Step Into Marcusland

I finally got around to seeing Taxi To the Dark Side, the Oscar-winning, Peabody-winning documentary that looks at the death of an Afghani cab driver in US custody at Bagram Air Base and expands out to study American detainee policy during the war on terror. There's nothing in there that you didn't know if you've read the articles, the magazine profiles, the books and the official reports about our torture policy. But it's laid out in an almost lawyerlike fashion, a brief for the crimes committed in our name since 9/11, crimes that do make Americans and (especially) American troops less safe, extract misleading and frequently wrong intelligence, and debase us all by acting contrary to American values and principles and lowering our moral authority throughout the world.

These are the crimes that Ruth Marcus wants us all to ignore, by acknowledging that people like Don Rumsfeld and Dick Cheney were doing their level best to keep us safe, and whether they ignored federal law and international conventions in the process should be overlooked. Despite the fact that, just this week, a Senate Armed Services Committee report emphatically charged top officials inside the White House with creating the conditions for and authorizing the practice of torture in Afghanistan, Guantanamo, Abu Ghraib and secret CIA prisons abroad, according to Marcus (and I would imagine the bulk of the political establishment) these crimes should be ignored, not because they weren't illegal but because of who the people were that conducted them. This is what Marcus brushes aside:

It said these top officials, charged with defending the Constitution and America’s standing in the world, methodically introduced interrogation practices based on illegal tortures devised by Chinese agents during the Korean War. Until the Bush administration, their only use in the United States was to train soldiers to resist what might be done to them if they were captured by a lawless enemy.

The officials then issued legally and morally bankrupt documents to justify their actions, starting with a presidential order saying that the Geneva Conventions did not apply to prisoners of the “war on terror” — the first time any democratic nation had unilaterally reinterpreted the conventions.

That order set the stage for the infamous redefinition of torture at the Justice Department, and then Mr. Rumsfeld’s authorization of “aggressive” interrogation methods. Some of those methods were torture by any rational definition and many of them violate laws and treaties against abusive and degrading treatment.

These top officials ignored warnings from lawyers in every branch of the armed forces that they were breaking the law, subjecting uniformed soldiers to possible criminal charges and authorizing abuses that were not only considered by experts to be ineffective, but were actually counterproductive.

Marcus somehow rationalizes her leniency by claiming that the important thing now is to "make sure this never happens again," not to prosecute the crimes of the past. And yet, as Glenn Greenwald lays out in only the way he can, only through prosecution can we deter top officials from this behavior. The laws are already in place. The determinations about liberty and security have already been made. If Bush officials are allowed to go free, like the many White House officials before them in Administrations past, what becomes learned behavior is that high crimes at the executive level will forever go unpunished. Here's Glenn:

...one of the two principal reasons we impose penalties for violations of the criminal law is deterrence -- to provide an incentive for potential lawbreakers to refrain from breaking our laws, rather than deciding that it is beneficial to do so. Though there is debate about how best to accomplish it and how effective it ultimately is, deterrence of future crimes has been, and remains, a core purpose of the criminal law. That is about as basic as it gets [...]

Punishment for lawbreaking is precisely how we try to ensure that crimes "never happen again." If instead -- as Marcus and so many other urge -- we hold political leaders harmless when they break the law, if we exempt them from punishment under the criminal law, then what possible reason would they have from refraining from breaking the law in the future? A principal reason for imposing punishment on lawbreakers is exactly what Marcus says she wants to achieve: "ensuring that these mistakes are not repeated." By telling political leaders that they will not be punished when they break the law, the exact opposite outcome is achieved: ensuring that this conduct will be repeated [...]

A central observation in Marcus' column is that the controversies that have now arisen over Bush lawbreaking in the areas of interrogation and surveillance are not new. As she points out, these are the very same controversies that we've been confronting for decades.

That's exactly right. The same controversies over government lawbreaking arise over and over. And why is that? Because our political leaders keep breaking the law -- chronically and deliberately. And why do they keep doing that? Because there is no deterrent against it. Every time they get caught breaking the law, the Ronald Reagans and Ruth Marcuses of the world step in to insist that they should not be punished, that the criminal law is not for elite leaders in political office, that those involved in the noble function of ruling America are too intrinsically well-intentioned to warrant punishment even when they commit crimes, that it's more important to look forward than back.

And those who committed these crimes clearly know this. That's why we're seeing Dick Cheney practically boasting about torturing terrorists, having the audacity to call it the moral thing to do. In doing so he makes the same argument as Marcus; that he was doing whatever he could to protect the country from attack, and in those situations, the law does not apply in the same way, and nobody should suffer opprobrium for doing what he thought was right, as if the law is now subject to personal conceptions of right and wrong rather than the federal statutes and written code available to everyone. The lies that torture yields valuable information and saves lives
notwithstanding, what Cheney is saying goes as far as Richard Nixon's famous statement "If the President does it, then it's not illegal." Essentially, his plea is that "if I think it's necessary, then it's not illegal."

This is how we get to the point that the Vice President decides that he has the sole determination for what records he must release to the National Archives, which to some may seem like a smaller point, but is symptomatic of the same pathology - that the laws don't apply to him unless he decides they do.

"The vice president alone may determine what constitutes vice presidential records or personal records, how his records will be created, maintained, managed and disposed, and are all actions that are committed to his discretion by law," according to a court filing by Cheney's office with the U.S. District Court on Dec. 8.

Cheney is being sued by Citizens for Responsibility and Ethics in Washington, a government watchdog group that is trying to ensure that no presidential records are destroyed or handled in a way that makes them unavailable to the public.

The 1978 Presidential Records Act requires all presidential and vice presidential records to be transferred to the National Archives immediately upon the end of the president's last term of office and gives the archivist responsibility to preserve and control access to presidential records. The law ended the tradition of private ownership of presidential papers, opening White House records to the public and historians.

So here we have a Vice President who has no problem torturing, wiretapping on American citizens, detaining suspects without charges for years, rendering others to countries we know torture, outing CIA agents for political retribution, eliminating habeas corpus and nullifying the Geneva Conventions, and he gets to shred every document he ever wrote and paper over this shameful history. Meanwhile, those brave enough to speak out about these offenses upon the Constitution and the dignity of the office are harassed without end, with their lives nearly destroyed, for intending to uphold American law. This is the topsy-turvy dynamic we have in a country where accountability is removed at the highest levels. This is Marcusland.

As Digby notes, this is a self-perpetuating cycle that insures those Republicans who get back in the White House are more radicalized and more contemptuous of US law because there is no consequence to the radicalism.

In fact, I have long argued that most of the past 35 years have been one long, horrific orgy of undemocratic political thuggery and conservative usurpation of the constitution. They get caught, they suffer some temporary public disapprobation, people like Feldt are caught in strange moral quandries, we define democracy down, but there is never any official sanction. It's become so common that we now this as a natural part of our politics --- the Republicans seize power, they use it in illegal and undemocratic ways, they are exposed, the Democrats win, they fail to hold them accountable and the cycle starts again. (Why, if we didn't know any better, we might think they were all in on it together! Heavens...) [...]

This all began with Nixon and the pardon, in my opinion. Many of us, myself included, believed as Marcus and Taylor still do, that forgiveness is a good thing, that the country needs to heal after a tumultuous time and there is no purpose in dragging people through the mud. But I was wrong then and they are still wrong today. How many times do we have to be hit over the head with this stuff before we realize that these people are getting more and more radical with each successive bite at the apple?

This time around, the depth of the radicalism, the breadth of the war crimes, are so astonishing, that at least some circles are arguing that war crimes prosecutions are necessary to offer resistance to this lawlessness. Unfortunately, most of these rumblings are coming from the same people that have consistently argued the need to speak up and reject war crimes, and clearly the establishment has no taste for it. What's more, the Democratic leadership has been in various ways complicit in many of the crimes and certainly willing to enable the cover-up; in the Military Commissions Act, there are explicit instructions to pardon the President and his top officials for any crimes committed in detainee treatment from 9/11 to the present and to continue the CIA detainee program that we know to be criminal. But in the absence of any attempt at prosecution, or at the very least a Truth and Reconciliation Commission, this doctrine will be the lasting legacy of not only this Administration but all of those in the future, and we will have lost our democracy.

On Fox News Sunday today, host Chris Wallace asked Vice President Cheney, “if the President, during war, decides to do something to protect the country, is it legal?” “I think as a general proposition, I’d say yes,” replied Cheney.