Prosecuting Those Responsible.

( – promoted by buhdydharma )

(After quantifying US casualties on September 11, 2001.)

These measurements obviously did not capture the full meaning of September 11. A familiar terrorist threat announced itself that day with frightening new proximity and ambition. But decision made in the White House, in response, had incomparably greater impact on American interests as a society.

Barton Gellman in Angler – The Cheney Vice Presidency, page 132.

It is entirely by design that bringing abusers of power to justice will be riddled with setbacks. The Bush 43 leaders and high level advisors used deliberate sleight of hand to insure their prosecution was improbable. They are counting on the fact that the decision to prosecute them is entirely political, and that willingness to to spend political capital for crimes gone by will be small. But they’ve also fortified their steps with subtleties that make it harder to figure what went wrong.

It will take a lot more than just energizing the left wing behind the cause and supporting Senator Leahy to bring lawbreakers to justice. We have to convince the American mainstream if we are going to make prosecution happen. A mainstream that has demonstrated time and again that they are certain to miss the subtlety.

Until we can convince the average US citizen that abuse of power needs to be prosecuted, we will never really touch the people responsible — we need to convince the average guy on the street that it’s necessary. The good news is that if you step away just a bit, you can see a clear pattern of abuse emerge, and if you can identify this pattern, you can find the flaw and convince your neighbor how mainstream America got duped.

Please let me recommend Angler: The Cheney Vice Presidency, by Barton Gellman as essential reading to anyone interested in gaining support for prosecuting our former leaders.

Surely it’s obvious that something went awry when you look at the result of the decisions made by the Bush 43 White House. Our government detained innocent people and tortured them. They justified and started a war of choice in Iraq. Dick Cheney got authorization to initiate a sophisticated and domestic spying program. The executive branch assumed far more power than was given them by design. The George W. Bush administration altered the course of the United States perhaps more than any terrorist could.

I want to start at the Office of Legal Council. Perhaps, when government officials do not like what the law means, they visit this office for clarification. To find what flavor of contortion sometimes comes from this office, consider that William Renquist and Antonin Scalia are both alumni. But the important point is that the resulting opinion from this office is a binding precedent, and must be honored by all cabinet departments.

I want to demonstrate what I think is going on by using as an example the opinions of their star alum — Justice Scalia. So you’ll be convinced that Scalia uses this trick frequently, please take a moment and google “Scalia” with “1789” before you read the Justice Tony Tutorial below.

                              Aside: The Justice Tony Tutorial

Justice Scalia is fond of invoking the year 1789 when he interprets the constitution. He thinks that proper precedent requires that we view the constitution with a lens that belonged to a common person who lived in the day when the founding document was written. Original intent is Scalia’s honored principle.

The critical point is that we cannot ask anyone who lived in 1789 what the constitution means to them. This is no subtlety: it leaves Justice Scalia — with very little additional little sleight of hand necessary — able to interpret the constitution any way he chooses. Scalia uses this tactic because it is effective, and because the flaw is not obvious to the casual observer.

The key phrase that provides the smoke and mirrors is “original intent.”

I want to suggest that John Yoo and his friends used Scalia’s 1789 trick to finesse torture policy — and this pattern generalizes nicely with respect to how they finessed other abuses, as well. With respect to torture, they play sleight of hand with the concepts of “specific intent” and “pain.”

Let’s talk about John Yoo’s definition of pain from one of his memos.

…(5) that the act inflicted severe physical or mental pain or suffering. See also S. Exec. Rep No. 101-30, at 6 (1990) (“For an act to be ‘torture,’ it must … cause severe pain and suffering, and be intended to cause severe pain and suffering.”) As we have explained elsewhere, in order to violate the statute a defendant must have specific intention to inflict severe pain or suffering – in other words, “the infliction of such pain must be the defendant’s precise objective.”…

Section 2340 further defines “severe mental pain or suffering” as

the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death;

(D) the threat that another person will imminently be subjected to death, severe pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

18 U.S.C. 2340(2) As we have explained, in order to inflict severe mental pain and suffering, a defendant must commit one of the four predicate acts, such as threatening imminent death, and intend to use “prolonged mental harm.”

Let’s apply this criteria to waterboarding.

The point I want to make about waterboarding is twofold. First, waterboarding was never intended to cause pain in the acute sense, in fact, most hypoxic torture is used with the purpose of leaving no evidence of torture on its victim. Waterboarding hurts in a psychological way. It’s sole purpose is to convince its subjects that they are in imminent danger — that they are about to suffocate to death. Second, it is difficult to verify to policymakers that the first point is in fact true. You could waterboard a senator, but since he knows it’s an academic exercise that would in fact not be lethal, you cannot apply the real psychological stress during the test. It would be a damned unpleasant experience, but it would still be free of the crucial terror component. It is the terror component that inflicts the psychological rewiring and prolonged mental harm that makes it a heinous practice. The water has nothing to do with it.

I recently wrote a diary that introduced what I called The Rambo Myth and The Rambo Corollary, where I suggested that our government tends toward a “Rambo” standard for torture: if it isn’t harsh enough to impress Rambo, it isn’t torture. The problem with this is that we can’t ask Rambo if it hurts, so lawmakers — and your neighbors — are left to imagine the experience for themselves. This gives our leaders the ability to define torture arbitrarily. If it’s torture, it’s got to hurt — and if the interrogation technique is not nefarious enough to impress Rambo, it can’t be that bad, right? We’re not putting prisoners on a rack, or applying electricity to their testicles. It’s just a little water. This isn’t torture, it is enhanced interrogation. But getting water up the nose hurts, so we can’t let them get any water up the nose, because if it hurts, it’s torture, and we don’t torture…

Let me suggest that this pattern applies to most of the abuse of power tactics that the W administration used. And if you can identify the flaw, you can convince your neighbors. That is what we need to produce the political capital necessary to prosecute those responsible.