Thoughts on the torchar thing

[dvandom]

Just to get the "obvious" out of the way first: I think torture is ethically indefensible and practically useless. In other words, it's evil and it doesn't do the job anyway. Unless the job is "make everyone hate you," in which case it works a treat.

Now, Obama has stepped into a no-win situation regarding the horrible ethical mess left to him by Bush, and he's had to decide which battles he's willing to fight and which ones are just the equivalent of sticking his hand in a blender while it's on...some people might find it fun or important, but it tends to be painful and ineffective.

Obama can't go after the miscreants really responsible for things without spending more political capital than he's willing to. The previous administration fostered (with the willing support of media outlets on both sides) an atmosphere of absolutism, us vs. them, and the closing of ranks in a manner reminiscent of stereotypical corrupt policemen in bad crime movies. It doesn't matter how obvious it is that the Bush administration did heinous things, too many of his "us" will close ranks against "them" and make sure that any attempt to bring the upper echelons to justice will be bogged down for years or even decades, at the cost of also not getting anything ELSE done. The climate isn't right for anyone to admit they hitched their wagon to a monster, especially since some of the people theoretically on Obama's own side have similar wagon-related issues in their voting record. And enough people who know they'd go to jail for a very long time are willing to lie through their teeth and sow misinformation and distrust to keep the honest-but-misled (well, relatively honest) politicians from supporting any attempt to put the real crooks behind bars.

So, the head of the serpent is pretty well defended by an armor of fear, ignorance and pride. As it usually is, unfortunately...it tends to take the actions of an external political entity to actually bring corrupt leadership to justice within a generation of the crimes. Otherwise, you have to wait until everyone who was in a position of power at the time to die or retire before someone can make a motion to indict stick.

The real problem Obama's run into this week is his statement that he won't be going after the coils of the serpent either. That people who were Just Following Orders won't be prosecuted. Thing is, it's not as simple as that.

Y'see, while they were busy with other high crimes and misdemeanors, the people high up in the Bush Administration pushed through a lot of legislation that gave them a legal figleaf for various actions, including torture. A 2006 law essentially lets the President define what is and isn't torture, to pick out the one relevant to this issue.

It's a bad law. It may be an unConstitutional law. It's certainly in contravention of treaties previously signed by the United States. But it existed at the time, so no one involved in torture was being given an unlawful order. They were being told to (or given permission to) do things that were legally defined to them as not torture.

Of course, it's only a figleaf. You'd have to be deranged to NOT think waterboarding is torture after you've DONE it once or twice. Even seeing it at the remove of video in a staged demonstration as I have, it's pretty obviously torture.

But the problem is, we have some competing principles in play now. On the one hand, you have people who went along with torturing captives, with the thin excuse that the President said it was okay. On the other hand, you have the ideal (if not the legally binding specific instance) of avoiding ex post facto laws. Obama does not have the Rung of Retcon. He can say that waterboarding is NOW to be considered torture under all relevant laws and treaties, but he can't reach back to 2006 and say it was illegal then without violating legal principles. The principle of no ex post facto laws is inconvenient to the raging throng, of course, since it also prevents things like retroactively taxing bank executive bonuses or otherwise punishing people who did something ethically wrong but that was at the time not illegal.

It's not ex post facto to punish Bush for declaring torture legal, but see above. The torturers themselves, however scummy they may be, were following the law as was then in effect. It was a law that had no "will not go into effect until after it survives a challenge", and in general when a law IS struck down on judicial review it's not retroactive.

There are, of course, also practical concerns. Obama doesn't want to lose a big chunk of the CIA if they decide to close ranks and walk out in protest over how the ones that got caught were punished. They'll certainly accept a level of realpolitik if the torturers find their careers stalled, but jail time would go beyond what many of them are likely to accept.

It'd be nice to have a situation where the idealistic solutions could be employed. Kick out all the bad apples. If necessary rebuild entire institutions from the ground up. Toss dozens of lawmakers and bureaucrats in jail. But Obama inherited too many other messes to hamstring himself like that and expect to avoid catastrophe. Sometimes you just have to accept that you've got pirates on the crew and just hope that they don't outnumber the honest sailors....

Comments

[redneckgaijin.livejournal.com]

The problem is, if you allow pirates to remain on their crew, they recruit the formerly honest sailors... until you suddenly discover you don't control the ship anymore.

Failing to deal with the evil of the prior administration is surrender- surrender like Ford, surrender like Congressional Democrats during Iran-Contra. Each time, the evil has returned stronger and more shameless than ever.

[dvandom.livejournal.com]

And if you kick all the pirates off the boat, you founder in the first stiff wind because you lack the hands to control the boat. Like I said, it's a no-win trap. About all he CAN do is stuff like release the memos and hope that there's a posterity to judge the criminals.

[redneckgaijin.livejournal.com]

Ford relied on posterity to judge Nixon, and Nixon managed to redeem his reputation with a good chunk of America before he died. His views on the Presidency were applied by Reagan, Bush 1, Clinton and Bush 2.

Posterity, at best, will look at this time and say, "Why didn't Obama do something? If he had, we might not always be at war with Oceania."

[richardx1.livejournal.com]

I once heard someone say that the Republicans could win any Presidential election they wanted to win, and that they only lost when they wanted to lose. Makes you think they were setting Obama up to fail...

[scavgraphics.livejournal.com]

The surrender happened 5 years ago.

When the avalanche has started, it's too late for the pebbles to vote.

[redneckgaijin.livejournal.com]

The avalanche is over, for now.

The problem is, Obama has decided to try to rebuild on the scree left behind, rather than clear it away.

Which means the next avalanche will be worse.

[scavgraphics.livejournal.com]

I don't necessarily agree with Obama's plans of letting the past settle, but I understand them.

But the gross, intentional, almost criminal, naivete shown by the far left crying about this needs to be prosecuted, and that needs to be investigated, and this must be done, regardless of how the REAL WORLD works, tells me he's likely making the right choice.

What could be possibly be the outcome of trials? A former president goes to jail? In what world where a governor of a state and his gay kung fu actor buddy talk about seceding because they're upset a black man is president and they aren't immediately laughed off of the planet do you think that's going to happen?

If photos showed up of Bush pouring the water into a prisoners mouth while Cheney put battery clamps on his nipples, nothing would happen to them.

This country is a 100 years to immature to be able to actually deal with something at that level, on the both the right and the left.

[redneckgaijin.livejournal.com]

The alternative is to basically tell these people it's A-OK to do these things, or worse, in the future.

Regardless of success, the attempt should be made- otherwise we're telling our descendants that, at best, we didn't really believe in the things we claim to believe in, like justice, freedom and mercy.

[redneckgaijin.livejournal.com]

And besides... is there really any way the Republicans could become more intractable and uncooperative than they already are? What possible downside is there to prosecuting torture- when the prosecution would make it clear that the Republican Party, as a group, stands proudly beside Abu Gharaib and worse?

[misanthrope1.livejournal.com]

I understand the points you made. Unfortunately, I think Obama is making a weak call. Set up a separate committee or special counsel and if you get the evidence, take Cheney, Bush and all the followers to task. That crap of 'we were following orders' was bogus at Nuremberg and is bogus now. If you listened to the Nazis, only Hitler was responsible. Get a ruthless special counsel with liberal leanings and let him/her tear Bush and co apart. Frankly, Obama is caving on a lot to the Republicans when he should be worrying about losing his base.

[diosoth.livejournal.com]

The population is also turning against Obama. Presumably because the promised "hope & change" didn't happen the first week he took office, now people are starting to feel betrayed. Blaming him for Bush's mess isn't the proper way to handle things, yet people are doing it in droves.

I remember a time when people were actually opposed to the idea of raising taxes. Now... I actually see people complaining when a politician suggests lowering taxes.

Forget what the politicians are up to, it's the "population as a whole" that has me more concerned.