"This chapter is over."

Peggy Noonan--lately of "just keep walking" fame--lays out the case for not prosecuting Bush war crimes:

Mr. Obama has had great and understandable difficulty in balancing competing claims regarding how to treat government information on prisoner abuse. The White House debated, decided to release Bush-era memos, then said they wouldn't allow anyone to be prosecuted, then said maybe they would. It was flat-footed, confusing. The only impressive Obama we saw on the question this week was the one described by "a senior White House official" in the Washington Post. He or she was quoted saying, of the internal administration debates, that the president was concerned that a 9/11-style commission "would ratchet the whole thing up," and "His whole thing is: I banned all this. This chapter is over. What we don't need now is to become a sort of feeding frenzy where we go back and relitigate this."

This misses the point. Of course, it's good that the Bush era of secret executive laws and illegal torture is over--but there remains no good reason to believe that such a chapter couldn't happen again. That is the whole purpose of investigating and prosecuting these crimes, beyond achieving simple justice: it would set a precedent that circumventing the Constitution and violating important US laws prohibiting torture results in going to jail. Obama can ban things and end chapters all he wants, but it's not going to stop a future President from "going to the dark side".

Moreover, and probably more importantly: the decision of whether to prosecute war crimes shouldn't even be a political decision, and certainly not a decision made by the President. The Bush years has acclimated everyone so much to the idea of a politicized, non-independent Department of Justice that we forget that all this is Eric Holder's call, not Obama's--and that it is, in fact, inappropriate for Obama to even weigh in with his opinion as forcefully as he has.

PS: As a sort of meta-comment on all this, an interesting thing to consider is this: suppose that Obama's intention actually is to prosecute war crimes to the full extent of the law. What would a good strategy be? Certainly, it would be to appear to be reluctant or even opposed to prosecuting them, so as to avoid giving the appearance of partisan retribution. Then Obama can stand aside as the process grinds forward, sympathetically throwing up his hands and saying "what can I do? The DoJ is independent and apolitical." This would give the whole process maximum legitimacy.

So my point is, even as I criticize Obama for his position on this issue, I also acknowledge that his actions underdetermine his true intent, and we will just have to see how things unfold--and keep pushing for prosecutions.

Harper's

On the flight to LA I switched things up a bit and picked up a copy of Harper's instead of the Economist (my usual airplane fare). It was okay: a little more literary than the sort of thing I'm used to reading. The increased creative freedom of the writers turned out to be a double-edged sword, because sometimes you'd come across a truly memorable "gag" (as Bertie would call it)--for example, noting that a gambler's eyes had the "watchful opacity" of a security camera--but other times I felt it was just providing rope for the author to hang himself with, as with the not-so-impressive "everybody making out like a bandit with his own designer neckerchief pulled over his nose". That sounds like what I imagine Adbusters is full of.

In any case, there was an interesting article by one Scott Horton that outlines the political dilemmas entailed by prosecuting Bush et al with warcrimes, and how such a process might be designed. Ultimately he recommends a "two-part solution", where an investigative commission is formed in such a way that it enjoys broad public support--and has robust fact-finding powers such as top-level security clearance and supoena power--but that does not have the power to prosecute. Instead, at the end of the investigation it would make a recommendation for a formal prosecution if the facts supported it. From there the government would be in a position to decide if it should appoint a special prosecutor to make a case in the federal courts.

Douthat, Greenwald, Torture

Ross Douthat, a (sane) conservative blogger at the Atlantic writes a searching, brutally honest post about his conflicted thoughts on the torture issue; and Glenn Greenwald proceeds to blow him out of the water. Says Greenwald:

I don't want to purport to summarize what he's written. It's a somewhat meandering and at times even internally inconsistent statement. Douthat himself characterizes it as "rambling" -- befitting someone who appears to think that his own lack of moral certainty and borderline-disorientation on this subject may somehow be a more intellectually respectable posture than those who simplistically express "straightforward outrage." In the midst of what is largely an intellectually honest attempt to describe the causes for his ambiguity, he actually does express some "straightforward outrage" of his own. About the widespread abuse, he writes: "it should be considered impermissible as well as immoral" and "should involve disgrace for those responsible, the Cheneys and Rumsfelds as well as the people who actually implemented the techniques that the Vice President's office promoted and the Secretary of Defense signed off on."

Nonetheless, Douthat repeatedly explains that he is burdened by "uncertainty, mixed together with guilt, about how strongly to condemn those involved," and one of the central reasons for that uncertainty -- one that is commonly expressed -- is contained in this passage:

But with great power comes a lot of pressures as well, starting with great fear: The fear that through inaction you'll be responsible for the deaths of thousands or even millions of the Americans whose lived you were personally charged to protect. This fear ran wild the post-9/11 Bush Administration, with often-appalling consequences, but it wasn't an irrational fear - not then, and now. It doesn't excuse what was done by our government, and in our name, in prisons and detention cells around the world. But anyone who felt the way I felt after 9/11 has to reckon with the fact that what was done in our name was, in some sense, done for us - not with our knowledge, exactly, but arguably with our blessing. I didn't get what I wanted from this administration, but I think you could say with some justification that I got what I asked for. And that awareness undergirds - to return to where I began this rambling post - the mix of anger, uncertainty and guilt that I bring to the current debate over what the Bush Administration has done and failed to do, and how its members should be judged.

This is the Jack Goldsmith argument: while what Bush officials did may have been misguided and wrong, they did it out of a true fear of Islamic enemies, with the intent to protect us, perhaps even consistent with the citizenry's wishes. And while Douthat presents this view as some sort of candid and conflicted complexity, it isn't really anything more than standard American exceptionalism -- more accurately: blinding American narcissism -- masquerading as a difficult moral struggle.

There is probably also some severe cognitive dissonace going on. Greenwald continues:

The moral ambiguity Douthat thinks he finds is applicable to virtually every war crime. It's the extremely rare political leader who ends up engaging in tyrannical acts, or commits war crimes or other atrocities, simply for the fun of it, or for purely frivolous reasons. Every tyrant can point to real and legitimate threats that they feared.

Ask supporters of Fidel Castro why he imprisoned dissidents and created a police state and they'll tell you -- accurately -- that he was the head of a small, defenseless island situated 90 miles to the South of a huge, militaristic superpower that repeatedly tried to overthrow his government and replace it with something it preferred. Ask Hugo Chavez why he rails against the U.S. and has shut down opposition media stations and he'll point out -- truthfully -- that the U.S. participated to some extent in a coup attempt to overthrow his democratically elected government and that internal factions inside Venezuela have done the same.

...

But none of those facts justify tyranny, terrorism or war crimes. There are virtually always "good reasons" that can be and are cited to justify war crimes and acts of aggression. It's often the case that nationalistic impulses -- or genuine fears -- lead the country's citizens to support or at least acquiesce to those crimes. War crimes and other atrocities are typically undertaken in defense against some real (if exaggerated) threat, or to target actual enemies, or to redress real grievances.

...

The laws of war aren't applicable only in times of peace, to be waived away in times of war or crisis. To the contrary, they exist precisely because the factors Douthat cites to explain and mitigate what our leaders did always exist, especially when countries perceive themselves at war. To cite those factors to explain away war crimes -- or to render them morally ambiguous -- is to deny the very validity of the concept itself.

Cowardice at the New York Times

The New York Times editorializes that "top officials" in the Bush administration should be investigated for their role in implementing a torture program, with the possibility of bringing charges--however, it somehow stops short of saying that Cheney and Bush should be held accountable as well:

Now, a bipartisan report by the Senate Armed Services Committee has made what 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.

The report shows how actions by these men “led directly” to what happened at Abu Ghraib, in Afghanistan, in Guantánamo Bay, Cuba, and in secret C.I.A. prisons.

It said these top officials, charged with defending the Constitution and America’s standing in the world, methodically introduced interrogation practices based on illegal tortures devised by Chinese agents during the Korean War.

It's all quite baffling. Why shouldn't Cheney and Bush be investigated along with Rumsfeld and other "top officials"? If the torture programs was somehow carried out without the knowledge or approval of the elected officials in charge, then an investigation should bear that out. And if the elected officials did approve the programs, then they should be held at least as accountable as their underlings, if not more so. It simply does not make sense to believe that we should consider bringing charges against officials as high ranking as the Secretary of Defense, and yet at the same time also believe that the President that Secretary served under should get a free pass.

Of course, the editorial doesn't explicitly state that Cheney and Bush should be exempt--but the omission is glaring. I imagine that there was quite a heated discussion amongst the editorial board about how high to set the target--whether it would be "top officials", or Rumsfeld, or all the way up to Bush. I imagine that they believed, in the end, that calling for the investigation of Bush and his possible arrest for war crimes would be going too far, banishing the paper to the "angry left" and polarizing a debate that can only succeeed if it remains unpolarized. Maybe they're right.

However, at the end of the day, the press isn't doing its job if it refuses to take risks in speaking truth to power when the stakes are highest. I understand that a newspaper can only be persuasive to a large number of people if it remains, by and large, comfortably within the mainstream. But what is the point of saving up all that "persuasion capital" if you don't spend it on something as important as holding an American president responsible for war crimes? Maybe Barack Obama cannot let himself be perceived as trying to take down the soon-to-be ex-President, but there is no reason why the New York Times should have any reticence.

By refusing to "go there", the NYT reinforces the conventional wisdom that to hold President Bush himself accountable for war crimes is outside the mainstream and not a view that Serious People hold. But this conventional wisdom will have to be overturned if America is to even begin to rectify the abuses that have been going on since September 11.

A silly city

It made national headlines--and the Daily Show--a few weeks ago: the Berkeley City Council passed a resolution stating that the US Marines and their recruiting center near campus were "uninvited" and "unwelcome" in the city, and even went so far as to grant a parking space in front of the recruitment center to Code Pink, which is an anti-war group that has been haranguing the Marines for months. There has since been a national outcry, persuading the City Counsel to reconsider its actions.

Of course, none of this made any sense to begin with. In the first place, the government should never be in the business of granting special legal privileges to one political faction at the expense of another. Free speech entitles all players in the marketplace of ideas to present their argument to the community without government interference. What the Berkeley City Counsel is doing is selectively curtailing this freedom for those they disagree with (the US Marine Corps) by granting to their political opponents special powers of harassment (a special parking spot for Code Pink right in front of the recruitment center).

The second reason none of this made sense is because the US Marine Corps itself is an unlikely target of derision for anyone who opposes the Iraq War. President Bush and a complacent Congress made the decision to invade Iraq, not the Marines.

And before you accuse me of invoking the Nuremberg defense--i.e., of claiming that the Marines are not responsible for the war because they "are just following orders"--let me just preempt it by saying that, in my view, such a critique is not applicable in this case. This kind of defense of a soldier's actions only fails in extreme cases where the soldier is ordered to carry out atrocities or war crimes. In such cases, the soldier is being ordered to do something that is considered to be so categorically wrong that it cannot possibly be justified. Since there is no question that the order is unjustified, the soldier is obligated to refuse to carry it out. However, most orders require that the soldier do something that may or may not be justified, depending on the circumstances. For example, the soldier may be asked to invade a sovereign nation (unless you are hopelessly pacifist, you will agree that this is sometimes justified). But the principle of civilian control of the military demands that the soldier leave the political question of whether the orders are justified to the civilians in charge. For soldiers to act otherwise would be for them to assume a veto power over the civilian authorities that is inconsistent with the principle of civilian control of the military.

It is undoubtedly possible that the invasion of a sovereign country like Iraq could be completely justified; whether or not it actually is justified is an open political question to be debated and resolved by elected politicians. If soldiers are to defer to the democratic process, then they have no choice but to "just follow orders", regardless of their political opinions. The only time that those soldiers should refuse to follow orders is when those orders could not possibly be justified, as in the case of genocide and other war crimes and atrocities.

The Berkeley City Council and Code Pink seem to think that soldiers bear responsibility--and should shoulder the blame--for any unjustified action they are ordered to do. But this is unfair, because the only way for the soldiers to absolve themselves of this would be for them to sacrifice the principle of military subservience to the civilian government. And I don't think anyone wants them to do that.