17 December 2008


Where's the outrage?

Having most likely irritated my literary readers with my political/legal posts, I wanted to follow up a thread I began almost from the beginning regarding the potential war crimes and crimes against humanity committed by the current American administration. First, here's an excerpt from a recent interview with the Vice President of the United States conducted by Jonathan Karl of ABC News:

Some key points: After WWII, at the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials, conducted by the U.S. and its victorious allies, Japanese soldiers were convicted of war crimes for the specific act of what we now refer to as 'waterboarding'. It was a crime then, when it was committed against members of our military, despite the claims of protecting the homeland, and it's a crime now. Recall, the Doolittle Raid was a direct assault by Americans on Japan.

I cannot begin to tell you the number of slippery quasi-excuses the VP just gave to justify this illegal act. Let's throw out the defense that waterboarding has prevented any further attacks on the homeland. This is the classic 'ends justifying the means' argument. In point of fact, they don't. But the claim itself is specious—it is only on the basis of Mr. Cheney's say-so that the cause-effect connection between the two is asserted. This is the most secretive administration we've ever had. The VP's office employs truckloads of shredders to keep documentation of its actions from ever seeing the light of day. We have no way of knowing whether anything that we (America) did prevented another attack, or whether, for example, the bad guys are just laying low and planning something else. In fact, there seems to be specific evidence to the contrary presented in this article in this month's Vanity Fair. Notwithstanding, success is not a legal justification

Cheney claims: "On the question of so-called torture, we don't do torture. We never have. It's not something that this administration subscribes to. Again, we proceeded very cautiously. We checked. We had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross."

Try this on for size: I go into a bank, hold it up with a gun, take the money and run. Then I get my highly-paid lawyer to write an opinion, a "Memo to File," stating this is not armed robbery. After I get caught and charged with armed robbery, I produce my memo and claim I don't do "so-called armed robbery." Does my claim have any legitimacy? No. A crime is a crime, whether I know it or not, whether I admit it or not—no matter what you call it. I can't redefine criminal behavior and have it be legal. A semantic distinction doesn't negate a legal concept. This is classic CEO-think: 'I want to do something. Have the lawyers draw me up a memo telling me that I can get away with it. What? They say it's illegal. Fuck them! Fire them all and get me some other hired guns who will.' As a litigator, I saw this maneuver so many times it was laughable—a CYA ('Cover Your Ass') memo is often a tacit admission; you just have to look deeply enough. An opinion from an in-the-bag, toadying flunky in the Office of Legal Counsel of your own corrupt Justice Department (the department this self-proclaimed 'CEO Administration' used as its corporate counsel) is not a "Get out of jail free!" card. Torture is torture, no matter what John Yoo, or even Alberto Gonzales, says.

Cheney further asserts: "And I think those who allege that we've been involved in torture, or that somehow we violated the Constitution or laws with the terrorist surveillance program, simply don't know what they're talking about." How could we? You've tried to destroy all the evidence.

The fact is, the man admitted to war crimes in this interview: he admits he was aware of and supported and authorized the use of a method that has been defined by U.S. and international war crimes tribunals as torture: "I was aware of the program, certainly, and involved in helping get the process cleared, as the agency in effect came in and wanted to know what they could and couldn't do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it."

This interview, against interest and in no stretch of the imagination under duress, should be Exhibit A at his war crimes trial.

His argument in support of unconstitutional surveillance against Americans is much more subtle and is the sort of thing a CEO would use to justify something he'd been caught at red-handed. It is often referred to as 'remediation'. That is, getting a subsequent justification for something done illegally and asserting that the justification applied retroactively. FISA, whether or not it is constitutional in whole or in part, cannot retroactively justify this administration's illegal actions. Let's say an automobile company discovers the brakes in one of its cars are causing deaths in its purchasers. So, without telling anyone, it fixes the problem in subsequent models. In a subsequent lawsuit, the company can claim there is no evidence its brakes are causing deaths. It's true, but only because it is in the present tense. If investigators then discover the fix, the prosecutors can show the company had guilty knowledge of the problem and undertook to remediate it—which effectively served as a cover-up. It is a tacit admission against interest of its guilt.

Cheney tries to make the point that these tactics are essential and specifically tailored to deal with specific threats. This is mere political rhetoric, without any shred of supporting evidence: the bald assertion of a known, compulsive liar.

Yet, all this begs the question: why did VP Cheney make these statements? Well, either he has balls the size of Wyoming and is thumbing his nose at the American people and the entire legal system (domestic and international) and the incoming Congress and Administration or he's deluded. He seems to be saying: 'so what?' And to quote Nabokov from my previous post (in another context) there's no rational response to 'so what?' He must believe there is insufficient political will to bring him down by forcing a trial on these issues. He may think there is no jurisdiction or forum where these claims can be successfully heard, much less prosecuted. He may feel there is no one who has standing or political clout to bring these claims, certainly not KSM. Or else he might well believe his actions were heroic and patriotic and, thus, justifiable and above reproach: "It's not illegal when the [Vice] President does it."

Either way, it is a sad day for this country and, indeed, for humanity.

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