Glenn Greenwald: Why a war crimes fact-finding commission could uniquely enable prosecutions

[babylonsister]

Glenn Greenwald
Wednesday Feb. 25, 2009 10:08 EST
Why a war crimes fact-finding commission could uniquely enable prosecutions

(updated below)

When Senate Judiciary Committee Chairman Pat Leahy announced a couple of weeks ago that he intends to introduce legislation to create a "Truth Commission" to investigate Bush war crimes, it seemed to be the type of meaningless announcement for which Senate Democrats generally and Leahy specifically are known: nicely symbolic and pseudo-principled but ultimately entirely inconsequential (Leahy explicitly said he opposes prosecutions no matter how egregious is the evidence of massive criminality on the part of the Bush administration -- i.e., the functional equivalent of a pardon for all Bush officials, gift-wrapped by Democrats like Leahy). But now, Salon's Mark Benjamin (who, just by the way, has a history of some truly great reporting over the last few years) reports facts that suggest the Commission might actually be more serious than that -- and that's true largely for one reason: Sheldon Whitehouse.

Leahy told Benjamin that the Senate Judiciary Committee is set to hold a hearing very shortly on the best way to structure the investigative body, and that they intend to announce that as early as today. More significantly, Whitehouse all but assured Benjamin that there would be a Commission created by the Congress to investigate these war crimes and used what the Beltway considers to be "shrill" language when describing its significance:

Still, regarding a potential torture commission, he told Salon, "I am convinced it is going to happen." In fact, his fervor on the issue was palpable. When asked if there is a lot the public still does not know about these issues during the Bush administration, his eyes grew large and he nodded slowly. "Stay on this," he said. "This is going to be big."

Perhaps the most important fact reported by Benjamin was that it is Whitehouse who would "spearhead" the effort. Whitehouse is on both the Senate Intelligence and Judiciary Committees and thus knows more about these activities than has been made public. Critically, he is also a former federal and state prosecutor and thus instinctively considers lawbreaking to be wrong no matter who is doing the lawbreaking . His genuine passion to investigate these crimes is reflected in several speeches he has given demanding that these crimes not be "papered over."

At least equally encouraging is Whitehouse's recognition that Congress has the obligation to investigate these crimes regardless of whether Barack Obama wants to do so or is able (in light of the financial crisis) to spend time on this, and regardless of whether Obama approves or disapproves:

Whitehouse admitted he had not discussed the plan yet with President Obama, who has been notably wishy-washy on the notion since taking office. . . .

According to Whitehouse, current politics dictate that Congress should take the lead on establishing a torture commission. "When you look at the economic meltdown that was left by the Bush administration, you can see why he would want to reassure the American public that he is out there looking at these problems and trying to solve them and not focusing on the sins of the past," he said.

Whitehouse, however, predicted that Obama would not object to a torture commission moving forward in Congress. Besides, he said, "When push comes to shove, we are the legislative branch of government. We have oversight responsibilities. And we don't need the executive branch's approval to look into these things just as a constitutional matter."

A re-establishment of an independent Congress that operates separate from, as a check on, and at times adversarially to the executive branch is at least as important as any other single political priority. Whether Senate Democrats would really proceed with a meaningful investigation even in the wake of emphatic White House opposition remains to be seen (as does the question of whether the White House would object), but at least Whitehouse is sounding the right notes here.

more...

http://www.salon.com/opinion/greenwald/2009/02/25/prosecutions/

[Ichingcarpenter]

1. I caught the last part of Whitehouse's speech today on CSPAN

on the Senate Floor this morning.


He's gonna go after them and prosecute. I hope the speech is up on DU today.
I'm glad Greenwald sees some postive light out of this

[jtrockville]

2. Greenwald has links to the text and video of Whitehouse's speech

At the bottom of the article, "Update II".

[Supersedeas]

3. i'll have to check that out

[Peace Patriot]

4. I think Sen. Whitehouse is sincere and that a strong investigation of Bushwhack crimes

would be very good for the country, regardless of whether or not the Obama administration pursues prosecution. A thorough investigation, with as much publicity as possible, is one of the few ways--besides getting rid of the 'TRADE SECRET' voting machines--that we, the people, can help to insure that the Bushwhacks' massive crime spree doesn't occur again. While our own party wimped out on impeaching Reagan for his illegal war on Nicaragua, the Iran-Contra hearings in Congress did help curtail illegal, presidential war for a period of time, as well as helping to end U.S. complicity in a number of "dirty wars" in Latin America.

I'm all for investigation, openness, information to the people about what their government has done, a voice for the victims, and warning to our political leaders that they will at least risk exposure when they commit crimes. It is something of a deterrent, and a step toward justice.

The issue of prosecution is separate. The investigation can do as much as possible to identify crimes and perps--and can also aid potential prosecutors by being careful on matters such as immunity, the preservation of evidence, etc. But Congress has no executive power to prosecute, except as an impeachment body for current members of the other two branches of government (and for its own members). Impeachment can mean removal from office, not jail (unless the impeached official is pursued by the executive branch for crimes that are exposed in the impeachment process). So that issue is moot, as far as Bushwhack officials are involved. (It could conceivably be relevant to Bushwhack plants in different agencies, or to held-over appointments, such as that of Asst Sec of State for the Western Hemisphere Thomas Shannon, whom I think may be entangled in some very dirty Bushwhack business in South America.)

The apparent immunity that has been given to George Bush, Dick Cheney, Donald Rumsfeld and other principles of the Bushwhack crime spree, by someone, or some group, we know not whom, is not a matter that Senator Whitehouse or Congressman Conyers can address, obviously. (Obvious to me, anyway.) It's too big. It is outside of their sphere of power. And (I think) they would have no power--they wouldn't even be in office--if they were too defiant toward whoever is really pulling the strings. I frankly think that there was a counter-coup, within our government, to get Bush, Cheney and Rumsfeld out, and probably to prevent their nuking of Iran. I think the timeframe is circa late 2006. And this is where Pelosi's strange announcement that "impeachment is off the table" came from--this counter-coup action. (Off what table, Nancy?!)

This is actually a more serious matter--or rather a deeper, more fundamental matter, as to our democracy and its long term prospects. Who is running this country? Who is responsible for Bush running around freely, off to Europe now to give $150,000 a pop speeches. (Gotta laugh at that--didn't Reagan get $2 million a pop?) Who is behind Cheney, Rumsfeld, Rove and others getting off scott free--and, no little matter, with plenty of wherewithal (billions of our tax dollars and other money bilked from us and others; private armies created at our expense, etc.) to cause further trouble here and abroad?

I think the key is somehow Leon Panetta. And I have to laugh at people thinking he is a civilian. No way, friends. (Did you notice, when DiFi opened her mouth and criticized that appointment because of his "inexperience," how quickly she shut up, and how quickly that issue just went away? Pay attention, folks.) It may be a 'white hat' group within our secret government--likely working with Daddy Bush whose motive was to save Jr.--who got Bush/Cheney to agree to leave peacefully when the time came, and who engineered Rumfeld's ouster, and who spared the world from nuclear war in the Middle East--and thus preserved the remnants of our democracy that we see now, but this was not a pro-democracy action. It was more in the vein of preserving the status quo.

The origins of our situation go way back to 1963 and the CIA assassination of a sitting president, JFK, for his backchannels to Krushchev and Castro, and intention to END the "Cold War," and all of the CIA's proxy wars with the Soviet Union, way back then.* Also, their probable assassinations of RFK and MLK for similar reasons. To untangle where we are now, we have to start with then--with the reasons for those assassinations, covered up all these years. We have not really been a democracy since that time. In the war between JFK--who vowed, after the CIA's "Bay of Pigs" invasion of Cuba, to "smash the CIA into a thousand pieces"--the CIA won, and it was JFK's skull that was smashed into a thousand pieces. The civilian government lost. And we have been ruled by this secret government ever since.

Clearly, there has been a war within this secret government. Some of the visible aspects of it were items like the outing of Valerie Plame and the CIA's counter-proliferation network (the Brewster-Jennings network), and Rumsfeld's creation of the "Office of Special Plans"--a separate intelligence shop within the Pentagon, to circumvent the professionals at the CIA who opposed the war on Iraq (and perhaps opposed other Rumsfeld methods and projects).

We need to deal with this--or not deal with it, settle for the illusion of democracy. It is a lot to deal with. It is not an easy thing to face. And probably we won't deal with it, as a people. It will all simply disappear beneath the surface of things once again, and we will limp along in our Roman Empire decline, to our Roman Empire fall. Do we want a democracy? Or are we willing to settle for 'white hat' groups 'fixing things' for us, temporarily, and certainly not in our financial interest?

Democracy is a great idea, you know--one of the greatest ideas in human history--that, by equality and equal opportunity, and free speech and all the rest--the best wisdom, the best leaders, and the best ideas for the common good rise to the top. But if democracy is distorted--say, as it was with slavery then segregation--it doesn't work as well. All the talent and ideas of a class of people are excluded from the pool of available wisdom. And if democracy is distorted even more--as it is now--with a very top-heavy albatross of the super-rich and multinational corporate CEOs blockading openness and preventing masses of people (workers, the poor) from truly participating in government, and cement their power by secret means (our secret government, now reinforced with private, rightwing corporate 'TRADE SECRET' voting machines), then you end up with a leader like Barack Obama, who, talented, intelligent and well-intentioned though he is, cannot really serve the common good very well, neither by prosecuting the Bushwhacks for their many and dreadful crimes, nor by wielding the "big stick" that is so desperately needed to whack our corporate rulers upside the head--dismantle their corporate monstrosities, shut down their goddamn stock market, insurance scams and all the rest, defend our manufacturing capability, tax them through the nose, and so on.

We need a leader who says, with FDR, "Organized money hates me--and I welcome their hatred!" And we don't have it, because no such leader could survive the vetting of our secret government, which serves the rich and the multinationals.

I tend to think that the 'TRADE SECRET' voting machines are the key to peeling back the power of the people and entities who are really running things. It is not the whole problem, but it is an essential first step. I do think Obama was actually elected--don't know for sure, our voting system is so non-transparent, but it's probably true. And I'm also pretty sure that his mandate was significantly and fraudulently shaved, to curtail serious reform. And my guess is that about half of Congress, including some "Blue Dogs," were not elected--they were Diebolded into power. Money is also, of course, a big factor--it excludes the poor and even the middle class, and even the upper middle class, from running for office, without becoming beholden to "organized money" from the get-go. So, the best thing we could do to support more serious reform--if that is Obama's intent (or, like FDR, becomes his intent, after he takes a good look at things)--is to insure that we can re-elect him. Right now, we can't. The voting system is out of public control. It is nearly 100% non-transparent and privately run.

In sum, if you want Bush, Cheney, Rumsfeld and that lot of criminals in jail...

THROW DIEBOLD & ALL 'TRADE SECRET' CODE VOTING MACHINES INTO 'BOSTON HARBOR' NOW!

Essential first step.

-------

*(Recommended essential reading: James Douglass' new book, "JFK and the Unspeakable: Why He Died and Why It Matters.")

[seemslikeadream]

5. I love reading EVERYTHING you write

:hi:

[clear eye]

7. First time I've ever disagreed w/ a post of yours, Peace Patriot

Actually, most of the time you're writing about matters that you're much more informed on than I, so I just gratefully read and learn. This time though, I have to remind you that the South African "Truth and Reconciliation" hearings were carried out under threat of prosecution of all those who didn't 'fess up. And since their new gov't had plenty of testimony from citizens who were wronged by the old regime, it was a totally credible threat. So, yes Sen. Whitehouse is probably sincere (the more I hear from him, the more I like him), and an airing of the Bush regime's dirty laundry is just what the doctor ordered, but it simply won't happen w/o threat of prosecution. Why should the criminals talk, otherwise? The lobbyists and Republican party bosses they want to work for, or neo-con think tanks they want to get book deals from, etc. would look askance. Anyone talking would leave others vulnerable legally even if they were given immunity, because the investigative leads that would be revealed could be used to bring charges against them for matters they didn't testify to. I'm sure they would all unite to say nothing and the hearings would be underwhelming, to say the least.

[Peace Patriot]

9. I see your point. But I didn't say they (Congress? Obama?) couldn't threaten prosecution--

I said that the principles are NOT going to be prosecuted--not in the U.S. anyway. That's what I think The Deal was.

But IF such a deal occurred, one question I have is, WHO was immunized? Just the top tier? The top tier and one rung down (say, including Rove)? Just the top tier and anyone they name in the future (giving them power to intimidate)?

If all the worker bees were NOT immunized (not included in the deal), then they can truly be threatened with prosecution if they don't tell all.

I think the dilemma that our Democrats are in, is that, IF such a deal was made, how can they have a "T & R" process that does not point to the people they immunized? And what are they going to do then? Say, yes, underlings should be held accountable, but not their bosses? (How is that the "American way"?).

I agree with your point that potential prosecution is the most important tool for getting people to testify truthfully. IF the deal that I suspect was made with the principles actually occurred, they have NO incentive to testify, and will never testify.

That is why I'm wondering if Pelosi is being hypocritical. Does she know that the principles were immunized? And if she does, then she's just playing games, saying that "prosecution" is now "on the table." Prosecution for the underlings (which they have to believe is possible, to get truthful testimony), but not for "the deciders."

One other thing that points to The Deal is the way Rove is behaving--as if he were a foreign government with the right and the power to defy Congress. And he is behaving this way without Bush as president protecting him. I have never seen such a thing in my lifetime, and I think it is without precedent in U.S. history. An ordinary citizen--no longer any kind of official status--saying he will NOT answer a Congressional subpoena, and then getting kowtowed to by the Obama White House, with "negotiations" with this man, as to what terms HE will agree to, to testify!? This is outrageous. Who the hell does he think he is?! Well, he may be part of the immunity deal, and knows full well that they can't touch him. That would explain it.

[clear eye]

10. Hmm. It's a lot to think about.

That Rove thing is just gut-wrenching, isn't it? Future generations won't know what to make of the Dems in Congress and the Obama administration on this one. Especially if they have to fight the same battle all over again because of the absence of enforced accountability going on now.

[chill_wind]

11. Few other observers seem to be trying to devine the meaning of Panetta's appt

and his real intentions, despite the fact that his statements around confirmation time were laden with ambiguous loophole-ish language, contradictions, and at least one flat out "official policy statement" about prosecutions for past activity within the agency ("no witch hunts"), which even if he believes to be assured, makes me wonder how he thought he could say that officially to the msm, as if speaking for Obama's DOJ. Unless he was told he COULD say that for fact. I took it mainly as a signal to calm the middle management and rank and filers that he wasn't coming in as a zealous reformer-- no need for a revolt, boys. The tools and protections are still in place, to be tweaked. We'll just adjust some of the liability with better new stated policy and keep it cleaner in appearances, if not deed, going forward.

(I did read that many of the rank and file operatives and officers suited up with legal insurance several years ago-- an acknowlegement of their own doubts about the immunity of their deeds):

Worried CIA Officers Buy Legal Insurance
Plans Fund Defense In Anti-Terror Cases

By R. Jeffrey Smith
Washington Post Staff Writer
Monday, September 11, 2006; A01

CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program.

http://www.washingtonpost.com/wp-dyn/content/article/2006/09/10/AR2006091001286_pf.html

You raise interesting angles and possibilities. An excellent set of posts full of intriguing questions.

[Gregorian]

6. Whitehouse gets my attention. This commission has been like a ping-pong match.

I've seen back and forth so much it's dizzying.

Now we're beginning to see some daylight. This is serious action.

Damn! I almost feel optimistic.

It's the biggest crime in American history, and the toughest criminals. They must be working overtime to ensure that they get this right. It must be very difficult.

[OhioChick]

8. K&R

:kick:

[chill_wind]

12. kick