You Shall Know Us By Our Deeds

The Obama Administration is going to have to set a bright line on national security issues. I believe there will be plenty inside the national security and intelligence communities lying in wait to undermine him, so he'd better get out in front of this stuff. The illegal spying program, which he eventually supported and which is subject to several lawsuits by outside grouos, will be an early test.

“I don’t think President-elect Obama embraces Dick Cheney’s theory of unfettered presidential power,” said Jon B. Eisenberg, a San Francisco lawyer involved in one lawsuit against the wiretapping program. “So if President-elect Obama doesn’t embrace that theory, one would expect a change in the direction of how the new administration handles this litigation.”

But other legal and political analysts suggest that Mr. Obama, as president, may be more willing to accept the broadened presidential powers that he once condemned as a candidate, particularly since Congress has approved expanded surveillance powers for the government.

We've learned plenty more about the program since the passage of the FISA Amendments Act, that NSA personnel in Georgia were listening to and recording tens of millions of communications between NGOs and even military members. It's an unworkable, illegal waste of a system that needs to be liquefied, but I'm not optimistic that a chief executive would willingly give up power. We have to push him, and push the Congress to deliver investigations.

On the issue of charges for those who violated federal statute and international law through torture and detainee abuse, don't expect that to happen anytime soon.

WASHINGTON – Barack Obama's incoming administration is unlikely to bring criminal charges against government officials who authorized or engaged in harsh interrogations of suspected terrorists during the George W. Bush presidency. Obama, who has criticized the use of torture, is being urged by some constitutional scholars and human rights groups to investigate possible war crimes by the Bush administration.

Two Obama advisers said there's little — if any — chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.

Now, with respect to this, Obama is a little constrained by the Detainee Treatment Act, which makes it fairly impossible for anyone to be prosecuted for torture:

In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

The Military Commissions Act protects those who may have directed or authorized torture, although some feel there is a pathway to justice there. This is how official Washington buries the bodies - they make it impossible to seek justice.

At this point, the best practice would be to convene a Truth and Reconciliation Commission to get the facts revealed to the wider world. Otherwise, Bush Administration flacks can continue to spin their tales that they followed the law. Obama does seem prepared to do a version of that.

Obama has committed to reviewing interrogations on al-Qaida and other terror suspects. After he takes office in January, Obama is expected to create a panel modeled after the 9/11 Commission to study interrogations, including those using waterboarding and other tactics that critics call torture. The panel's findings would be used to ensure that future interrogations are undisputedly legal.

I hope that expands beyond just interrogation techniques to include who was detained and for what evidence. The stories of child soldiers at Guantanamo are sickening.

I've said often that a failure to act is a de facto pardon for war crimes. I respect any care and attention that would be put into getting the policies right going forward, but denying justice makes a mockery of the rule of law.

...Melvin Goodman has more, and a lot of it is disturbing.

President-elect Barack Obama is sending conflicting signals on whether he intends to change the bankrupt culture of Washington's intelligence community and to introduce genuine reform to the Central Intelligence Agency.

He appears to be ready to remove the top two intelligence officials, Director of National Intelligence Mike McConnell and CIA Director Michael V. Hayden - both retired general officers - which suggests Mr. Obama recognizes the need to change the military culture of the intelligence community. But he also has placed the intelligence transition process in the hands of two senior cronies of former CIA Director George J. Tenet: John O. Brennan and Jami A. Miscik, who were actively engaged in implementing and defending the CIA's corrupt activities during the Bush presidency.

...Mithras makes some excellent points here. The combination of Congress writing immunity into most of the most outrageous conduct of the Bush Administration and top Democrats' complicity makes it exceedingly unlikely that Obama would be willing to essentially give up his entire first term working on putting everyone in jail. I think he gets overly broad in indicting liberal bloggers for having poor political sense, but basically this is the problem - more so when you have a natural conciliator leading the party. There's room for public pressure around a fact-finding commission, however.