Rhetoric and Reality
Glennzilla did a nice job of summarizing this general dynamic today, but I wanted to make one specific point.
In his speech today, the President suggested that existing structures could deal with investigations and even proseuctions of those who violated law during the Bush Administration's torture regime. He means Congressional inquiries rather than an independent commission, and Justice Department prosecutions rather than through an indepedent or special counsel.
I know that these debates lead directly to a call for a fuller accounting, perhaps through an Independent Commission.
I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.
A fine collection of words. But in his meeting with civil liberties and human rights groups yesterday, Obama suggested that he - not the Attorney General - would not allow such prosecutions to take place.
On at least one issue, though, Obama seems to have made up his mind. Isikoff reports that Obama announced his opposition to torture prosecutions--an unsurprising admission, perhaps, but one that must have disappointed many in attendance. Previously he had said that the question of investigation and prosecuting Bush administration officials was one for Holder to answer. But with Holder sitting right beside him, there's no doubt he's feeling pressure to, as they say, look forward, not backward.
So in public, the President gave a pretty speech about upholding the rule of law, but inside the White House, he vows not to uphold it, to do precisely the opposite of what he claims to believe makes us "who we are as a people." In fact, it does violence to the rule of law for the President to even decide who does and does not get prosecuted, as that is nowhere near within his jurisdiction. And as each new revelation about criminal activity committed at the highest levels comes out, the hollowness of Obama's rhetoric becomes more and more clear:
One source with knowledge of Zubaydah's interrogations agreed to describe the legal guidance process, on the condition of anonymity.
The source says nearly every day, (a contractor named James) Mitchell would sit at his computer and write a top-secret cable to the CIA's counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration's legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.
A new document is consistent with the source's account.
The CIA sent the ACLU a spreadsheet late Tuesday as part of a lawsuit under the Freedom of Information Act. The log shows the number of top-secret cables that went from Zubaydah's black site prison to CIA headquarters each day. Through the spring and summer of 2002, the log shows, someone sent headquarters several cables a day.
"At the very least, it's clear that CIA headquarters was choreographing what was going on at the black site," says Jameel Jaffer, the ACLU lawyer who sued to get the document. "But there's still this question about the relationship between CIA headquarters and the White House and the Justice Department and the question of which senior officials were driving this process."
This happened BEFORE the Office of Legal Counsel authorized torture through the Bybee/Yoo memos, and at a time when Gonzales was not in the Justice Department or involved in the workings of the CIA or any other federal agency. He was the President's lawyer and speaking, presumably, for the President. Directly from the White House. Directing and approving torture without legal opinions. I agree with the groups seeking disbarment of the lawyers involved with twisting the law to justify the Bush torture program, and apparently, the first lawyer involved in doing this was Alberto Gonzales.
But the President of the United States would rather issue a blanket directive that actions like this - the lawyer to the President sitting down and cabling approval of torture tactics against a prisoner on a daily basis - should face no accountability whatsoever. Making the rhetorical flourish in the National Archives today very difficult to take seriously.
UPDATE: David Waldman was at the meeting, and he says on the point of investigations and prosecutions, Isikoff's reporting is wrong. Duly noted.