If nothing else, Republicans over the past few weeks have delivered an important civics lesson to the American people in general—and Democrats in particular. Facing a growing mountain of irrefutable evidence that the incompetent, out-of-his-depth GOP president of the United States has been enmeshed in a network of ties to Russian business and government interests that put American institutions and democracy itself at risk, the GOP rallied not to the nation’s defense, but Donald Trump’s.
The signs of the expanding counterattack are everywhere. For weeks, special counsel Robert Mueller and senior career personnel at the Justice Department and FBI have been under assault from Republicans in both Houses. Calls to investigate Mueller and “purge” the FBI were followed by the specter of GOP Sens. Lindsey Graham and Chuck Grassley referring Russia dossier author Christopher Steele for charges over unspecified lies made to unnamed government investigators. (The transcript of the Fusion GPS Senate testimony released by California Democrat Dianne Feinstein suggests both why Grassley broke his promise to publish it and the smear campaign underway against Steele.) Meanwhile, the Trump White House and its allies are ramping up their attacks on Secretary of State Hillary Clinton, the former secretary of State who left government service in 2013. The Republicans’ misdirection campaign includes the assignment by FBI agents to probe the 2010 Uranium One non-scandal, supposed “pay to play” influence peddling by the Clinton Foundation, and, of course, “her emails.”
The message from the GOP’s best and brightest is unmistakable. For starters, it turns out Republicans are just fine with a president who leads from behind, provided the president is Vladimir Putin and the behind is Donald Trump’s. Just as important, Republicans are only to happy to advocate “the criminalization of politics,” just as long as the politician in question is, like Hillary Clinton, a Democrat. And in their quest to deflect attention from real crimes to imagined ones, Republicans won’t hesitate to “look backwards” at past Democratic administrations to rev up their base and hijack media attention.
Let that be a lesson for Democrats.
In 2009, Republican politicians and the conservative commentariat warned the newly inaugurated President Barack Obama not to prosecute the architects of the Bush administration’s regime of detainee torture. Despite the clear violations of U.S. and international law committed by the authors of America’s so-called “enhanced interrogation techniques,” right-wingers screamed that any investigation of President Bush, Vice President Cheney, and the likes of Condi Rice, John Yoo, David Addington, and Jose Rodriguez would constitute “presidential poison” and “the criminalization of conservatism.” Dick Cheney took to the airwaves to dare the Justice Department to come after him and his henchmen. With the country he inherited teetering on the brink of economic catastrophe, President Obama and Attorney General Holder backed down in the face of the GOP’s scorched earth threats. Obama would not “look backwards” at American torture under President Bush and thus risk “the criminalization of policy differences.”
And to be sure, what the United States had done was torture. We know this not just because President Obama casually announced, "we tortured some folks." In November 2014, the U.S. delegation to the quadrennial review of the United Nation's Convention Against Torture "acknowledged that the United States had tortured terrorism suspects after the Sept. 11 attacks." And two years ago, the highly redacted executive summary of the 6,300-page Senate Select Committee on Intelligence report on torture introduced Americans to terms like "rectal hydration" and "rape by broomstick."
But what the United States did not do—what President Obama did not do—is hold anyone accountable for either those acts of torture or the preposterous and dangerous legal framework the Bush administration erected to justify them. Placing political expediency over principled rule of law, Obama refused to "look backwards" to prosecute those responsible, even when they bragged about their culpability.
President Bush's endorsement of the use of waterboarding and other enhanced interrogation techniques against Sept. 11 mastermind Khalid Sheikh Mohammed and other terrorism suspects came during a June 2010 appearance before a business audience in Grand Rapids, Michigan. As CNN reported:
"Yeah, we waterboarded Khalid Sheikh Mohammed," the former president said during an appearance at the Economic Club of Grand Rapids, Michigan, according to the Grand Rapids Press.
"I'd do it again to save lives," he added.
If that sounds familiar, it should. That February, Dick Cheney bragged to ABC's Jonathan Karl in almost the exact same terms:
“I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques ...”
And in that same interview, Cheney confirmed that both the Bush legal team that invented the spurious rationale for detainee torture and those implementing it were merely following orders:
“The reason I've been outspoken is because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do.”
Besides, former national security adviser and Secretary of State Condoleezza Rice explained in 2011 to her students at Stanford University, what President Bush asked them to do was legal by definition. Echoing Richard Nixon's post-Watergate dictum that "when the president does it that means that it is not illegal," Condi announced:
"The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture...The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture." [Emphasis mine]
There are only two problems with the Bush-Cheney tagteam defense of waterboarding. The first, as the Senate torture report is once again confirmed, is that it didn't save lives. As ThinkProgress noted:
Waterboarding Mohammed 183 times didn't save any lives. In fact, Mohammed told U.S. military officials that he gave false information to the CIA after withstanding torture. Additionally, a former Special Operations interrogator who worked in Iraq has stated that waterboarding has actually cost American lives: "The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001."
The second problem for the Bush torture team is the one President Ronald Reagan raised in his May 1988 signing statement accompanying the Convention Against Torture (CAT). Reagan noted that it "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment." As the Gipper explained in his message to the Senate:
The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.
To put it another way, American and international law didn't give Barack Obama—or any American president—the choice to decide whether "to look forward as opposed to looking backwards" when it came to torture practiced by the United States. It's no wonder the UN's CAT Committee expert Alessio Bruni asked Assistant Secretary of State Tom Malinowski: "If the delegation could give an example of prosecution of public official violating this legal provision."
As Marjorie Cohn detailed in October 2012, the United States has "a legal duty to prosecute torturers:"
The US has a legal duty to prosecute those responsible for torture and abuse, or extradite them to countries where they will be prosecuted. When we ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), we promised to prosecute or extradite those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.
In February 2010, Scott Horton pointed out that the while legal action against members of the Bush administration would be an extremely difficult task, in this case the prosecutors would have one major piece of evidence in their favor:
Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?
As a horrified Horton pondered in amazement:
What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.
Ironically, George Washington University law professor Jonathan Turley thought so as well. (Turley, the self-proclaimed crusader against over-reaching executive power, later led the House GOP's lawsuit against President Obama’s implementation of the Affordable Care Act.) Writing on February 15, 2010, Turley lamented that President Obama had turned his back on the law:
It is an astonishing public admission since waterboarding is not just illegal but a war crime. It is akin to the vice president saying that he supported bank robbery or murder-for-hire as a public policy.
"Because it would have been politically unpopular to prosecute people for torture," Turley later wrote, "the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point." And, as we'll see below, a Republican talking point at that.
Even before he was sworn in, President-elect Obama made it clear that Bush, Cheney, and their torture architects need not fear punishment from him:
We need to look forward as opposed to looking backwards.
From a political and economic perspective, Obama's fear of looking into that rearview mirror was understandable. After all, the economy he inherited from President Bush was in freefall. In the last quarter of 2008, GDP collapsed by 8.9 percent; 2.2 million jobs evaporated in the first quarter of 2009 alone. With the economy requiring immediate action and his ambitious agenda for 2009 before Congress, President Obama was afraid to risk a total political conflagration in Washington by launching the kind of investigation the Bush administration's possible war crimes demanded.
So, Obama signaled to Team Bush and its Republican allies there would be no accountability for their high crimes and misdemeanors. And he did so by reducing war crimes to a talking point conservatives love most: "criminalizing politics." During his confirmation hearings on Jan. 16, 2009, attorney general nominee Eric Holder declared, "waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else:
I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that.
Ultimately, the Obama Justice Department never prosecuted anyone involved in the design and execution of President Bush's program of detainee torture. While the memos authorizing these potential war crimes have seen the light of day, those who ordered and perpetrated them did not. Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." Ultimately, none were, as Holder in August 2012 ended his last investigation into two detainee deaths. President Obama went further in seemingly backing away from any legal action against the Bush torture team:
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...
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.
But while Obama was counseling reflection, Republicans and their amen corner were promising retribution if the new president did anything more. If Republican war criminals were prosecuted, conservatives warned, Republicans would launch a scorched-earth response to metaphorically burn Washington to the ground.
Powerline's John Hinderaker made that threat in a piece titled "Criminalizing Conservatism." "Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail," he wrote, adding, "Toward that end, they have sometimes tried to criminalize what are essentially policy differences." In a scathing editorial on April 23, 2009, titled "Presidential Poison," the Wall Street Journal went on the attack, using the GOP's tried and untrue criminalizing politics canard:
Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...
Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...
Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.
But more than six years later, no "patriotic official" has been indicted, no judges have been impeached, and no professor has been stripped of his academic tenure—not even the one who defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” John Yoo was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee remains on the federal bench. Cheney's legal alchemist David Addington is now creating alternative realities at the Heritage Center. Psychologist James Mitchell, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lose his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." (Despite facing a civil lawsuit, Mitchell cashed in with a book deal.) Jose Rodriguez, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who has smeared Senate Intelligence Committee report on the CIA torture program before having read a word of it.
Meanwhile, Dick Cheney appeared regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush, he is free to paint himself in the shower and give speeches to "replenish the ol' coffers."
Now, no one enjoys filling the coffers as much as Donald Trump. And as president, Trump wrote in an April 11, 2016 op-ed, he would enjoy something else:
The president of the United States is the commander in chief of our forces and has the ultimate responsibility when it comes to the conduct of American officials gathering intelligence about potential actions harmful to this country. I have made it clear in my campaign that I would support and endorse the use of enhanced interrogation techniques if the use of these methods would enhance the protection and safety of the nation. Though the effectiveness of many of these methods may be in dispute, nothing should be taken off the table when American lives are at stake. The enemy is cutting off the heads of Christians and drowning them in cages, and yet we are too politically correct to respond in kind.
As with so much else advocated by Donald Trump and his most ardent backers, the term "enhanced interrogation techniques" sounded better in the original German:
Before there were "enhanced interrogation techniques," there was verschärfte Vernehmung, (which means "enhanced interrogation techniques") developed by the Gestapo and the Sicherheitsdienst in 1937 and subject to a series of stringent rules. Now, as we have seen previously, there were extremely important differences between the Gestapo's interrogation rules and those approved by the Bush Administration. That's right - the Bush Administration rules are generally more severe, and include a number of practices that the Gestapo expressly forbade.
As Andrew Sullivan pointed out, during the war those German officers who went beyond the verschärfte Vernehmung were punished. And after the war, as Scott Horton helpfully recalled, those who defended their brutality at the Nuremberg trials by saying they were "just following orders" or acting to prevent imminent attacks were put to death.
That fate, some Republican zealots were insisting during the 2016 campaign, should be Hillary Clinton's. Many, many more believe she should be prosecuted and imprisoned for the unpardonable offense of disagreeing with the GOP. For her emails and Benghazi, for the Uranium One deal and the Clinton Foundation, they still say, “lock her up.”
But when it came to actual crimes, as a nation under Barack Obama we decided justice was too difficult, too dangerous, too untimely, and too inexpedient. Republicans politicized crime and we let them get away with it. In 2016, with the Bush torture team unpunished, candidate Donald Trump promised to do much worse. That’s what happens when you don’t “look backwards.”
The next Democratic president should never make that mistake again. And that message isn’t coming from me, but from the Republican Party.