Tuesday, August 11, 2009

Criminal investigation into CIA treatment of detainees expected.

Something utterly bizarre is about to take place, according to the LA Times.

U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects, current and former U.S. government officials said.

A senior Justice Department official said that Holder envisioned an inquiry that would be narrow in scope, focusing on "whether people went beyond the techniques that were authorized" in Bush administration memos that liberally interpreted anti-torture laws.
In other words, Holder is about to accept that the Yoo memos were, to all intents and purposes, legal; and he is going to prosecute those who went beyond what those foul memos allowed.
Other potentially criminal abuses have already come to light, including the waterboarding of prisoners in excess of Justice Department guidelines, and the deaths of detainees in CIA custody in Afghanistan and Iraq in 2002 and 2003.
So, Holder is going to prosecute someone for using too much water, rather than prosecuting the people who ordered the waterboarding in the first place.

It's Abu Ghraib all over again, where we prosecute those who show too much zeal when carrying out the policies, rather than prosecute the people who said that these policies - which are clearly illegal - were permissible.
Obama and Holder have both said that they believe waterboarding constitutes torture. But an investigation would pose thorny political problems for the administration, and probably draw criticism over questions of fairness.

"An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all," said Tom Malinowski, Washington advocacy director for Human Rights Watch.
I am with Malinowski, it would be better to do nothing than to prosecute merely the grunts on the ground who got carried away.

The criminals in this case are the people who ordered that the gloves be removed and that the US stop pussyfooting around. We all know who they are as they have publicly confessed to their crimes. Bush and Cheney are on record authorising waterboarding. David Addington, Jay Bybee and John Yoo are known to be amongst the architects of this cruel US policy.

The notion, pushed by some on the right, that a low level employee such as Yoo can declare waterboarding legal and that this somehow removes the criminality of anyone who then orders such a crime is ludicrous.

But my main problem with Holder's suggestion is this: if you prosecute someone who waterboards outside of Yoo's guidelines, aren't you establishing, under law, that waterboarding itself is actually legal?

That would place the US in a unique position in that regard. A country who has signed the UN Convention Against Torture and yet states that waterboarding is an acceptable practice.

I am with Andrew Sullivan when he states that this is "the very very worst of all possible worlds":

This strikes me as the very very worst of all possible worlds - the kind of split-the-difference pragmatism that will end up alienating everyone. It is vital that the Obama administration does nothing to imply that what was authorized within the rules under the Cheney torture program is in any way legal, defensible or moral.

Obama has ended the torture - and in this subsequent six months, we have seen real progress against al Qaeda.

But if the Obama administration does not investigate those really responsible for war crimes, and scapegoats a few sadists down the line instead, then they risk retroactively justifying the crimes they ran against.

If this LA Times story is true, then Holder is about to enrage both his enemies and his friends.

The right will explode in indignation and the left will not be there to defend him as they will, correctly, state that he is prosecuting the wrong people.

It is, literally, the worst of all worlds. It would be better to prosecute nobody than to do this.

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