Before I went on vacation, I wrote a brief post about Stu Taylor’s recent mini-campaign to get pardons for everyone involved in violating the Geneva Conventions and authorizing torture and other war crimes against defenseless military prisoners since 9/11. After reading "The Dark Side," my disbelief at Stu’s naivete with respect to those responsible has only intensified. Let’s take the simple example of Dick Cheney. Here’s Taylor’s bottom line:
"There is no evidence that any high-level official acted with criminal intent… Until mid-2006, the OLC also advised that interrogators could ignore the 1949 Geneva Conventions’ far more sweeping ban on all "cruel" and "humiliating and degrading" treatment of prisoners. The lawyers found, and Bush declared, that Geneva did not protect stateless terrorists, such as members of Al Qaeda. Then five Supreme Court justices gave the administration a nasty surprise."
This argument depends on the notion that a man like Cheney, with all his experience and knowledge, a former defense secretary, a man steeped in the ways of Washington and national security, and his legal henchman David Addington, genuinely had no idea that Geneva Common Article 3 clearly forbids the techniques they were intent on using. It also requires us to believe that the legal judgments of the OLC – divorced from the usual procedures and consultation process, staffed by hacks told to produce legal defenses for plain illegality, shrouded in so much secrecy even the secretary of state, attorney general and national security adviser were kept in the dark – were open-minded attempts to interpret the law. None of this even faintly passes the sniff test.
In fact the entire narrative of the torture regime makes no sense at all unless you assume that the president and vice-president understood beyond any shadow of a doubt they were violating the law, and had such contempt for the law that they simply instructed lawyers to interpret it in ways that are, in retrospect, preposterous, as even a radical advocate of executive power, Jack Goldsmith, immediately recognized. And then, using this obscure argument, simply lied to the American people about what they were doing.
Why else Yoo’s cockamamie assertions of presidential authority to violate all laws and ignore all treaties? Why else the fantastic secrecy and bureaucratic end-runs? Why else the cover-ups – like actual destruction of critical evidence of torture like the waterboarding tapes? Why else the ludicrous euphemisms?
And Cheney, to his credit, I suppose, proudly declared his intent to go where no previous administration had ever gone. On the Sunday after the attacks he blurted out the following immortal words:
"We’ll have to work sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done will have to be done quietly, wihout any discussion, using sources and methods that are available to our intelligence agencies – if we are going to be successful. That’s the world these folks operate in. And, uh, so it’s vital for us to use any means at our disposal basically to achieve our objectives."
Cheney all but told us, if we had only been able to hear him at the time, that he was going off the legal grid, off any zone of public accountability, able to deploy "any means at our disposal" to do what he believed had to be done. Now, you may want to defend this act of radical executive power as a necessary, temporary breach in the aftermath of 9/11, but you cannot, I think, credibly argue that Cheney was unaware of what he was doing. Or that he insisted on retaining this kind of illegality and torture long after the immediate crisis passed. As late as 2005, Cheney was getting Bybee to write legal memos for any combination of any number of torture techniques, long categorically recognized as such by everyone in the field. From a former CIA official in Mayer’s book: "They were torturing people. No question. They did disgusting things to people. Their attitude was, ‘Laws? like who the fuck cares?’"
When you have the highest officials in a constitutional democracy with that view of the world, and with the appalling human rights record of these people, the case for war crime prosecutions is overwhelming – if we are to uphold the basic rule of law. Remember that?
We impeached a president for perjury in a civil lawsuit. We’re going to proactively pardon a president who authorized torture?
The Dish 