(updated below - Update II - Update III)
Whatever else one thinks about the debate over investigations and prosecutions for Bush crimes, there is no question that huge numbers of Americans -- likely majorities -- favor them. And that was true even before the release of the most graphic and stomach-turning evidence yet: the 4 DOJ memos released this past week which describe the torture in detail. The assertion that "most Americans" don't want investigations -- whether made by media stars to argue against investigations or Obama supporters to justify the immunity the President wants to extend to everyone involved -- is factually false.
A USA Today poll from February -- headlined: "Poll: Most want inquiry into anti-terror tactics" -- found "two-thirds of those surveyed said there should be investigations into allegations that the Bush team used torture to interrogate terrorism suspects and its program of wiretapping U.S. citizens without getting warrants," and "four in 10 favor criminal investigations." A Gallup poll from mid-February found that between 60 to 70% of Americans favor investigations for torture, warrantless eavesdropping and DOJ politicization, and that majorities of Democrats (and more than 40% of all Americans and independents) favor criminal prosecutions. Only small percentages of independents -- between 25-38% -- oppose investigations for each of the three lawbreaking allegations. A Washington Post/ABC News poll from January similarly found that a majority of Americans (50-47%) -- and an overwhelming majority of Democrats (69%) -- believe that the Obama administration should investigate whether the Bush administration's treatment of detainees was illegal. While polls can vary based on how the questions are asked, every poll shows substantial percentages favoring investigations.
These facts about public opinion are virtually always excluded from establishment media discussions, and those who advocate investigations and prosecutions -- the view held by large percentages, if not majorities, of Americans -- are virtually never heard from. That's because the belief that elites should be exempted from all consequences when they break the law is as close to a trans-partisan religious tenet of Beltway culture as it gets.
Consider yesterday's Meet the Press panel discussion of this issue involving David Gregory and five exceedingly typical Beltway insiders -- The Washington Post's Steven Pearlstein, Fortune's Nina Easton, Time's Rick Stengel, former GOP House Majority Leader Dick Armey, and former "moderate" Democratic Rep. Harold Ford Jr. That's three ostensibly non-partisan journalists, a right-wing fanatic, and a New Republic/DLC Democrat from Tennessee whose career was built on proving how much he embraces GOP policies -- that's called "diversity of views" in Establishment Media World.
Exactly as one would expect, they were all in full and complete agreement that there must be no investigations or prosecutions. There was not a syllable uttered that political officials should be treated the same as ordinary Americans when they got caught breaking the law. As always, only the suffocatingly narrow Beltway consensus is heard in our political debates, even when huge percentages of Americans reject it:
ARMEY: "Forget about--why are you talking, smacking George Bush around now? Look for the future."
STENGEL: "[Obama] is very Mandelalike in the sense that he's saying let the past be the past and let us move into the future."
FORD: "Look, I think the president said it best . . . He said look, the past is the past, let's move forward. . . . After September the 11th we asked men and women in this country serving in our military and our intelligence agencies to go out and find bad guys. I'm always a little hesitant afterwards when we try to judge the kinds of things they did. "
EASTON: "I was just going to say that he clearly wanted to put this behind him, or behind the country, by releasing them. . . . Dennis Blair, the director of National Intelligence, said in, in one very telling quote, "It's very easy to look back on this safe, warm April 2009 day and second guess a lot of these decisions."
What a vibrant, spirited debate that was. And the way they all harmoniously recite the same White House Orwellian script -- look to the glorious future, citizens, for that is where your salvation lies -- is almost as creepy as the OLC torture memos themselves. Too bad for the 2.1 million Americans in prison -- the largest prison population on the planet -- that the profound sense of forgiveness exuded by Obama and our Beltway elites only seems to apply to themselves, and especially to Bush officials who systematically violated the law. For ordinary citizens caught in America's criminal justice system, mercy and understanding are the rarest commodities one can imagine. Perhaps it's time to begin a FREE BERNIE MADOFF campaign based on Obama's oh-so-moving decree that this is a time for reflection, not retribution, and that we must look forward, not backwards.
Last week, the UN Special Rapporteur on Torture, Manfred Nowak, argued that Obama's pledged immunity for CIA officials who tortured detainees violates international law and our treaty obligations -- and the clear language of both the Geneva Conventions and the Convention Against Torture seem to leaves no doubt about that. Other legal experts have made the same point. And that was argued before Rahm Emanuel said yesterday that the immunity applies not only to the torturing CIA agents but also the Bush officials who designed the torture policies. How are those who spent the last eight years venerating international law, our treaty obligations, and U.N. pronouncements going to justify that? As the early, vigorous Obama supporter Andrew Sullivan put it today:
And so Obama's refusal to investigate war crimes is itself against the law. And so torture's cancerous route through the legal and constitutional system continues, contaminating the future as well as the past, rendering the US incapable of upholding Geneva against other nations, because it has violated Geneva itself, and giving to every tyrant on the planet a justification for the torture of prisoners.
In this scenario, America becomes a city on a hill, where the rule of law is optional and torture acceptable if parsed into legal memos that do not pass the most basic professional sniff-test.
America becomes a banana republic.
Despite Obama's desire to extend immunity beyond CIA agents to Bush officials, Digby notes that credible reports now suggest that "Attorney General Eric Holder Jr. is seriously considering appointing an outside counsel to investigate whether CIA interrogators exceeded legal boundaries—and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place."
It's worth remembering that the decision of whether to prosecute is not Obama's to make. We are supposed to have an independent Justice Department which makes descisions about prosecutions free of the type of political influence Obama and Rahm Emanuel seem eager to exert on the decision-making process. That, one might recall, was the crux of the various Alberto Gonzales scandals -- that he was making prosecution decisions based on the dictates and interests of the White House rather than apolitical legal considerations. One could actually argue that Obama's opinion about who should and should not be prosecuted is entirely irrelevant. The Attorney General has the independent obligation to make those decisions without regard to the President's political wishes. Either way, at this point, given how aggressive Obama has become about demanding that there be no prosecutions, it seems clear that only a Special Prosecutor can discharge that duty.
Contrary to the debates which the establishment media presents about these matters, there is clearly a very substantial portion of public opinion that wants investigations. Beltway mavens love the idea that Beltway elites have exemption from legal consequences, but -- for obvious reasons -- that is not an idea embraced by many Americans. These latest revelations, and the ones to come, can be used to expand and channel this substantial public opinion to pressure Holder to ignore Obama's wishes and instead act in accordance with basic legal principles that compel equal treatment under the law, rather than the two-tiered justice system (legal immunity for political elites) that is becoming increasingly undeniable by the day.
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Here is one online commentator, sharing his views about the Obama/Emanuel approach of calling for "refleciton, not retribution" and "looking to the future" as a reason why war crimes should be forgotten and the high-level criminals immunized:
UPDATE: My podcast interview with CQ's Jeff Stein, the reporter who wrote the story on Jane Harman, Alberto Gonzales and AIPAC, is now posted at the bottom of my post from earlier today on Stein's story.
UPDATE II: As Think Progress notes, White House spokesman Robert Gibbs today was forced explicitly to acknowledge that the architects of the torture policy are "not being held accountable." Gibbs, too, recited like some religious chant the increasingly compulsory mantra that we must "look forward, not backwards." The President can look as foward as he wants. Nobody needs him to prosecute. They can just appoint a Special Prosecutor with the mandate to follow the law, and then Obama can spend all of his time contemplating the future.
Credit where it's due: CNN's Ed Henry did a good job of asking these questions:
UPDATE III: More on the very important (and overlooked) duty of the responsibilities of the Attorney General to make decisions about prosecutions free and independent of the political desires of the President, from Newsweek's Mike Isikoff, with Rachel Maddow: