Greenwald: The significance of Obama's decision to release the torture memos

[ProSense]

Glenn Greenwald
Friday April 17, 2009 06:48 EDT

The significance of Obama's decision to release the torture memos

(updated below)

Numerous commentators are objecting to the idea that Barack Obama deserves credit for his release of the OLC torture memos yesterday in light of his accompanying pledge that CIA officials relying in good faith on those memos won't be prosecuted. Chris Floyd is one who articulates that objection quite well and, as is always true for Chris, his criticisms are well worth reading. Many others -- including Keith Olbermann, Jonathan Turley, John Dean and Bruce Fein -- yesterday lambasted Obama for his anti-prosecution stance. Since I gave substantial credit to Obama yesterday for the release of the memos and believe even more so today that he deserves it (despite finding the anti-prosecution case as corrupted and morally bankrupt as ever), I want to return to the issue of Obama's actions.

Purely as an analytical matter, releasing the OLC memos and advocating against prosecutions are two separate acts. It's perfectly coherent to praise one and condemn the other. There is an unhealthy tendency to want to make categorical, absolute judgments about the persona of politicians generally and Obama especially ("I like him"/"I don't like him"; "I trust him/I don't trust him") rather than case-by-case judgments about his specific acts. "Like" and "trust" are sentiments appropriate for one's friends and loved ones, not political leaders. A politician who does something horrible yesterday can do something praiseworthy tomorrow. Generally bad people can do good things (even if for ignoble reasons) and generally good people can do bad things. That's why I care little about motives, which I think, in any event, are impossible to know. Regardless of motives, good acts (releasing the torture memos) should be praised, and bad acts (arguing against prosecutions) should be condemned.

Beyond those generalities, I think the significance of Obama's decision to release those memos -- and the political courage it took -- shouldn't be minimized. There is no question that many key factions in the "intelligence community" were vehemently opposed to release of those memos. I have no doubt that reports that they waged a "war" to prevent release of these memos were absolutely true. The disgusting comments of former CIA Director Mike Hayden on MSNBC yesterday -- where he made clear that he simply does not believe in the right of citizens to know what their government does and that government crimes should be kept hidden-- is clearly what Obama was hearing from many powerful circles. That twisted anti-democratic mentality is the one that predominates in our political class.

In the United States, what Obama did yesterday is simply not done. American Presidents do not disseminate to the world documents which narrate in vivid, elaborate detail the dirty, illegal deeds done by the CIA, especially not when the actions are very recent, were approved and ordered by the President of the United States, and the CIA is aggressively demanding that the documents remain concealed and claiming that their release will harm national security. When is the last time a President did that?

more

[pnorman]

1. K & R, for later reading in detail!

n/t

pnorman

[ProSense]

2. This is one of the better pieces on the topic. n/t

[ProSense]

3. A hypothetical in response to another Greenwald piece: Eric Holder v. America's legal obligations

Glenn points out that under the relevant treaties (and under precedent dating back to Nuremberg), "an order from a superior officer or a public authority may not be invoked as a justification of torture." I'm well aware of this. And if this were a simple case of someone being ordered to do something illegal by a superior officer, I'd absolutely believe that prosecution was warranted. But it's not that simple. These CIA agents were not only ordered to do what they did, they were advised by the OLC--the ultimate arbiter of law within the executive branch--that what they were being ordered to do was not torture.

Let me offer a hypothetical. Suppose that the Supreme Court issued an opinion holding that a certain interrogation technique did not constitute torture within the meaning of the law and relevant treaties. In reliance on that opinion, a CIA official then orders an agent to use that technique. No matter how morally repugnant or poorly reasoned the Supreme Court opinion is, does anyone believe that the CIA agent should be prosecuted in this situation or that such a prosecution would ever result in a conviction?

The situation we're dealing with here is really not all that different than my hypothetical. In order for our national system of government to function properly, there has to be an ultimate arbiter of what the law is. The Supreme Court plays that role in our system. But the same is true of the executive branch. In order for it to work properly, there has to be a body within the executive branch that acts as the ultimate arbiter of what the law is, particularly given the gray areas of the law in which the intelligence agencies are always operating. Our intelligence agencies can't just go get advisory opinions from the Supreme Court. But they need clarity or they would never act. The OLC has traditionally played that role of ultimate arbiter within the executive branch. Which is why OLC attorneys have an enormous responsibility. Attorneys like John Yoo and Jay Bybee badly betrayed that responsibility.

So to summarize, my position is not that prosecuting CIA agents is somehow a bad idea politically (though it is). My position is that prosecutions directed at those who acted in accordance with specific OLC advice are not legally feasible and would ultimately be counterproductive. I think there should be a special prosecutor appointed to investigate and that if that prosecutor finds evidence of CIA agents who went beyond the scope of the OLC memos, they should be prosecuted. But I think that any investigation should focus primarily on the people who authorized the conduct in the first place.

link

Greenwald: Eric Holder v. America's legal obligations

[EFerrari]

4. Obama deserves credit for releasing those memos. n/t

[Kajsa]

5. This is very well written.

I especially like Update #2.

It nails it,

:D

[Aloha Spirit]

6. "the Jay Bybee of journalism," haha. That guy's gonna be famous. Like Elbridge "gerrymander"Gerry

We need to come up with a snazzy Bybee word.

[BelgianMadCow]

7. If and when this release provokes a shitstorm, it may well provide cover

for REALLY prosecuting those who gave the orders. Which is THE most important thing.

Until then, I'm with KO.

[ProSense]

8. Nope,

no protection for them. The debate is whether or not there is cover for those who carried out the orders.

[frazzled]

9. John Dean was not critical yesterday

My reading of his interview was that he felt prosecution would be legally difficult, citing Watergate precedents and generally trying to gloss over the prosecution issue in favor of the transparency angle. Did I hear a different interview than Glenn Greenwald?

[Cha]

12. That's what I remembered too..that

John Dean was not critical.

[Thrill]

10. As we saw last week. Commentators don't want to give him credit for anything good.

You know, just like when Clinton was President. Get use to it

[Cha]

11. As you know..and Thankfully Gloria Borger has stated

..if you can't allow when the President has done his job well then why believe them when they whine about anything else? I know she's practically drowned out by the chorus of idiots but this is an important point that needs to go viral.

Thrill (1000+ posts) Tue Apr-14-09 09:13 PM
Original message
Borger: Republicans Twittering away credibility
WASHINGTON (CNN) -- When presidents are new, first impressions really count: Your demeanor (shirtsleeves, not jackets, in the Oval Office), your stature (move over, Mr. Sarkozy) and, of course, your plans for America's future (not to mention your plans for our 401(k)s).

Since President Obama's presidential bid was a very long affair -- and since his predecessor left with a 28 percent approval rating -- he came into office with an advantage. Americans figured they knew him and they surely liked him better than the previous guy.

And they understood he was persistent: After all, he was the underdog who beat the once-presumptive nominee, Hillary Clinton. And, by the way, he also gave great speeches.

But new presidents are always tested, as Joe Biden famously predicted. But not just on one front, on all fronts. And Obama has had more than his share, as he likes to remind us -- an economic crisis that threatened to take down the economy; a North Korean nuclear warhead that soared into space.

And finally, the pirates of Somalia -- threatening an American crew -- hold an American captain hostage. A high-stakes, visible, compelling story, with inevitable winners and losers.

That's when you learn about a president.

The president played it cool -- in fact, pitch-perfect -- as it turns out. We now know that while he was saying little in public, he was completely engaged. He sent his secretary of state to warn the pirates publicly -- while the president privately held more than 17 briefings on the matter and made sure the bureaucrats at all agencies were working together (no small task).

And finally, he gave an unambiguous order -- to shoot if the captain's life was in peril.

And when it was all over, as a top administration official told me, Obama "didn't wrap himself around the bravery of those military seals."

Indeed, he commended the captain, the SEALs, called for multilateral efforts to stop piracy -- and went on the next day to give an economic speech. Indeed, this aide adds, "He's not about to put on a flight suit on an aircraft carrier and declare mission accomplished."

Not his style, they say.

But what about the style of say, Newt Gingrich? The former House Speaker -- often mentioned as a possible presidential contender in 2012 -- decided to Twitter his inner thoughts on the pirates in real-time.

Last Saturday: "Obama is making a major mistake in not forcefully outlining the rules of civilization for dealing with pirates. We look weak."

By Monday, after the safe rescue of the captain, Gingrich was, er, a tad more laudatory: "The Navy seals did exactly the right thing in rescuing the American captain. President Obama did the right thing in allowing the Navy to act."

A grudging kudo, if there ever was one.

Would it have been better if the president of the United States had publicly engaged with a bunch of teenage thug pirates? It's beneath Obama's pay grade and dignity -- not to mention how it would have added fuel to an already incendiary situation.

So how about just admitting that the administration performed admirably in this crisis?

"Here's the problem: If Republicans can't allow that the president did his job well in this unambiguous case, why should we believe their complaints about anything else? If they can't pat him on the back for this one, why should we even listen to their arguments about the budget, about health care, about energy?"

If Republicans want Americans to see their arguments as credible -- as they may well be -- they need to present themselves as the credible opposition.

http://www.cnn.com/2009/POLITICS/04/14/borger.republica...




http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x8343620#8343671

[tomp]

14. just like obama, dean can get some things right and not others. nt

[HamdenRice]

13. Very few DUers understand that there are independent "power centers". Obama can't snap his fingers

and make things happen. The pushback from rogue agencies like the NSA and CIA is dangerous not just to Obama's larger agenda, but to democracy itself.

It will take a chess game to get the republic back.

Giving some cover to the CIA operatives while leaving the leadership of Bush's rogue intelligence apparatus twisting in the wind is classic divide and conquer technique as well as just plain pragmatic.