Holder's Bad Applism and Our Own

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By David Swanson
(with image by Michael Parenti)

Attorney General Eric Holder is addressing a war crime without addressing the wars, and is focusing on the lowest ranking participants in that crime without addressing its status as official policy established by higher ups and openly confessed to by a former president and vice president. This is bad applism, the same approach that has held a handful of recruits responsible for Abu Ghraib, claiming to thereby remove bad apples from a good system. But Congress' and the public's approach to the horrors of the past eight years is driven by our own bad applism, by our belief that the departure of Bush and Cheney in itself significantly repaired a system of government that is rotten to the core.

As Holder left an appropriations subcommittee hearing on April 23rd I spoke up loudly from the third row, "We need a special prosecutor for torture, Mr. Attorney General. Americans like the rule of law. The rule of law for everybody."

He replied as he approached me and walked by, surrounded by body guards, "And you will be proud of your government."

I was joined by others in replying simultaneously, "Yes, we want to be proud of our government. We're ready. No need to wait."

Four months later, last Monday, Holder appointed a special prosecutor, but only for particular incidents of torture and with this important, and illegal, limitation announced by Holder: "[T]he Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel (OLC) regarding the interrogation of detainees." Even did our domestic system of government allow the OLC to create laws, our obligation under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed by President Reagan, ratified by the Senate, and made the supreme law of the land by Article VI of our Constitution, would prevent the creation of any law that permitted torture.

This decision by Holder had been publicly dictated to him by President Obama, and therefore sets a precedent of allowing a president to choose when laws should be enforced, and of allowing an aggressive political party to dictate such things to a defensive one. In April 2008, candidate Obama told the Philadelphia Daily News, "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt." (Apparently it's somehow different to have it consumed by what Republicans perceive as an evil plot to euthanize their grandmothers.) Holder's decision also establishes as accepted precedent the practice of "legalizing" obvious crimes by instructing the OLC to draft secret memos stating that the crimes are legal.

Holder's intention on Monday was clearly not to create a criminal investigation of a crime, but to create a preliminary investigation into whether to have a full investigation into certain types of people involved in certain incidents. Those meant to have immunity include not just any torturers who complied with the OLC's secret memos, but also the lawyers who drafted the memos, the lawyers who told them what to draft, and the higher ups who authorized and developed the torture program. And if the preliminary investigation never results in prosecutions, then immunity will be shared by all, even the bad apples.

But another course of events is possible. Assistant United States Attorney John Durham could, if he chooses, expand his focus beyond Holder's intentions. Durham does not have the independence enjoyed by someone like Ken Starr, who was authorized under the now lapsed independent counsel statute, and funded by Congress, to investigate then President Bill Clinton until he found or manufactured a crime, any crime. But Durham has been assigned to preliminarily investigate certain instances of torture, and the limitations dictated by Holder do not technically limit him.

Who in this sick saga "acted in good faith and within the scope of the legal guidance given by the OLC"? Nobody we've heard of thus far. Certainly not Alberto Gonzales who encouraged George W. Bush to declare that the Taliban and Al Qaeda were not covered by the Geneva Conventions in order to avoid prosecution for war crimes. Definitely not George W. Bush who acted on that advice, who held command responsibility for acts of torture before and after the drafting of OLC memos, who launched the illegal wars of which torture was one small part, who failed to hold torturers accountable once exposed, and who has confessed in a televised interview to approving of torture. Decidedly not Dick Cheney, who has made similar televised confessions with great frequency while also fingering Bush. And not John Rizzo, acting general counsel for the CIA until this past July, who told the OLC what types of torture he wanted "legalized" and provided false information to the OLC to encourage that process. Logically not the OLC lawyers themselves who drafted the memos that blatantly declare crimes to be legal, crimes known to them to be illegal, memos later overturned by the Department of Justice under President Bush before being enshrined as having temporarily been law by Holder and Obama. Nor the same lawyers and others at the Justice Department who orally approved acts of torture not covered by the memos. Nor those lawyers and the lawyers at the CIA who created guidelines for interrogations that the CIA's inspector general considered so vague as to encourage their own violation. And not any of the actual torturers we've yet read about, each torture session thus far exposed having taken place prior to the memos, in excess of the crimes authorized by the memos, in ignorance of the memos, and/or with documented concern by the torturers that they might later be prosecuted.

While I am not yet proud of my government in this regard, I am proud of my country's civil society and of the many organizations and individuals that immediately protested Holder's announcment on Monday as insufficient. These included groups like the ACLU, MoveOn.org, Alliance for Justice, Constitution Project, and Amnesty International that for years refused to support calls for the impeachment of Cheney or Bush, but which now support their prosecution, as do 217 organizations that have signed a statement I drafted in February. Congressman John Conyers, Congressman Jerrold Nadler, and Senator Russ Feingold, all opposed impeachment but all immediately released appropriate statements on Monday, as did many good bloggers who never backed impeachment but immediately criticized Holder's plans as insufficient. Of course, also speaking out on Monday were groups like the Center for Constitutional Rights and Voters for Peace who have always been there. True Majority / U.S. Action, which has replaced MoveOn.org in recent months as the model of timidity, in contrast announced an unqualified success last week. But what happened last week demands action from all of us, and an understanding of the full extent to which our system of government itself has been damaged.

In a nutshell, here are four things that happened simultaneously at the beginning of last week:

1. Selective leaking from the OPR.
For years, we've awaited the "imminent" release of a report from the OPR on the OLC, that is to say a report from the Office of Professional Responsibility on the Office of Legal Counsel, a report by one section of the Department of Justice on another. It may strike a few of us as silly to await a report on the drafting of torture memos (not to mention war memos) from the same agency that produced them, when we've already seen the memos and can remind ourselves of their blatant and gruesome criminality any time we like. But the House Judiciary Committee and Senate Judiciary Committee have delayed any investigations or impeachments until that report is released, state bar associations to which citizens have filed complaints have delayed any possible disbarrments until that report appears, and commentators have suggested for reasons that remain unclear to me that this report will change everything. Holder began his announcement on Monday by stating that he had "reviewed" this report "in depth." But he did not make it public. Had he done so, it would likely have called attention to his failure to open a criminal investigation into the crimes there described, namely the drafting of the memos. Instead, Holder leaked to the New York Times the findings of another OPR report recommending the reopening of investigations of particular torture cases that the Department of Justice had previously chosen not to pursue. Then he announced an investigation into those who had violated, as opposed to those who had drafted, the memos. This selective leaking was not entirely unlike the Bush-Cheney gang's practice of selectively leaking misleading claims about weapons of mass destruction to the New York Times and then discussing those reports the next day on television.

2. Recommendations by task force on interrogations and transfers.
After five months, a task force created by President Obama made public some of its recommendations to him, inlcuding recommending the creation of a new team to oversee interrogations, and recommending the continued use of rendition -- the practice of shipping people to other nations for interrogation. This generated a pair of contrasting stories. The first, which got more play, became another story of Obama (again) ending torture and putting the past behind us. The second became a story about concern that torture would be continuing, albeit outsourced. In other positive but limited news, the Obama administration leaked word that it would finally give the Red Cross, if not the public, the names of prisoners it was holding outside any rule of law in secret camps in Iraq and Afghanistan, and -- compelled by a court -- Obama finally released Mohammed Jawad, a teenaged prisoner held for six years in Guantanamo on no legal basis, as others still are.

3. Release of CIA IG report and other documents.
Following a suit by the ACLU, the CIA was forced to release (portions of) a report on torture produced by its inspector general in 2004 and other documents outlining the CIA's and OLC's torture policies as late as 2007. These documents added to our understanding of the crimes committed without exonerating anyone or establishing that torture had proved itself an effective interrogation method. Included in the report, but heavily redacted, are accounts of torture to the point of murder, which is arguably not a useful interrogation method. And, of course, were torture ever effective it would remain illegal as well as potentially counterproductive by producing animosity toward a nation that engages in it and by brutalizing those practicing it. Redacted from the report for no legitimate reason that I can imagine -- and the former inspector general himself objects to this censorship -- were the report's recommendations. Also released, to the Center for Constitutional Rights, was a pair of memos that former Vice President Cheney had been claiming to want released for months. Cheney had said repeatedly that these memos would prove that torture had been effective. Nothing in the memos actually backs up Cheney's claims or contradicts the evidence that torture does not work, evidence presented to the Senate Judiciary Committee by former interrogator Ali Soufan on May 13th. In fact, the documents that Cheney claimed would prove his case consist largely of information allegedly obtained from Khalid Sheikh Mohammed with no explanation of how it was obtained, except for references to his revealing information once confronted with the testimony of other prisoners. And much of the information relates to plots that were at most in the brainstorming stage. The time bomb wasn't ticking and in fact didn't even exist.

4. Appointment of prosecutor.
Having orchestrated the three announcements above, Holder announced the appointment of a special prosecutor with the limitations I've described.

THE FIRST BRANCH

We can and must increase the direct pressure on the Department of Justice to fully prosecute torture and numerous other crimes, including aggressive war, the use of assassination squads, misspending funds on war, lying to Congress, using false propaganda domestically, imprisoning children, detaining people without charge, using the U.S. military domestically, spying without warrant, exposing an undercover agent, obstructing justice, politically motivated prosecutions, and so on. Many of these crimes could be prosecuted at the state or local level as well, including the murder of U.S. soldiers, as argued by Vincent Bugliosi. We can and must work to advance civil suits and foreign and international prosecutions as well. We must use every tool and technique we have, and I enthusiastically support the discussions some activist organizations are currently engaged in about plans to nonviolently surround the Department of Justice and not let anyone leave until the department lives up to its name. But isn't there another angle that we're forgetting? Might we not have some use for that institution that takes up the first 58 percent of the U.S. Constitution?

Restoring power to Congress is essential if we want to deter and prevent executive abuses in the future, so an approach that empowers Congress has long-term advantages. And in the short-term, we may find that we have more power over people we can vote out of office, generate good and bad local media for, fund and defund, and protest and disrupt as needed, than we do over a prosecutor. It strikes me as just possible that we could pressure Congress to produce additional, superfluous but influential, information that would feed an expansion of the criminal investigation while imposing other forms of accountability directly.

Reasons Congress might be empowered to act with greater backbone than it's shown in the past several years include: 1) progressive House members came very close to stopping a war supplemental / IMF bailout bill in June. 2) progressive House members may stop or shape a healthcare bill if they don't collapse in the final lap. (This is true and important regardless of how good or bad you think the measure is for which they've taken a stand.) 3) these first two things have happened because of public pressure and the public is just getting warmed up. 4) the corporate media last week finally began admitting that torture has occurred, calling it by the name torture, and admitting that torture is a crime. 5) the new Justice Department has made clear that it will not hold the previous Justice Department accountable. 6) Congressional action at this point cannot be used as an excuse for not appointing a special prosecutor; he's already been appointed. 7) Democrats gain politically every time Cheney and Bush and their criminal gang of thugs are mentioned in public.

So, what do we want Congress to do? We want the House Judiciary Committee to hold impeachment hearings for judge, and former OLC head, Jay Bybee, force him to talk, subpeona those involved, and enforce compliance through the Capitol Police and inherent contempt, not through the Justice Department or the White House. We want the Senate Judiciary Committee and other committees to take up appropriate crimes, send out subpoenas, and enforce them. We want the House to establish a select committee, as would be done through passage of H.Res. 383, a resolution introduced in April by Congress members Barbara Lee, Robert Wexler, and John Conyers. We want the House and Senate to pass a bill to extend to 10 years the statutes of limitations on prosecuting the crimes at issue, as proposed by John Conyers seven months ago but not yet introduced as a piece of legislation. (Most crimes are limited to 5 years for prosecution, torture is typically 8 years, unless torture becomes murder in which cases there is no limitation.) The Justice Department is investigating for possible prosecution crimes on which the statute could soon expire. In such circumstances, the Attorney General ought to be extremely grateful to Congress should it take this action. And if any of this must wait for the never-to-be-released OPR report on the OLC, then Congress can publicly and aggressively demand the release of that report, or a member with access to it can read it into the record. Congress also needs to force the release of torture photos, and sadly a side benefit to Holder of having now named a prosecutor may be a new legal basis for concealing them.

Congressman John Conyers spoke to a crowd of activists from around the country at Busboys and Poets restaurant in Washington, D.C., in June at a fifth birthday party for Progressive Democrats of America. Conyers opened by remarking: "There is no one more disappointed than I am in Barack Obama." This comment sank in hard for some of the activists in the room who had been told by Conyers last year that electing Obama took precedence over impeaching Dick Cheney. But Conyers was talking about healthcare. "Buddy," said Conyers, referring to President Obama, "you are wrong on healthcare and it's going to cost you big time." Conyers argued that unless we compelled Obama to order Congress to write a better healthcare bill, Obama would be a one-term president. Of course, this is extremely twisted. It is far easier for us to influence our representatives in Congress, and they have the power to send Obama a good healthcare bill whether he wants it or not. But I bring this up as an indication of willingness by Conyers to differ with the executive. If it's right to push for better healthcare, it might just be right to push for enforcement of our laws against torture as well. In some corner of his soul, Conyers wanted to impeach Bush and Cheney, and not a single one of the arguments he used against it applies to Jay Bybee.

Well, I take that back. There is one argument he used that still applies, but it's greatly weakened and it never held water. It is true that the corporate media would attack Conyers and call him names. While the media has generally and suddenly admitted that torture is a crime and that the crime was committed, there is also a general media consensus that it should not be prosecuted. A number of media pundits, in fact, have asserted that it would be wrong to prosecute such crimes precisely because the media would do an outrageous job of reporting on it. But Conyers and other members of the Judiciary Committee and other congress members in general are smart enough to realize that no media coverage has the power to make Dick Cheney sympathetic. And Conyers would not have to do this alone. Wexler, Nadler, Kucinich, Baldwin, Lee, and others would readily stand with him.

There are three big forces corrupting our government, and the corporate media is only one of them. Another is the influence of parties. Why did the war supplemental / IMF bailout bill pass? Because the Democratic party threatened and bribed its members to vote Yes, against the wishes of their constituents. "I want to support my president," said Rep. Jan Schakowsky (D-Ill.), who changed her No vote to a Yes. But Conyers voted No, and to my knowledge there is very little that his party can threaten him with.

The third big corrupting force is legalized bribery or "campaign contributions." There is a lot of money behind keeping the wars going and covering up most war crimes. There is huge money behind protecting the corporations engaged in illegal spying. There is a tidal wave of money drowning out healthcare reform. But there is not a major money source behind torture. We need to think in terms of removing these sources of corruption as we work to restore power to Congress, but on the issue of torture the corrupting dollar signs may not be aligned strongly against us.

Another force corrupting our government is the shift of power from Congress and the courts to the White House and the immunity from law enforcement granted to the president. These are changes happening right now, as outrageous innovations made by Bush and Cheney are accepted and cemented in place by Obama. Imagine if Conyers had attempted or even succeeded in impeaching Cheney, if Congress had not tried to retroactively immunize Bush and Cheney through legislation, if courts had universally upheld the law the past several years, or if prosecutions of top officials were now underway. In that very different world, which can still be achieved, I'm willing to wager that President Obama would not be altering laws with signing statements or creating laws with executive orders, would not be establishing preventive detention, would not be continuing renditions, would not be escalating in Afghanistan or continuing in Iraq or routinely striking Pakistan or employing mercenaries like Blackwater or propagandists like the Rendon Group, would not have kept Robert Gates as Secretary of "Defense", would not have allowed John Rizzo to remain for any time as general counsel at the CIA, would not have given jobs in the White House to John Brennan or Greg Craig, would not be keeping so many politically selected prosecutors in place so long, would not be keeping the spying programs in place and secret, would not be expanding claims of state secrets beyond what Cheney ever attempted while immitating Cheney in hiding records of visitors to the White House, and would not be failing to prosecute crimes like torture which is what allows them to continue no matter how many times you say they've ended. Without a real deterrent, like law enforcement, any crimes that Obama does end can simply be revived as policy options, no longer crimes, by his successors.

When will we all get over it and stop asking for justice? It doesn't matter. That's the wrong question. Without justice, the crimes will continue and remain available to the leader of our empire who with each passing year accumulates more of the powers of an emperor. (As someone tweeted at me last week, the Romans thought they were keeping themselves safe by torturing Jesus.) Law enforcement is not in conflict with "looking forward". It is only by preventing crimes that we can look forward to a world without them.

Deterring crimes is a key part of the reform process needed in Washington, but other systemic changes are needed as well, and new approaches to citizen engagement are needed to get us there. Imagining that the departure of Bush and Cheney moves us noticably in that direction is, I think, our own form of bad applism. Undoing the damage that they and those who went before them have done is a task that remains ahead of us. And envisioning and creating a structure of government that goes beyond undoing the damage to establish positive rights and benefits that others in the world enjoy or are seeking is a task that no one will lead us in other than ourselves.

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David Swanson is the author of the new book "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union" by Seven Stories Press. You can pre-order it and find out when tour will be in your town: http://davidswanson.org/book. Arrange to review it on your blog and Seven Stories will get you a free copy. Contact crystal at sevenstories dot com.