Establishment Washington unifies against prosecutions

What explains the virtual unanimity among political and media elites that Bush officials should be protected from any accountability for crimes they committed?

Published January 15, 2009 10:53AM (EST)

(Updated below - Update II - Update III - Update IV)

The Washington Post's David Ignatius today does what he does best:  serve as the spokesman for the Washington establishment's most conventional wisdom in a way that really illuminates what it is:

To underscore the message, Obama indicated that he would oppose retrospective investigations of wrongdoing by the CIA and other agencies, arguing: "When it comes to national security, what we have to focus on is getting things right in the future, as opposed [to] looking at what we got wrong in the past." This is the kind of realism that will disappoint liberal score-settlers, but it makes clear that Obama has a grim appreciation of the dangers America still faces from al-Qaeda and its allies.

The word "liberal" has undergone a remarkable transformation over the last eight years.  All that has been necessary to qualify is a belief in such radical, exotic and fringe-leftist concepts as search warrants before the Government can eavesdrop on our communications; due process before the state can encage people for life; adherence to decades-old Geneva Conventions restrictions which post-World-War-II America led the way in implementing; and the need for an actual, imminent threat from another country before we bomb, invade, occupy and destroy it. 

Now added to the pantheon of "liberal" dogma is the shrill, ideological belief that high government officials must abide by our laws and should be treated like any other citizen when they break them.  To believe that now makes you not just a "liberal," but worse:  a "liberal score-settler."  Apparently, one can attain the glorious status of being a moderate, a centrist, a high-minded independent only if one believes that high political officials (and our most powerful industries, such as the telecoms) should be able to break numerous laws (i.e.:  commit felonies), openly admit that they've done so, and then be immunized from all consequences.  That's how our ideological spectrum is now defined.

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The more important development highlighted by Ignatius' name-calling is how important it has obviously become to establishment media and political figures to vigorously argue against investigations and prosecutions for Bush crimes and even to rehabilitate Bush officials as well-intentioned leaders who, at worst, went a little overboard in protecting us.  Digby raised this question the other day:  given that there is virtual unanimity among our political and media elites that we do not and should not hold American political officials accountable when they break the law and (especially) when they commit war crimes -- indeed, outside of civil liberties groups and a few political advocates here and there, it's virtually impossible to find anyone advocating that Bush officials should be criminally investigated -- why has it become such a priority for establishment figures to defend Bush officials and urge that there be no prosecutions?  As Digby put it:

I'm beginning to wonder if there isn't more to all this than is obvious. I don't honestly think anyone wants to deal with the torture regime, and it doesn't seem to me that there is a huge public clamor for it. For most people, it's probably enough that the president has promised to end the policy. So, I'm a little bit surprised that it remains so prominent on the radar screen. Something doesn't scan.

I'm not sure I know the answer exactly, but there seems rather clearly to be two primary factors at play:

First, Bush officials didn't commit these crimes by themselves.  Virtually the entire Washington establishment supported or at least enabled most of it.  It isn't merely that leading Congressional Democrats were, to one degree or another, complicit in these acts and are therefore hamstrung in investigating crimes of which they were aware and did nothing to stop, though that is true.  The enabling of all of this extends far beyond the leadership of the two parties.

As confirmed accounts emerged years ago of chronic presidential lawbreaking, warrantless eavesdropping, systematic torture, rendition, "black site" prisons, corruption in every realm, and all sorts of other dark crimes, where were journalists and other opinion-making elites?  Very few of them with any significant platform can point to anything they did or said to oppose or stop any of it -- and they know that.  Many of them, even when much of this became conclusively proven, were still explicitly praising Bush officials.  Most of them supported the underlying enabling policies (Guantanamo and the permanent state of war in Iraq and "on terror"), and then cheered on laws -- the Military Commissions Act and the FISA Amendments Act -- designed to legalize these activities and retroactively immunize the lawbreakers and war criminals from prosecution.  

So when these media and political elites are defending Bush officials, mitigating their crimes, and arguing that they shouldn't be held accountable, they're actually defending themselves.  Just as Nancy Pelosi and Jay Rockefeller can't possibly demand investigations for crimes in which they were complicit, media stars can't possibly condemn acts which they supported or, at the very best, towards which they turned a blissfully blind eye.  They can't indict Bush officials for what they did because to do so would be to indict themselves.  Bush officials need to be exonerated, or at least have their crimes forgotten (look to the future and ignore the past, they all chime in unison), so that their own involvement in it will also be cleansed and then forgotten.

Second, and quite relatedly, is that establishment elites have, by definition, a vested interest in glorifying and protecting the Washington establishment.  It's perfectly fine to have a President who is inept or even somewhat corrupt.  A titillating, tawdry sex scandal is also fun, even desirable, as that keeps entertainment levels high.  That's all just part of the political cycle.

But to acknowledge that our highest political officials are felons (which is what people are, by definition, who break our laws) or war criminals (which is what people are, by definition, who violate the laws of war) is to threaten the system of power which, above all else, they are desperate to maintain, as it is their role within it as royal court spokespeople that provides them with their access, prominence, wealth and self-esteem.  Their prime mandate is to protect and defend establishment Washington -- most media figures are integral parts of that establishment, not outside of it -- and that means, above all else, attacking anyone who would dare suggest that the establishment has been rotten, criminal and evil at its core.

In a typically superb essay -- entitled "Flushing the Cheney Administration Down the Memory Hole" -- Billmon compares the process currently underway to how adept the Soviets were at simply erasing embarrassing and unpleasant episodes from their history:

It shows just how far the system -- specifically, in this case, the Beltway political press -- has wandered from reality.

You can see this in just about all of the transition coverage. Reporters (like the ones responsible for the journalistic abomination above) and columnists and pundits are busy cranking out the usual lame duck legacy stories, as if this were the "normal" end of a "normal" presidency, instead of the concluding chapter of a national tragedy.

There is just a yawning disconnect between the nature of the crimes allegedly committed (and, in many cases, essentially admitted): waging aggressive war, torture, secret prisons, illegal wiretapping on a massive scale, obstruction of justice, perjury, conspiracy -- to the point where it would probably take an army of Patrick Fitzgeralds and a full-time war crimes tribunal a year just to catalogue them all -- and how the story is being treated in the corporate media. . . .

And, as in late Soviet times, the absurdity of the official story line is only reinforced by the other systemic failures that surround it: in our case, financial collapse, plunging asset prices, massive fraud and a corrupt, sclerotic political system that may be incapable of doing even the most simple, obvious things (like printing and spending sufficient quantities of fiat money) to stave off an deeper downward spiral.

This being the case, I have a strong hunch the political-media complex (i.e. the Village) is going to want to move fairly quickly to the post-Soviet solution I described earlier -- skipping right over the perestroika and glasnost to get directly to the willful amnesia and live-in-the-moment materialism of mid-1990s Russia.

Which means, in turn, that Bush, Cheney, Rummy, Feith and the whole noxious crew are about to get flushed straight down the memory hole: banished fairly quickly from public discussion and corporate media coverage -- in much the way the Iran-Contra scandal (go ahead, Wiki it) was almost immediately forgotten or ignored once it became clear that the fix was in. America apparently had its big experiment with truthtelling and reform in the post-Watergate era, and the experience was so unpleasant that nobody (or nobody who counts) is willing to go there again. That would be like expecting the Baby Boomers to start dropping acid again.

The political/media establishment isn't desperately and unanimously fighting against the idea of investigations and prosecutions because they believe there was nothing done that was so bad.  They're fighting so desperately precisely because they know there was, and they know they bear much of the culpability for it.  They fear disruptions to their own comforts and prerogatives if any more light is shined on what happened.  The consensus mantra that the only thing that matters is to "make sure it never happens again" is simply the standard cry of every criminal desperate for absolution:  I promise not to do it again if you don't punish me this time.  And the prevailing Orwellian Beltway battle-cry -- look to the future, not the past! -- is what all political power systems instruct their subjects when they want to flush their own crimes down the memory hole.

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Two unrelated notes:

(1) To follow up on the Tom Friedman claim from yesterday that Hamas will lose support if Israel kills enough Palestinian civilians, The New York Times today reports that "The more bombs in Gaza, the more Hamas’s support seems to be growing at the expense of the Palestinian Authority."  This was the (self-evident) point made so well yesterday by Daniel Larison:  if a foreign power drops lots of bombs on a population (to say nothing of stories like this and this), they tend to become more hostile to those doing the bombing and more supportive of their own leaders, especially if those leaders vow retribution against the attackers.  As Jonathan Schwarz recalls, Tom Friedman's own demented reaction to the 9/11 attacks illustrates exactly how that dynamic works.

(2) In The Los Angeles Times' Op-Ed "Dustup" feature this week, I'm debating various issues surrounding the last days of the Bush administration with American Spectator Editor W. James Antle II.  The first installment (which, truth be told, wasn't all that fascinating) is here; today and tomorrow's sessions will hopefully be more probing.


UPDATE:   Throughout the 20th Century, the U.S. has criminally prosecuted people for waterboarding -- both foreigners who did it and then were prosecuted as war criminals, and American law enforcement officers who did it and were prosecuted as ordinary criminals.  But now, in America, MSNBC devotes three hours every day to hearing from someone -- Joe Scarborough -- who just the other day spent six minutes on television explicitly defending torture.  There is something about this clip that is simultaneously repulsive and yet fascinatingly illustrative about what the country has become:


UPDATE II:   The new FISA court ruling -- which The New York Times' Eric Lichtblau reported here today -- is going to be distorted and misunderstood because Lichtblau's reporting is both deeply confused and plainly inaccurate.  Talk Left's Armando and Anonymous Liberal -- both lawyers -- detail Lichtblau's confusions, but I just want to add these observations:

The new ruling -- at least based on Lichtblau's reporting (it hasn't been made public yet) -- has absolutely nothing to do with whether President Bush had the authority to order the very eavesdropping which FISA prohibited.  The ruling has nothing to do with whether the so-called "Terrorist Surveillance Program" was legal notwithstanding a Congressional statute that criminalized those activities.  The ruling has nothing to do with the scope of executive power or the ability of a President to act in violation of Congressional statutes.  And, contrary to Lichtblau's suggestion, it certainly has nothing to do with the constitutionality of telecom immunity, which is currently being challenged in the telecom lawsuits.

Instead, the FISA court appears (again, based on Lichtblau's description) to have addressed a very narrow (though important) question:  namely, whether the warrantless eavesdropping powers authorized by Congress in 2007 when it enacted the Protect America Act are constitutional under the Fourth Amendment.  The U.S. Supreme Court, in the 1972 Keith case, held that the Fourth Amendment prohibits warrantless eavesdropping on Americans' communications for domestic terrorism investigations, but explicitly left unresolved the question of whether such eavesdropping would be constitutionally permissible for international terrorism investigations.  The FISA court presumably said that Congress -- not the President, but Congress -- is constitutionally permitted to authorize such eavesdropping, as it did when it passed the Protect America Act, though it's likely a question the Supreme Court will ultimately decide.

None of that changes, nor even relates to, the fact that the Bush administration authorized and conducted warrantless eavesdropping for years while the law was crystal clear that anyone engaging in such activities was committing felonies.  That's a fact that is never going to change.


UPDATE III:    The confirmation hearing of Eric Holder for Attorney General is being held today.  Marcy Wheeler is live-blogging it with her standard thoroughness, and I have watched some of it (you can view it on C-SPAN3).  Holder stated emphatically that he believes waterboarding is "torture," which -- when combined with the confessions by both Bush and Cheney that they authorized it -- amounts to a statement from the likely new Attorney General that the President and Vice President committed both domestic crimes and war crimes.

Additionally, when pressed by Sen. Hatch to agree that there is a "good faith dispute" over the legality of Bush's NSA program and therefore nobody who authorized it should be criminally prosecuted, Holder refused to do so.  Instead, he said that while "policy differences shouldn't be criminalized," it's also the case that "nobody is above the law," and he would need to know more about what this NSA program entailed and how and why it was implemented before knowing whether criminal prosecutions were warranted.  He also said, in response to questioning from Sen. Feingold, that he does not believe there is any basis for the claim that the President, under the Constitution, had the authority to violate FISA.

The response about whether he would pursue criminal prosecutions for the NSA program was not the ideal answer, to be sure, but it's far less accommodating -- far less -- than the "let's-look-to-the-future-not-the-past" sentiments that have been pouring forth from the Beltway estabilshment and, to some extent, from Obama himself.


UPDATE IV:   The FISA court ruling described by Lichtblau's article is here (.pdf).  My speculation above as to what the court held was accurate:  it merely concluded that the warrantless eavedsdropping powers authorized by Congress under the (now-expired) Protect America Act do not violate the Fourth Amendment because, the court found, there is an exception to the Fourth Amendment's warrant requirement for foreign intelligence gathering.  It's a bad ruling (and should be reviewed by the Supreme Court), but it has nothing to do with the President's authority to override statutes generally or violate FISA specifically -- a power which the likely new Attorney General today said had no basis in law, which (at least in Holder's view) means that the President broke the law when ordering the NSA to spy on Americans without warrants.

By Glenn Greenwald

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