The Atlantic's coverage of the first 100 days of the Obama presidency begins next week, assuming the geeks don't rise. But this blog will focus on the second 100 days. I've been trying to figure out what the White House is using as an internal frame -- and what they'd like to see as the end result. In the end, it's fairly simple. And it explains why the White House is publicly and privately resisting a new investigation into the past.
Opening the reporter's notebook after a week of confusing reports, here's what I think the White House is thinking:
First -- set up the 2nd 100 days. Act as if the approval rating is dangling.... act as if it will inevitably decline... and so -- rush, rush, rush. get as much done as possible -- particularly on health care. Don't pick unnecessary fights with the Democratic base, and use every arrow in the West Wing quicker to keep labor happy. Use the fury of Rahm to keep Democrats in Congress focused on policy. Do the heavy lifting on policy now. As for the president himself: lift him up. Keep him in front of moderate and independent audiences. Work on the Big Picture and America's image in the world. Worry about Afghanistan and Pakistan. Give Israel some tough love on settlements. Do NOT take on unnecessary battles.
Now then -- it's clear why Obama never wanted a torture commission, or some sort of a special counsel for torture -- or anything like that. Wait -- how did I manage to transition to this subject without transitioning? "Unnecessary battles." Obama said it many times during the campaign: as president, he did not want to refight the ideological and policy battles of the past eight years. Obama won't go there. That's not where he's at. He is not sentimental. He He does not want Democrats to bog themselves down in an orgy of masturbatory vengeance-- that's my phrase, not his. He is also the president. He cares about precedent. (I'm told that in the internal deliberation about whether to release the OLC memos, Obama asked his interlocutors about precedent -- what future presidents like Mitt Romney (I don't know if he actually used Romney as an example) would do with the secrets of the Obama administration.)
As a constitutional law scholar, Obama knows he can't tell the Attorney General whom or whom not to prosecute; he doesn't want to influence the DOJ OPR reviews; the White House messed up the comms on this one, but their position never changed. Holder never wanted a special prosecutor either; during the transition, he and Obama explicitly discussed this subject and they found that they agreed with each other.
Obama also knows that the torture issue is bound up with many other sensitive intelligence practices, like extraordinary rendition, immigration detention, battlefield interrogations, surveillance and the authority to order the murder of terrorists. He knows that the OLC memo release risks the release of the wagon. Here, he weighed transparency, precedent and national security and struck the balance he finds appropriate.
Holder and Obama also know that the ultimate decision to prosecute will be Holder's, and it will arise from facts not yet in evidence. Holder cannot order his U.S. Attorneys to refuse to accept evidence that interrogators, particularly contractors, deliberately violated the OLC guidelines. If the OPR review finds that DoJ lawyers willfully engaged in misconduct to justify obviously illegal practices, then Holder may not have a choice. (If he did, he wouldn't. But he might not.)
So Barack Obama doesn't really care about John Yoo. Yoo's fate is out of Obama's hands. Having Congress spend the 2nd 100 days of his presidency talking about John Yoo means that Congress won't be focused on health care, energy, the environment and education. The White House brain trust genuinely believes that the midterm election craze will stymie policy-making in the fall of 2009 and in 2010. It knows that it is going to have to fight tough national security battles with its own party by the end of the year. So it is setting priorities.
Please send along your comments. Is this what the White House should be doing? Are they shirking their responsibility to hold the Bush Administration accountable?
While Obama's desire to avoid distracting from his larger political agenda is understandable, he's wrong if he thinks the issue of torture is going to go away anytime soon. The genie's out of the bottle now, and justice must be served. Transparency is meaningless if it's not followed by accountability.
(And on another note, regarding your "6 Clicks" section: linking to RedState, Jennifer Rubin, and PowerLine? My, that's certainly running the ideological gamut.)
If you wanted to go after the highest members of the previous administration but you didn't want it too look like that was what you were doing, what would be the best way to do it?
I think Obama is looking to create an environment where it look like he was forced to something he wanted all along.
Libertarian/conservative Barry Goldwater kinda guy here. I simply do not get why people don't understand the gravity of what was done in our name and how dangerous *not* dealing with it is to the future of the republic. No democracy that endorses torture can expect to survive long as a democracy. Sully is dead right on this issue and has been since the start. The people who wrote the policy and those who drove them to do it need a date with the justice system lest we truly do become a nation 'run by guys in mirror sun glasses'. As to those who carried it out? 'Just following orders' was invalidated at Nuremberg. As a retired Army guy I can tell you that this was all drilled into us on an annual basis.
This is America guys, I can't even believe that we're having a discussion on this...
JT
What would you rather have? Universal Health Care or prosecution of the Bush Administration? What will ultimately be better for our country? And choose wisely, because you only can do one.
The second you start prosecuting that will suck all the political oxygen out of the air, and that will be all that gets done.
The Bush Administration is not the fundamental issue here; the fundamental issue is the rule of law and Bush Administration accountability is the means to that end. If there is no investigation and prosecution when the government engages in illegal surveillance, illegal detention, and torture, there is no deterrent to prevent any future American president from imposing a reign of terror. Holder has no higher duty than to investigate all of these questions, because if they are not deterred the American constitutional form of government is dead.
Obama is shirking his duty to uphold the rule of law when he calls for the country to move on without an investigation and prejudges who may be subject to prosecution. It may not be his responsibility personally to conduct the investigations, but it is his responsibility to express clearly and unequivocally his expectation that his Justice Department investigate these matters fully and uphold the rule of law no matter where it leads.
Look, the standard political wisdom is that if there is another mass casualty attack on U.S. soil, all of this genuine moral angst will be superseded by the necessity to safeguard the country once again. But what if there is not one big attack but just...indications, here and there, intercepts of plans, a few Islamist radicals around various mosques interviewed, ancillary people under surveillance, info leaked, small business people engaged in suspicious transactions, etc. piling up in the intelligence dossiers. What then? What is the body politic to make of a possible storm brerwing on the horizon...do the authorities hew to the higher principles of justice, or delay and softpedal resolution of fundamental values because the potential grave dangers of the future beckon. Again the argument will be made that we must err on the side of preserving security at the expense of fundamental values. I don't want to sound like a pig but, under conditions of higher uncertainty, I will not give a damn about turning a blind eye to torture once again.
Yes, accountability for these indefensible violations enacted in our names is crucial for our nation. But Truth Commissions remove accountability, as they usually depend on some sort of guaranteed immunity for witnesses, etc.
The rule of law, acted upon with deliberation and care, is a far better guarantor of accountability...and there's plenty of time before any statute of limitations for Obama to focus on moving forward on policy, enable a thoughtful release/discovery process for necessary information relevant to criminal charges where appropriate. He already has Cheney calling for increased transparency and the release of files!!!
What feels unbearably slow and uncertain to us may be the most direct and complete way to achieve the kind of accountability that in the end will lead to the strongest cleansing of this infection and the best prophylactic against future abuses: Criminal investigation untainted by the appearance of partisanship or witch-huntery, and the resultant restoration of Constitution and equality under the law (and the forswearing of torture) to their rightful place at the heart of our shared national identity.
I do not think that Obama is shirking his duty, and I respect what he's trying to do in walking this tightrope between maintaining the rule of law and getting on with his agenda. Unfortunately, this issue is so big and so important to the country's identity and safety, and the feelings are so strong, that I doubt that he's able to keep it in the box. Next week we'll get the results of the Gallup poll on Bush's detainee record. My guess will be that the number of people who want this investigated will be way up. I think the administration must use its smarts to figure out how to walk this tightrope without creating too much distraction from his agenda. It seems that they have exercised admirable control so far in not pushing back as much as they might to the Cheney/ McCain type messaging. And when the DOJ investigation result comes out, that will probably lead to another shock wave.
In short, I think that he did the right thing to release the memos, underestimated what the response would be, is trying a mid-course correction to throw it over to the Justice Dept. and still, as details come out, I doubt that he'll be able to sidetrack an investigation. So the work the team should be doing now is to figure out what kind of investigation (other than what DOJ will have to do) they could accept and that wouldn't derail their agenda, and be prepared to work for that.
That's very much it. Can't see a way around an investigation... I wish it wasn't happening but, as the Post put it, gotta be 'dealing with disgrace.'
I tend to agree with Bonneville.
It's not that Obama really wants to go after Bush and Co. He'd much prefer to concentrate on his important agenda in his first year. But he's a civil rights lawyer and a constitutional law professor, and one who made much of the rule of law during his campaign.
As such, he understands that if there is a preponderance of evidence, investigations and prosecutions must take place. He wants to do it in the least politically distracting and damaging way possible - through the Justice Department, instead of through Congress.
He is distancing himself because he doesn't want to appear to be vengeful. He wants to try to maintain some measure of bi-partisanship in the Congress on upcoming issues where it might be effective, such as health care. And naturally he sees how investigations into previous administrations can be abused in the future, and that this could set a precedent that might come back to bite him.
Nevertheless, I don't believe that he has underestimated the impact of the recently released documents and pictures. Although much of this has been in the public domain, never have I seen wall-to-wall torture coverage on the cable news channels, and it is coming to the fore now for the public who hasn't read the books. I think he's playing with both hands as usual: understanding the inevitability of the upcoming war crimes investigations, he's allowing the public and media outcry to build so he can bring the population with him on this difficult journey, while appearing to not want to go on it at all for political reasons.
"Having Congress spend the 2nd 100 days of his presidency talking about John Yoo means that Congress won't be focused on health care, energy, the environment and education."
That's why each house of Congress is divided into committees. Having Messrs. Conyers and Leahy conduct investigations into the DOJ, for example, won't interfere with those other things, even though it might get more time on the evening news.
In reply to Caracalla'sAmanuensis...
The thing to keep in mind here we we are talking about our own freedom, not some abstract concept. I will not even discuss the pragmatic merits of using torture, there are none to discuss. The key point in all of this is that our entire system of justice depends on attempting to find truth in as impartial a manner as possible. Torture is the antithesis of that philosophy as it's sole purpose is to elicit confession, true or false. The pros know this and as a result *do not use it*. Damn, there I go getting pragmatic when I said I would not... Can you envision a bright and shining line between the treatment of citizens and the 'other'? Bush and company certainly did not. YOUR FREEDOM IS AT RISK UNTIL THIS IS DEALT WITH. Remember what Franklin taught us:
"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
JT
To Mr. Tyler,
I am not a torture fan and I did not say that I actively support torture, just that, in reality, under conditions of high stress, I believe I would ignore allegations of torture. This is in keeping with the majority of the public I believe, as shown in the recent Rasmussen poll. In any large complicated organized effort such as the nation is and will be running to interdict the terrorists there will be many gray areas where questionable action takes place...maybe investigators will have to chase down suspects in some urban jungle and the arrest is accompanied with a bang of the head against a wall...maybe in putting the squeeze on an informant or reluctant witness, intimidation is used...these are normal police tactics in our cities today and there are hundreds of imaginable instances and scenarios where there might be a gradation at some point into some kind of torture. I don't like it, so it is good to have this debate.
One last point that no one mentions. In prosecuting war, a regrettable necessity as with the escalation in Afghanistan and perhaps in other theaters as well, combat operations involve the use of high explosives and incendiaries that very often kill and maim civilians. Even enemy combatants may be only part-time or ineffective fighters, or motivated by nationalism rather than culpable terrorist motives, but their destruction is accepted. All these people can suffer traumatic amputations and gruesome blast and burn injuries in the field, regardless of how innocent or culpable they are, without much of a moral debate. But aren't the injuries they suffer a kind of torture? We are too quick to make a moral distinction between the vagaries of war and the victims war creates on the one hand, and deliberate torture techniques applied while in captivity or interrogation. As far as imposing gratuitous pain is concerned, war seems to account for the lion's share...so why do we cringe so much at torture? It's a matter of familiarity...just as the public accepts 30.000 yearly auto accident fatalities but would freak out at a few deaths from nuclear reactor accidents, so we accept the 'fog of war' and the 'hell of war' as rationalizations for human suffering in that context but then act very squeamishly about torture.
Marc,
This is an important topic. Thanks.
Attorney General Holder and President Obama are acting kingly and unAmerican if they think they are "The Decider" when it comes to prosecuting people who torture.
The truth is that under American law the people must decide via a grand jury and a petite jury.
There are a significant number of us who worry that it won't matter much whether the country has health care if it has no limits on arbitrary executive power and no moral compass. The behavior of the Bush administration convinced us that we can't take those things for granted.
We may be a minority (or not), but we won't give up pushing our rulers to use the perfectly adequate legal path to determine whether crimes have been committed. That behavior is simply "citizenship," something elites are always ambivalent about.
The fall of 2009 for mid term election fever? I doubt it. While I don't disagree with the basic premise that Obama doesn't want to turn his second hundred days into torture investigation central, I don't think he has a lot of problem with a steady trickle of damning information about the Bush admin. The extent to which these memos and that Senate report damaged the reputation of Bush and Cheney is not to be under-rated. Ultimately, as you point out the decision isn't his, it's Holder's and congress's. Basically he can rein congress in if he wants to and he clearly exercised that option over the last couple of days. With the DOJ he just leaves it to them, claims it's a matter of law, as it is, and stays above the fray. Remember Obama, as all these polls this week show, is the most trusted man and institution in the country. Furthermore he has control of all the information, govt agencies and sources so he can control the flow of info that is revealed. Given these circumstances, why the GOP has chosen to cast itself in the role of torture defender on the basis that "it worked" and is employing as its chief spokesmen Cheney, Rove and Gingrich, three of the most distrusted men in the country, is a mystery. They cannot win this argument. Even worse it ties the GOP ever tighter to Bush/Cheney and the past eight years. In short it's suicidal but then they seem to be doing a lot of suicidal stuff just lately. It's hard to predict how it will play out but I wouldn't be surprised to see some prosecutions or censure of some kind. Either way what has happened so far has inflicted mortal blows on the reputation of the Bush admin, it's getting to Nixonian proportions, and of course the careers and professional reputations of people like Bybee and Yoo. These folks are never going to be come judges, Bybee might have to resign, or pick up prestigious chairs at top universities. They'd also be wise to avoid foreign holidays and conferences.
There is some argument that these torture tactics worked in some cases and it helped American Security in certain ways; hence demand by Cheney that more documents be released too. Hard Republicans / Cheney type will like to argue that there are cases when such torture is the only way to secure Americans. It is the famous Jack Bauer (Fox TV Serial 24) hunting the nuclear bomb in LA scenario. It is not far to imagine that Obama will have to face such assertions head on and say that:
- America will essentially learn to live without such ‘crude and unacceptable’ weapons (torture) to secure herself; and
- America will be smart enough so that she does not land up in a situation where torture by Jack Bauer is the only way to get information about a nuke in American city. In that sort of scenario being smart on borders (Obama initiative of checking cargos at port for example) will nip the danger in bud.
Primarily Obama will have to engage in the dialog with Americans where he tells American that a narrow debate about ‘utility of torture’ misses the larger set of arsenals which we have forgotten to use and the usage of which in the end will make America safe.
Beyond that should ‘torture talk’ be part of Obama’s discourse? No. He is wise to conclude that any Administration initiated Truth Commission or some similar dispense will no doubt come at the cost of his larger policy agenda.
True, this issue is big and the genie is out. We also realize the gravity when Andrew Sullivan says ‘democracies die when tortures are justified by the State’. But does the State end at White House only? What about courts and public prosecution? It is well known that Congress has the proclivity to get engaged in any such grand standing topics where they can ditch their more mundane tasks of governance and budget passing. But that will again be the loss for Obama policy agenda. True, certain involvement from the Congress is inevitable. But it is not required for the White House to take an initiative in these matters.
The simple reason is Obama is elected to fix our economy and to reject stupid foreign policy pursued by his predecessor. Neither had Obama campaigned on the plank of Truth Commission nor did American public vote him to create America’s version of Nuremberg trials. That is the essence of the democracy – folks get votes, folks get elected, folks become rulers and rulers start using their mandate. The ‘heart’ of the democracy is that the mandate is used primarily for the purposes for which it was granted by voters in the first place. No one is saying that elected politicians can shirk away from constitutional responsibilities which they inherit. But at the same time elected politicians owe to their voters that they do not start the flame which grows into all consuming inferno. George Bush did precisely this mistake – in the name of securing Americans he started the enormous project of Iraq. Obama is trying to be responsible here and trying to stick to his mandate.
Americans can very well say that they have changed their minds and majority would like to investigate torture further and punish the culprit (expected Gallup poll next week). But, well, this is an election based democracy where elected ones have to rule with whatever their mandate obtained in the last election. Even if majority wants something else, they will have to wait until next election comes around.
http://www.21stcenturypolitics.com/
I do not think that Obama realized that there would be unintended consequences when he released the memo's. Perhaps a little hubris, over confidence mixed with personal satisfaction that he was able to score points on the Bush administration.
However, it is very clear that he did not realize that he would be dragging Congressional Democrats in as well. Also, if the US Government uses American subcontractors for these interrogations, and that is deemed immoral, then certainly using foreign subcontractors (who use methods that are much harsher than the ten "enhanced" methods) is just as immoral, right?
Which means we need to go after any administration figures that approved extraordinary rendition, right? So we need to have a criminal prosecution that includes Bill Clinton, Al Gore, Leon Pannetta, and others, right?
Under the rule of law, you can not contain this to just one administration - this would be an investigation of the executive branch, and all members going back to at least 1995. Think about how many members of Obama's administration would be subject to arrest and prosecution - start with his current DCI, who was Chief of Staff for Clinton. How about Dick Holbrooke, think he knew what Clinton policy for detainees in the Middle East was? How many staff officers in the US military were involved in the logistics? How many of them were Majors and Light Colonels in the mid nineties, and are General officers now?
The executive branch, from time to time, does things in the prosecution of war that some people feel are wrong, and that some people feel are necessary. Lincoln suspended Habeas Corpus, and no one from his administration was punished. I think that there is good reason for this - it is hard to investigate an administration with out it turning into an investigation of the executive in whole, and then the whole sweater unravels.
Now in regards to Yoo, and why Obama wants to move on - this has turned into the worst possible situation for a guy who values control like Obama does - it's a no win situation that he can no longer control. You have people like Hoekstra and Goss driving the discussion, not to mention Cheney. The only way to get it back under control is to change the subject.
If this was going to be a winner, Obama would stay on it (what politician changes subjects away from a winning topic?). And if Yoo wasn't going to be important, than why was Bybee?
I know that the Obama administration is spinning hard to Ambinder and other journalists that - excepting a "comm" mess up - this has gone down just the way they wanted it. However I just can't see how Pelosi flustered, Hoekstra, Cheney and Goss driving, and the left calling for investigations that would ensnare members of his own administration is "exactly how they wanted it".
Chalk this one up to some hubris, over confidence, and maybe some spite towards the previous administration.
"I do not think that Obama realized that there would be unintended consequences when he released the memo's."
....Are you kidding. The one thing we've learned about this administration is that they take their time and analyse stuff before making their move. Even when it hurts them viz Geithner's tarp plan. The notion that this wouldn't be a huge hot potato is bizarre. I've no doubt Obama is quite happy to see the previous admin's reputation for decency and integrity shredded and I'd say he's quite happy to see it take the form of death by a thousand cuts. I don't see Pelosi "flustered" she just told it as it was. The admin came down and told us stuff, they didn't consult with us, they informed us and we couldn't say anything about it because it was classified. This latest Republican parlor game that says because four democrats didn't stop us it's all their fault is creative even for them. As for Cheney and Goss two of the most discredited and distrusted men in the country being the advocates of the pro torture position, this surely has to be music to the admin's ears. What cdm and others on the right don't get is this trying all these people in the media and the longer it goes on the worse it gets. This is destroying the professional reputations of these people. A senior jurist approving torture, are Yoo, Bradbury et al ever going to get prestigious chairs at leading universities or become judges. Of course not.
"The one thing we've learned about this administration is that they take their time and analyse stuff before making their move."
That sentiment seems to be the conventional wisdom about Obama that his administration and campaign have pushed.
However, I am not convinced that this is always the case.
I do believe that he underestimated the ability of others to supercede him and start driving the conversation on the issue of these memo's. The last few days, the discussion has been driven by Congress, and even though Obama professes that he would like to move on, Congress has not played along, nor has the media.
On a more important point, what has been the net benefit in an area like rural Pakistan, where the policy of the Obama administration seems to be that the US will continue to kill suspected terrorists with Predator strikes; Interrogators who used enhanced techniques on your fellow Muslims are not to blame; elected officials who knew about the enhanced techniques are not to blame; but the mid level attorney who wrote a memo is the guy to blame for the mistreatment of your fellow Muslims? And you think blaming a paper pushing attorney is going to go over well in Pakistan?
You seem to be of the opinion that you should speak truth to power, yet you would get a lot more respect if you were also willing to speak truth to the Democrats who are culpable. Is Pelosi more culpable than members of the administration? No, but she is just as culpable if you believe someone should be punished. Congress doesn't exist to give a rubber stamp for the executive. Furthermore, you seem awful willing to give a free pass to members of the Clinton administration who exported torture. It is hard to be principled when your umbrage is partisan.
But back to the main point - for a guy who is supposedly a master of control - he has lost control of this. You are absolutely right that he wanted to score points against the previous administration. However, that is not what he was elected to do, and he failed to take into account that there are multiple stakeholders on the issue of torture, and they do not all take their marching orders from him.
So now you have a situation where Obama wants to change the subject back to the things that he was elected to do, and the stakeholders are pursuing their own agenda. If he had not released the memo's, he would be working on what he was elected to do, and he would not have to worry about these other stakeholders driving the conversation, nor having his press flacks push Ambinder with stories about how Yoo really isn't important (yet Bybee was?).
Face it, politicians do not press hard to change the subject if the subject that they are on is a winner. And this administration is working awfully hard to change the subject.