine on the debacles of the Bush years?
There's support in the House for it (although not yet, it appears, from leadership). There's a constituency in the Senate for it, and inside the Obama camp. Does anybody think that this sleeper bill will get so much as a hearing in any of the three separate committees it's been referred to?
(According to THOMAS, H.R. 104 was referred to "the Committee on Armed Services, and in addition to the Committees on Intelligence (Permanent Select), the Judiciary, and Foreign Affairs" and its cosponsors are Baldwin, Boucher, Cohen, Delahunt, Gutierrez, Jackson-Lee, Johnson, Nadler, Scott, and Wasserman)
Vice President Cheney is apparently quite comfortable that the answer to Schor's question ("Does anybody think that this sleeper bill will get so much as a hearing in any of the three separate committees it's been referred to?") is "no," or maybe something a little more emphatic, like, "Bwahahahahahahahaha!" He is doing his level best to wrest the most concrete and lasting long-term strengthening of the Unitary Executive that he can from Congress's tactical unwillingness to play hardball. To put it simply: Democrats (other than Conyers and his co-sponsors) think they are playing smart politics. Cheney is playing for keeps. That all by itself means, so far, Cheney is winning.