High crimes and misdemeanours


The New York Times advocates prosecution for U.S. government officials who permitted or ordered torture of the prisoners at Abu Ghraib and Guantanamo. The editorial itself is demure about who that entails:

A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse.

But if such a prosecutor were appointed, I don’t know how he could stop below the Vice President’s office in searching for the “others involved.” And maybe I’m being demure when I stop at Cheney.

Why? This excerpt from the editorial makes part of the case:

Alberto Mora, the former Navy general counsel who protested the abuses, told the Senate committee that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq — as judged by their effectiveness in recruiting insurgent fighters into combat — are, respectively, the symbols of Abu Ghraib and Guantánamo.”

We are dubiously blessed here, at the Maclean’s blogs, with readers who will write all of this off as proof of the moral failing of the New York Times, as if it were the New York Times that had hooked prisoners up to car batteries, made them believe they were drowning, or forced them at gunpoint to behave like dogs. I take some comfort from some conservative writers in the United States, who understand that morality is not about team jerseys but about adherence to simple standards of right and wrong. Here, in a long and nuanced piece worth reading in its entirety, is Ross Douthat:

Yet of course the waterboarding of al Qaeda’s high command, despite the controversy it’s generated, is not in fact the biggest moral problem posed by the Bush Administration’s approach to torture and interrogation. The biggest problem is the sheer scope of the physical abuse that was endorsed from on high – the way it was routinized, extended to an ever-larger pool of detainees, and delegated ever-further down the chain of command. Here I’m more comfortable saying straightforwardly that this should never have been allowed – that it should be considered impermissible as well as immoral, and that it should involve disgrace for those responsible, the Cheneys and Rumsfelds as well as the people who actually implemented the techniques that the Vice President’s office promoted and the Secretary of Defense signed off on.

Sometimes I think the scale of what’s been happening in these past seven years is so huge that Canadian politics ignores it because it cannot begin to take its measure. In fact that’s what I think most days. But it happens whether we discuss it or not. The Times holds out little hope that Barack Obama will treat this behaviour by his predecessor as sternly as it deserves to be treated.  That  amounts to suggesting that, as ambitious as the new president might be in other ways, he might lack moral ambition. Does bipartisanship matter that much?


High crimes and misdemeanours

  1. “That amounts to suggesting that, as ambitious as the new president might be in other ways, he might lack moral ambition.”

    Or he realizes that torture is an effective way of extracting critical information, and now that he is charged with protecting millions of American lives, he does not want to jeopardize use of measures that will help him in that effort.

    • If by “realizes,” you mean “is an idiot who thinks”

  2. If Obama somehow “realizes that torture is an effective way of extracting critical information” he will have come to a spectacular epiphany that runs contrary to everything most military and security experts will tell you.

    Claude may be under the mistaken impression that praising the wisdom of the great Jack Bauer will get him into his daughter’s pants. I believe Dion Phaneuf and the fact she’s a fictional character are potential obstacles to this.

  3. Claude and Tom, I think you both watch too much tv. Time to get serious.

  4. “Or he realizes that torture is an effective way of extracting critical information”

    I don’t see how that can be reconciled with a president who promises to govern according to facts.

    As noted in the recent US Senate report, the methods used in GTMO and Abu Ghraib were based on SERE training, where personnel are trained to resist torture methods used by Communist Chinese interrogators. Those torture methods were used to elicit false confessions, not information. Victims will tell you anything you want to hear, which isn’t very useful for intelligence purposes.

    Torture is a terror tactic—it is not useful for “protecting millions of American lives.”

  5. Obama will still be a United States President with all the obligations and responsibilities that go with that office. He is hardly going to start going after Bush and the members of his former administration. He would simply leave himself open to the same treatment in future.

    It may have been because of our subconscious fear of getting the same treatment some day or it may have been because we were afraid of the bloodlust of Yankees after 9-11, but it was quite wrong of us here in Canada to abide the Iraq invasion as we did. The sovereignty of an individual state can only be overcome with an international mandate. No United Nations mandate, no invasion. That was Chretien’s position and it was the right one. But once that decision was made, we should not have remained silent. It just stores up trouble for the future, both for us and for the Yankees, who think they can do the same again.

    There are a number of states with extraterritorial laws on war crimes and other crimes against humanity – I believe Spain and Belgium are two. I hope Cheney and Dubya have no foreign travel plans after Obama is inaugurated, I think they may find it difficult.

  6. Shrug. It’s the same deal as Nixon. For some reason it’s considered unpatriotic to go after former white house inhabitants for their blatant crimes. Like those serving in America’s highest office should be above the law, or that to prosecute them would harm the US in some way.

  7. “Sometimes I think the scale of what’s been happening in these past seven years is so huge that Canadian politics ignores it because it cannot begin to take its measure.”

    Absolutely true. Moreover, the US has had a very narrow escape. The torturing of enemy prisoners is just a mild foretaste of what Cheney et al. had planned if there had been a second major terrorist attack. In 2001-2005 in the USA, where I was living at the time, the mental climate of fear was such that, in the event of a second attack, the American people would easily have acquiesced in the suspension of habeas corpus, official censorship of the news — in short, in a legal fascism to match the proto-fascist jingoism that already permeated most public discourse. (In 2002, Sikhs were getting beaten up in Arizona, local sheriffs in California were infiltrating peacenik groups on their own initiative, the media was in a state of denial about the pre-planned Iraq war, etc. etc. What if Baltimore had been irradiated via a dirty bomb?)

    I use the word “fascist” advisedly. The fact that there can still, seven years later, be big chunks of public opinion in favour of torture — I’m sure some of it will be showing up on this comment board shortly — is the kind of thing that makes you understand what it must have been like to live in Germany or Italy in 1935. The fear of “Bolshevism” (coupled with race hatred, of course) was so strong that the people could acquiesce in the most outrageously illiberal policies. Gestapo control was popular. (Please nobody invoke “Godwin’s Law” on this subject: if we can’t discuss the rise of authoritarianism in Western Europe in the 1920s and ’30’s then we have no hope of understanding what the US managed, thank God, to avoid this past decade. Sometimes it feels like “Godwin’s Law” was specifically invented to make sure we forget the most important episode in modern history.)

    Obama should indeed press this. America needs, wants, cries out for a clean conscience, and the only way to do that is to put these criminals in jail. Then they can move on.

    • Hyperbole much?

      Now, maybe you have some source deep inside the White House who had clear information on the inner workings of Cheney’s mind and maybe you’re right that what Cheney et al were just itching to do was establish some quasi-dictatorship in the USA. But I doubt it.

      More likely to have occured if a second terrorist attack occurred is the same scenario that actually occurred under Lincoln in the 1860s where the USA really was under a virtual dictatorship. The suspension of Habeas Corpus, the arrest of thousands of political dissidents, the use of the army to ‘protect’ polling stations from seditionists (there was no secret voting back then remember), the smearing of a political opponents war record, etc.. At the time people in the USA (the north anyways) accepted these measures because they were generally felt them to be necessary since their very national integrity was at risk. After that threat passed, the public did not have an appetite for such measures and things returned to as they were before the crisis.

      The public accepted, indeed demanded certain actions from the government in order to feel safer. After the 9-11 attacks the American people demanded blood. Afghanistan wasn’t enough even and it was only after Iraq that the American desire for vengeance ended. It was the American people who demanded greater border security, the American people who demanded that the US go after terrorists abroad with their army and at home with the FBI and CIA. Indeed, I would argue that the American people demanded that terrorists be tortured during interrogations if they were believed to have knowledge of an impending attack.

      Now that several years have passed and the American people have come to have second thoughts about how far they have gone things will begin to shift back the other way. Just like in the 1860s the threat has passed from the consciousness of the American people and a return to the way things were before the crisis is desired.

      Just as Democrats avoid discussions on the initial justification of the war because they generally supported Bush at the time, I don’t think America wants to revisit these discussions on who to blame for bringing about torture as an interrogation procedure because it reminds themselves of how at one point in time they supported these measures too.

      • You’re comparing 9/11 and the American Civil War? Or just illustrating the kind of hyperbole we should avoid? (ACW = a million dead, 5 years of devastation, etc. etc.; 9/11 = 3000 dead, stock market crash)

        Your post seems to be taking for granted that “the American people” (or “the people” of any country) can do no wrong. How is that not totally amoral?

        • Ahh instead of attacking my argument you attack you’re nit-picking at the example I used.

          The point of my use of Lincoln was intentional because the precedents he set and the things he did were far far worse than anything Bush has ever come close to doing. Lincoln set up secret tribunals that convicted people of ‘treason’ (ie opposing the war) and then executed them. And now he is lionized as a hero. So, in 150 years who knows how people will look back on Bush, maybe he will be looked back on as a visionary leader, or maybe he’ll just be one of those Presidents no one except history buffs ever think about.

          I mean, lets put things in perspective here people. Before WWII the US government was actively provoking Germany to go to war (by firing on German U-Boats), was allowing foreign spy agencies to murder German-American spies in the USA, and was allowing the British spy agencies to filter all US mail coming from the continent. As a Canadian example, Bordon, the PM of Canada during WWI practically rigged the 1917 election.

          Has the USA self-destructed? Has Canada become a dictatorship? No. After the crises (perceived or otherwise) passed the governments have returned to a balance but almost always the government had the support of the majority of the people to enact such measures during the time of crisis. That’s not to say the people are always right but blaming politicians for reflecting the public’s mood is a unfair since that is their job.

          So if you want to know who to blame for the last 8 years I suggest you stop looking at the politicians are start looking at the people who voted them in and re-elected them. And if you want to know who to blame for current policies on torture we should blame the electors who supported it.

          • What argument? That people have behaved badly in the past? That’s an argument?

            I do blame the people who reelected him. People like, ah, yourself. If there were more of them, neither the USA nor any other country would have civil liberties left.

  8. I suspect the public’s approbation of torture is largely an issue of it thinking about in the most abstract of terms coupled with the fact that we (or rather, they) don’t even know the full extent of what has gone on in the last seven years.

    • Woah cool, we can reply to comments now.

      • Dude! I’m talking to you!

  9. Jack Mitchell–you running for political office sometime soon? You should.

    • Thanks, Jenn! But then they probably wouldn’t let me comment on these blogs . . . : (

  10. Well, nice of you to pre-emptively diss anyone who might speak up by pointing out how we are blinded by our own team jerseys.

    I read the Times editorial you linked to. To the extent there was wilful disregard of the sirens wailing in military legal circles, there may well be a “there” there. I ask that we spare a moment to have at the last point they make:

    A good place for them [Obama’s team reviewing Bush 43’s executive orders] to start would be to reverse Mr. Bush’s disastrous order of Feb. 7, 2002, declaring that the United States was no longer legally committed to comply with the Geneva Conventions.

    That order in no way declared that the USA was abandoning Geneva; it reaffirmed it, while recognizing that the non-state non-uniformed non-army combattants in their custody were, by Geneva’s own definitions, not deserving of its protection. But the USA would still nonetheless do everything they could (“to the extent appropriate and consistent with military necessity”) to abide by Geneva even for these non-Geneva class detainees.

    Would it be OK with you Paul if I bring up the moral failing of the Times for spectacularly misrepresenting that so-called “disastrous” order? Or is that out of bounds because of some jersey I’m supposed to be wearing?

    • In my books, myl, you would be perfectly correct in doing so, because you make your argument on the facts as you understand them and not simply on faith in your team leader.

      But my objection would be to any notion that Canadians wear team jerseys at all; we wear sweaters. Not just sweater vests, but hockey sweaters. Roche Carrier must be concerned about this americanization of our iconic vocabulary.

  11. Bush & Cheney….. never happen…. never ! so the rest is academic. As retired service member with some service with the Military Police…. this I know mistreating any prisoner is wrong. Think! You have captured a deadly suspect and there has been a threat of mass destruction in a major Canadian city… some high ranking fool orders torture…. it’s done and he says Montreal just before he has heat failure and dies…. now what? how the heck to you evacuate a city of 2 million people and to where? do you tell them…. not likely…. panic will kill thousands…. so government evacuates the rich and powerful (nothing new here) and they go to Toronto…… two days later Toronto is where it happens….. Then the PM goes on TV and tells Canadians what?????????? yea right…. So Paul good headlines….. no action… Even John McCain side stepped the issue giving the Bush Admin. a pass.

    • Because John McCain was Americas last best hope for reasonable foreign and miltary policy? Really?

  12. There is talk in some quarters about – wait for it – a Truth and Reconciliation Commission.

    I’d be happy enough if Obama were to repeal whatever needed to be repealed to get the garbage off the books. And let Congress do it’s usual dog&pony show to expose the dark netherworld of Cheney-think.

    Let’s not forget that Obama went along with the recent wire-tapping legislation.

    The Imperial Presidency has been advancing since long before Bush’s tenure.

  13. The Bush/Cheney defence has always been: these measures, however extreme have been necessary for our defence. Unfortunately you may never know the full extent of our danger – national defence trumps all. Secrecy is the enemy of democracy. Platitudes may be. Pardoning Nixon as a mistake. It was hoped, at the time, that it would heal divisions in America. It hasn’t. It merely helped to sow the seeds for the neo-con revolution. Impeach bush and all who sailed in him. Sadly those of us who only stood by and watched are not absolved. We’ve seen this movie before, guess the stakes are just higher.

    • Have you read some of his posts lately? Seems like torture to me…

  14. And the leader of the Liberal Party was a part of it.

    Perhaps Canada is ignoring the magnitude of it for other reasons?

  15. This is not only a matter of moral failing: it is about the rule of law. The rule of law is fundamental to democracy and civil society and I believe Canada’s respect for the rule of law is what makes this country so great.

    The Supreme Court established in R. v. Cook [1998] 2 S.C.R. 597 that Canadian Charter rights may apply outside Canada. In 2005, a Canadian Federal Court judge granted, as a Canadian Charter remedy, an interim injunction preventing Canadian officials from, pending trial, conducting any further interviews, interrogations or questioning of Omar Khadr, a Canadian citizen, who was then 17 years old. He has been detained at Guantanamo Bay since 2002.

    During the course of the Bush Presidency, US Department of Justice spokespeople have issued statements to the effect: “The United States does not practise torture, export torture or condone torture.” To say this is cold comfort would be a gross understatement. CBC reported in 2005 that in legal briefs written by US Attorney General Alberto Gonzales, the US Justice Department defined torture to mean “pain consistent with major organ failure or death.”

    In contrast, the United Nations Convention Against Torture, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.”

  16. War is a nasty business. I seriously doubt that Obama goes after the Bush administration for “war crimes’ for the same reason that the allies turned a blind eye to post-war commentary decrying Dresden and Nagaski as “war crimes”. Firstly, the criticisms usually comes from people that were entirely against their country ever experiencing any level of sucess in the military conflict to begin with. Secondly, its premised on some sort of fantasy that you can have a ‘nice’ war despite the fact that war is historically about doing whatever is required to win, the very fact that killing is sanctioned to accomplish national objectives suggests the day to day standards of what is acceptable has changed. Thirdly, with two wars ongoing its doubtful Obama wants to deprive himself of any resources should he need them. The only thing worse than fighting an unpopular war is losing an unpopular war.

  17. Unless Obama and his administration have some solid facts about serious crimes being committed, and not supposed moral failings, than I think it’s an absolutely terrible idea to prosecute the admin that’s just about to leave because the threat of lawsuits and jail time are a good way to make the current admin want to stay.

    I think one of the things that allows for orderly hand overs of power in democracies is that people on their way out know they aren’t going to end up in jail for dubious reasons. Unless there is evidence that US domestic laws were broken by Bush et al, trying to charge them with crimes is a bad idea indeed.

    • Well, we better stop all this talk. There’s certainly no evidence here…

    • I agree with you; small minded persecution on minor violations out of vindictiveness would be wrong and would hamper long term feelings towards the orderly transition of government.

      If, and I mean if, since I have no direct knowledge or understanding of these matters, it is true that the Bush Administration abused executive powers or privileges, contravened knowingly the constitutional rights of citizens and abrogated to itself unconstitutional powers, would that be worthy of consideration?

      There are some who believe they have documented these very transgressions, although I haven’t read their work in detail. http://www.charliesavage.com/

      • “arrogated”, not “abrogated”. Sorry

        • jwl
          Nixon set a terrible precident. The President [ any ] is not above the law. Did you support the call for impeachment of Clinton, just wondering?

          • I thought Clinton should be impeached once he lied under oath. However, I didn’t believe the whole circus should have been launched in the first place, it should have stayed between Bill and Hillary as a private matter. Clinton’s behaviour was despicable and broke all kinds of laws he enacted about women and the workplace but, until he lied under oath, he should have been left alone.

      • “contravened knowingly the constitutional rights of citizens and abrogated to itself unconstitutional powers”


        Absolutely, charge people if there is proof of your example. However, I am not going to take the word of people with Bush Derangement Syndrome that crimes have been committed.

        If there is solid proof of domestic crimes being committed, than charge them. If things have been done that are legally in the grey area, than don’t bother. I imagine the President is forced to make hard decisions every day that are legally dubious, having new admin charge old admin with these types of crimes is a good way to start dictatorships.

        • “However, I am not going to take the word of people with Bush Derangement Syndrome that crimes have been committed.”

          Forgive me, but that kind of sentence holds a whiff of sweater coating. As I say, I haven’t read in detail the work of Mr. Savage and others, I’m just aware of them. Mr. Savage doesn’t strike me as a reactionary kool aid drinker, despite working for the NYT. His bio shows a Pulitzer and a distinguished univeristy background. Anyway, before I champion or dismiss those accusations, I think I should read them first. I will be rummaging the remainder bin after Christmas.

          On Clinton, I am ambiguous, but not because of any sweaters I keep in my drawers. I felt his desire to keep an embarrassing personal failing a very human weakness and while deeply regrettable and unworthy of the office, not the kind of thing you invoke a Spanish Inquisition for. I think we both agreed above that the degree of seriousness of the crime is an important consideration, given the long term impact on stability and transition. I’m not sure one way or the other whether his crime – and I believe he committed one – merited the spectacle and the degradation of the office and the distraction from other matters it must have precipitated.

          I hope that doesn’t come across as too spineless. I really am conflicted on that one.

        • jwl
          Surely yr not suggesting the fudging of the definition of torture was ok? And there is plenty of envidence, probably not all circumstantial

          • Depends on your definition of torture. I have no problem with messing around someone’s sleep patterns, or making them behave like dogs, if they have knowledge about terrorist cells and the like. I am against putting people on ‘the rack’ or in the iron maiden or chopping off their fingers one by one … etc.

  18. Intereresting topic, especially interesting during the release of Frost/Nixon. That rply of
    Nixon resonates eerily down the yrs. ‘ I’m saying, if the president says/does it, its not illegal’
    Need we say more? Nixon – Bush – what next? Either your’e under the law, or you are not.

    • Seriously. Thing is, Cheney and Rumsfeld were both sworn Nixonites — this was their revenge on all those years of constitutionalism.

      What I find fascinating is that neither they (in 2001-2008) nor Nixon (in 1968-1973) seem to have needed to get all extra-judicial. They just wanted to. Power corrupts, etc., but it seems amazing that C & R should have patiently waited for nearly 30 years, chafing all the while for the thrill of unchecked power.

      Ironically, if Obama really followed the Nixonian doctrine, he could just disregard Bush’s forthcoming pardons and have the whole gang of criminals shot.

  19. jwl
    On the transiton of goverment: the prescident for vindictivity has, it is argued by some, has already been set. Impeachment proceedings against Clinton were revenge for Nixon.

    • “Impeachment proceedings against Clinton were revenge for Nixon”

      If that’s true than I hope they leave it there, one each. I really hope Obama doesn’t let the more zealous of his party go after Bush unless they have some serious proof domestic crimes were committed. Obama comes from Chicago, which is entirely corrupt politically, so maybe he will take a practical view of matters and not be too idealistic.

  20. jwl
    Gonzales definition of torture was so extreme and elastic as to be meaningless. Either we [western wrld] want to be feared, respected and hated. Or we live up to our ideals and convictions. As we haven’t tried the later to date, maybe it is time.

    • That study has fascinated me for a long time. Apparently, we are all Torquemada’s just waiting for the chance to let lose.

    • We are such sheep. I still vividly remember a candid camera episode where acouple of people get in a lift and promptly turn around and face the rear wall. as i remember it, everyone else in the lift had turned and faced the rear wall before they arrived at their floors. Incredible.

  21. A thread about torture is a good place to do this:

    Merry Christmas, Paul Wells!

  22. No need to be silly in your comments, Tom. Use logic — while torture doesn’t always work — logic would tell you that repeated beatings and threats and intimidation and simulated drownings would work on many, if not most…including apparently KSM. I know it would work on me. But maybe I am just weaker than most, and maybe you are tougher than most.

    And I am sure that even though it seems Obama’s inclination would be to use torture as a tactic less frequently than Bush / Cheney apparently have…BA may want to leave himself SOME room to authorize its use, rare as those instance may be — which is why he may now be restraining himself when it comes to addressing his predecessor’s use / authorization of torture.

    • “logic would tell you that repeated beatings and threats and intimidation and simulated drownings would work on many, if not most…including apparently KSM. I know it would work on me. But maybe I am just weaker than most, and maybe you are tougher than most.”

      The above statement presumes that
      1) the person being tortured actually have some intel, (i.e. your guilty) and
      2) that the torturer would know good intel when they see it.

      In cases where either 1) or 2) are not satisfied, logic would tell you that torture would not work.
      So not only is torture immoral, its bound to be ineffective.

  23. While we are on a similar topic, will there be any posts regarding CSISs’ wiretaps of privileged communications?

    • Would that be the wiretapping of phones, with the prior knowledge of the individuals and their lawyers and as one of several conditions of their release from custody, that these individuals then used to speak with their lawyers? Do you mean that wiretapping?

      Seems to me that if I agree to have my phones tapped, and I want to talk to my lawyer, and I don’t want the fuzz to hear us, I wouldn’t use my phone. But I must be missing something.

    • CSIS apparently admitted their mistake, so as long as they play by the rules going forward it should be OK.

  24. Do you think the NYT is thinking about our self-confessed torture boy Iggy ?

    I’d vote for extradition if they want to go after him

  25. Fair enough, as long as they also prosecute the news organization that illegally leaked the story about financial tools used to track Al Qaeda.

  26. What Bush and Cheney have done is very much in step with a increase in executive power (and abuse) in all facets of American life. As Jack Mitchell observed, after 9/11, it seemed like everyone with authority magically assumed new powers and set out to tranple rights at every opportunity. This has also happened in the UK.

    What is depressing is how little the media has responded in either country, and how little the average citizen has been able to do to protect themselves.

    Canada has avoided the worst excesses, but there have been times when the the RCMP has acted in the same way.

    I don’t expect Obama to do anything; he is no enemy of executive power (of course, he, believes he will only act in our best interests) and if he wields the weapon of the Justice Department against Cheney et al., he knows the republicans will return the favor when they get back in.

    This needs to be done by the media, but the idea of CNN or Fox taking this up is too much to hope for.

  27. “Sometimes I think the scale of what’s been happening in these past seven years is so huge that Canadian politics ignores it because it cannot begin to take its measure.”
    I can relate to that. KC up there is talking about Frost/Nixon. I just put away Alexander Haig’s memoir of those days. The role of the press in politics is so very important, but like politics itself, the press role has been corrupted beyond redemption. Right and Wrong is not simple. Not at all.

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