Impeach Bybee

One of the authors of the OLC memos laying down the legal justification for torture was Jay Bybee, who is now on the Ninth Circuit Court of Appeals. He was confirmed by the Senate long before anyone had any idea that he had written these memos.

A movement has been building to impeach him. Jerrold Nadler, a Representative from New York (and my old Congressman), is one of the people leading the charge. Good for him. I strongly support this. Nadler is in a position to do something about this. He is chair of the Judiciary Committee's Constitution, Civil Rights, and Civil Liberties Subcommittee. This is one of those moments that I am supremely thankful that the Democrats control Congress. It is also one of those moments that I am thankful that there are Democrats in Congress who are willing to disagree with the Obama administration on this. Daily Kos has, as usual, an excellent post about this, including what is being done at the grassroots level in California.

I do not know whether or not Jay Bybee should be removed from office, because he is innocent until proven guilty. I am not in a position to pass that judgment. But I believe that Congress has an obligation to investigate this issue to the fullest extent possible. The NY Times agrees with me:

After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability.

One of the best things that an impeachment will provide is an opportunity to force legislators to make their positions clear: do you or do you not support the use of torture? I sincerely welcome that debate and that opportunity. There are many good Republicans and conservatives who oppose the use of torture. It needs to be made clear who in the GOP stands where on this issue, so that those who believe in the humane treatment of prisoners can separate themselves from those who believe in vengeance and despicable, unnecessary violence as a legitimate purpose of the government.

Impeach Bybee. It is the very least we can do.

The torture memos

The Obama administration yesterday released the memos from the Bush administration's Office of Legal Counsel justifying torture.

There is good news and bad news in this development. First, the good news is that Obama did the right thing in releasing the memos with minimal redactions. This is virtually unprecedented in American history. I'm sure that it never occurred to the Bush people that their successor would release these memos. In that respect, Obama is already breaking ground. Makes me proud that I voted for him and campaigned for him.

The bad news is that Obama made it clear that he does not intend to pursue prosecutions of the people who conducted the torture, at least not those who acted in "good faith." Many people on the left strongly disagree with this. Glenn Greenwald wrote an excellent piece for Salon, on the one hand praising Obama for releasing the memos, and on the other hand criticizing him for not pursuing prosecutions. I disagree with Greenwald on one point. He writes that

there wasn't much political gain for Obama in releasing these documents.

I understand why he writes that; the right is strongly critical of him, while the left is just thankful that he did the right thing. I think it does benefit Obama somewhat in the short term, because it shores up his support from liberals. Not that he needed it, but he won't be criticized as much as he would have been if he had stonewalled. In the long term, however, I think Obama benefits substantially, because he has taken a good solid step towards rewarding Americans' faith in their government's ability to acknowledge its errors. Restoring even a tiny bit of faith in democracy is a Herculean task, and for that Obama deserves praise as well.

Andrew Sullivan has been all over this, as he has for years. He has done his adopted country a great service by relentlessly hammering home how despicable the Bush administration was.

Looked at from a distance, the Bush administration wanted to do two things at once: to declare to the world that freedom is on the march, and human rights are coming to the world with American help, while simultaneously declaring to captives that the US has no interest in the law, human rights, accountability, transparency or humanity. They wanted to give hope to all the oppressed of the planet, while surgically banishing all hope from the prisoners they captured and tortured. And the only way they could pull this off is by the total secrecy they constructed and defended. So we had a public government respectful of the rule of law, and a secret government whose main goal was persuading terror suspects that there was no rule of law at all. It is hard to convey just how dangerous this was and is.

What is key to remember at this juncture is that the release of these memos is the beginning, not the end, of the process of restoring the rule of law. I disagree with Obama's decision not to pursue prosecutions of the agents who engaged in torture, but I don't condemn him for it. First, it's not his job; the Presient does not make decisions about who to prosecute, although he clearly has influence. I usually agree with him on reaching out to people who disagree with him. This time, I think he did so not just out of concern for maintaining political peace. He is technically the boss of everyone at the CIA, and those are people you really don't want to piss off. On the other hand, you have to be prepared to piss them off; that's part of the job of the President.

But it's also clear that Obama is not foreclosing all options to hold people accountable. In a sense, I am glad that he is not proposing prosecutions for people who tortured, because I am not sure if that is the best way to hold people accountable for these atrocities. It may or may not be a good idea; I'm not a lawyer, so I don't know. But there are a number of avenues available to us, many outside the executive branch. Nature abhors a vacuum, as does a scandal. Ironically, by foreclosing the option of prosecution, Obama opens the door to many other possible solutions. Congress may appoint a special prosecutor; at the very least, I expect hearings to be held.

One great thing about Obama that I am appreciating more and more is that he has a very deep and abiding faith in both the American people and democracy. In both of these, he is the exact opposite of Bush and Cheney, who had so little faith in either. Obama cannot control what will happen now that these memos have been released, but he does not want to. He has given the American people permission to pass judgment, argue, and decide what should be done.

The worst news that we heard today is that what so many suspected was true; the Bush administration systematically authorized torture. The best news was that we heard about it from the President of the United States.

What was done in secret will be changed by what will be done in the open.

The American people are Obama's great secret weapon.

Obama Adjustment Syndrome and the OLC memos

I think I am suffering from Obama Adjustment Syndrome. The primary symptom of this syndrome is an inability to react to major policy initiatives from the Obama Administration in real time, because they come at you fast and furious. This was particularly acute last week, when I was sort of chilling after the Oscars. I blinked, and suddenly I missed Obama's major address to Congress, the not-quite-SOTU. So I started watching the video of that online.

Then all of a sudden there was the budget. OK, let me get a grip . . . Wham! We're pulling out of Iraq. Wow, that's great, can I get some details? . . . Bling! We're bailing out another one of the financial companies.

Plus there were a few other things that I'm sure were hugely important and that I have been waiting years for but that I can't quite recall.

Today it's the release of the OLC (Office of Legal Counsel) memos. On this issue, attentoin must be paid to mcjoan at DailyKos, and Andrew Sullivan. And I must pay attention.

We cannot be thankful enough that the Obama Administration has begun to expose the criminal wrongdoings of the Bush Administration, and we cannot be too harsh in our condemnation of the crimes that were perpetuated by the Bushies, particularly Dick Cheney, David Addington, and John Yoo.

I have heard many calls for various levels of investigation into what happened under Bush. I have to admit that I have been somewhat reluctant to join the chorus, because I think there is a real temptation to "criminalize political differences," i.e. to make prosecutorial mountains out of the molehills of differences of opinion.

But when the conduct in question is criminal, then we have not just the right, but the responsibility to investigate and, if necessary, prosecute. We have done so before, during Watergate, and our democracy survived.

We are responsible in this respect not to ourselves or our constituents, but to our system of justice. We have certain responsibilities to democracy.

Democracy gives us the freedom to experiment with our politics, but then holds us accountable when those experiments fail. We are in such a moment right now.

In this democracy, we all have equal opportunities within this system, and we are all considered equal before the law. The problem with this is that we don't know how to ensure that all are equal before the law, and we have different opinions about what that means. Those in power tend to have very different ideas about what constitutes justice than those who are not in power.

The system works as long as enough of us believe that the system itself, despite all its flaws, is still better than any other system for giving us the closest we can come to equal opportunities. Essential to that ideal is the system of checks and balances. As long as most people have at least some voice within the system, they have an incentive to try and make the system work.

I have written before that the American system of democracy was designed to withstand the maximum damage that can be inflicted on it, either from outside, or from within. The Bush Administration's misdeeds have been one of the attempts to inflict severe damage on the system of American democracy. The release of these OLC memos demonstrates that. Unlike almost every other politician in our system, Bush and his cronies did not believe in the system of checks and balances. They did not believe that all people are equal before the law. They believed that the President, and, by extension, those who worked for him, was above the law. Perhaps the hideous implication of this idea is that it grants to the president the right to decide who is outside the law, who does not deserve the protection of the law. That is the definition of a dictatorship.

Investigating the abuses of the Bush Administration does not constitute "criminalizing political differences."

Criminalizing political differences is what the Bush Administration did.