Framed: Prosecuting Officials for Crimes

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Framed: Prosecuting Federal Officials for Major Crimes

Torture, Spying and Defense of Democracy

Throughout history, some public officials have used their positions of power to commit illegal acts, often for personal gain. The normal actions of government and civic involvement are a suitable response to such crimes.

However, during the George W. Bush administration it became clear that some officials were willing to use crime to undermine democracy and to use the power of the federal government to obtain through the powers of government ends that they could not secure through private means. They abused state power to further ideological and special interest goals.

To these ends, Bush officials committed serious crimes, including:

  • Significant material violations of constitutional rights,
  • International war crimes, and
  • Federal felony crimes.

Bush officials have stated publicly that they committed these acts, which should be sufficient to cause those responsible for enforcing the rule of law to indict them and bring them to trial. Specifically, officials in the Justice Department have cause to bring charges for:

  • All activity in furtherance of torture of any detainee under federal jurisdiction under federal and international law.
  • Spying on Americans in violation of FISA and rights specifically enumerated in the Constitution.
  • Holding prisoners in violation of habeas corpus, a right specifically enumerated in the Constitution.

Torture, spying and abuse of the justice system are all crimes that one or more Bush officials have confessed to the public. For an extensive list of references on torture, please see the Torture Timeline. For up-to-date information about prisoner abuse in Iraq, Afghanistan, and elsewhere, please see the Prisoner Abuse project.

All officials of the federal government, including the President, members of Congress and federal judges, are sworn to uphold the Constitution upon taking office. Therefore, knowingly allowing any official to violate that Constitution, especially in the commission of a serious crime, is dereliction of duty.

The officials of the federal government hold office as representatives of the people of the United States. The people are sovereign and therefore have a right to know all that such officials do and to hold them accountable under the law for their actions. As the sovereign of the nation, they also have an obligation to see that officials perform according to the law and in the best interests of the country. It is therefore incumbent on all citizens to demand that officials known to have committed serious crimes be brought to trial.

There are three legal and proper methods for holding officials accountable:

  • Petitioning current members of Congress and the President to investigate and pursue criminal trials against any official known to have possibly committed a serious crime.
  • Use the power of the ballot box to vote against any member of Congress that does not diligently seek investigations and prosecutions of these known offenders.
  • Use all legal means to change the Constitution to allow direct indictment by petition and then indict by petition those who are known to have participated in the ordering or execution of torture, spying and other serious crimes.

Officials in Switzerland have threatened to arrest George Bush under the International Conventions Against Torture (ICAT) if he travels there, based on allegations by the Center for Constitutional Rights that he knew about and ordered torture during his administration. The CCR case is laid out in an Indictment (PDF) that details his known participation in meetings that led to torture. For a list of participants and information on them, see the Center for Torture Accountability.

Frames

After the Bush Administration left office, the question arose as to whether officials from that administration that committed crimes would ever stand trial. The Obama Administration has not sought so far to prosecute even one of these individuals. Congress had the option to impeach these officials during the Bush Administration, but failed to do so. The current Congress has launched scattered investigations, mainly in response to the outrage of certain members of Congress over the brazenness with which Bush officials committed these crimes and the outrageous damage they have done to governance. Both Republicans and Democrats (as well as visible public speakers of various stripes, especially conservative pundits) have made arguments for or against investigations and/or prosecutions. Among the arguments for prosecution, we have:

Attack Frames (Use)

  • Rule of Law: These people broke the law and not prosecuting them weakens the rule of law. Investigations and trials are the normal operations of government and short-circuiting them is itself a violation of law.
  • National Legitimacy: The United States has publically promoted human rights around the world for decades. Failing to prosecute officials for torture undermines the moral standing of the country and makes it difficult to argue against human rights abuses in other countries.
  • Defense of Democracy: The specific crimes of the Bush Administration weaken democracy by making it possible to spy on the political opposition and by creating a dictatorship where no actions of the executive can be checked by legislative or judicial action.
  • Official Policy: Until these specific crimes are litigated in court, the only safeguard against their further use is self-restraint of the executive. This is flawed because it depends on the good of the person, not on the rule of law. Further, the exact limits have not been set by legitimate governmental process, so no one knows what is acceptable and what isn’t. This ambiguity can be exploited by any malevolent force within the government to abuse power.
  • Ending Abuse of Power: The executive is naturally disposed to abuse power and will only refrain if it is clear that there is sufficient political will and ability to push back. Failing to prosecute accepts the unitary executive principle as a possible outcome, and that principle may be used by future officeholders unless it is repudiated.
  • Patriotism: The principles embodied in the Constitution represent what it means to be an American. Violation or repudiation of those principles is unpatriotic.
  • The Future: Across many of these arguments is the fact that what happens with prosecutions will determine what standards we set for the future. If we thoroughly investigate and prosecute, then we are setting a high moral standard both for the United States and other countries. If we don’t, then we accept low morality in public officials, which will enable future governments to use torture, illegal spying, and other human rights violations for whatever ends they want in both this country and others.

There is also the practical consideration that abusing detainees, many of whom have been picked up in the Muslim world, is a great recruiting tool for our enemies there. As such it is a danger to national security. While this is a compelling argument in practical terms, the kinds of torture and spying perpetrated by the Bush Administration are illegal and cannot be condoned regardless of the practical considerations.

Among arguments against prosecution, we have:

Defense Frames (Don’t use)

  • Don’t Look Back: Some argue that we should ignore the crimes of the Bush Administration because we’ve turned the page and we have a new President who doesn’t allow these kinds of crimes.
  • The National Defense: Some have argued that these laws were broken to defend the country from harm, and that national defense is more important than defending rights. In this defense, the idea is that without criminal behavior by officials some major attack against the country would have occurred, so they saved the lives of innocent people.
  • Unitary Executive: Some have argued that the executive branch of government doesn’t have to follow federal law or the Constitution because the nature of the office is such that it has inherent power to operate outside the law.
  • Weakness: Some have argued that committing these acts was necessary in order to defeat enemies of the United States (such as al Qaeda or “Islamic extremists”). If we don’t use these techniques, thinking goes, then we will appear “weak” to our enemies.
  • We Only Did It a Little: Torture was only used on a few, extreme cases, so it’s okay.
  • A Few Bad Apples: Some have argued that any real criminal behavior was only committed by a few, low-level people that went beyond official policy.
  • The Ticking Time Bomb: Some have argued that officials need to be able to commit crimes such as torture in order to stop imminent attacks.
  • The Wounded Intelligence Defense: Some have argued that prosecuting these crimes will have a chilling effect on intelligence gathering by causing the hardened intelligence operatives in the CIA and other intelligence agencies to hold back on activity that might be questionable for fear of later being prosecuted.
  • The Legal Defense: Some have argued that because legal “experts” “studied” interrogation techniques and wrote opinions that they weren’t “torture” that technically they didn’t violate the law.
  • The Legislative Defense: The Bush Administration tried to co-opt members of Congress into participating in their illegal activity, even going as far as to have Congress pass bills that claimed that certain actions (such as spying without warrants or holding people indefinitely in prison) did not constitute illegal behavior.
  • Let’s Get the Whole Truth Out: Some have argued that if the country just knew how valuable breaking the law is to keeping them safe that they’d be all for it, but unfortunately you can’t tell the public the truth without compromising national security.
  • The Political Defense: Some have argued that decisions about torture and spying are political decisions, not legal ones, so any attempt to hold culprits responsible is “criminalizing politics”.
  • The Practical Defense: Some have argued that prosecutions will make it too hard for future officials to defend the country. The argument is that these actions have saved lives, so they must be preserved to use in the future.
  • The Stupid Defense: Some have argued that it’s okay to torture these detainees because they are “terrorists”. The thinking is that “liberals” are so intent on protecting the rights of these horrible people that they will let the country be destroyed in the process.

Using Frames

Proponents of keeping official actions legal need to be able to use the attack frames above to press home the need for investigations and prosecutions. Likewise, they need to be able to counter defensive frames of the apologists. It is important first to understand the defensive frames and their weaknesses. Opponents of accountability try to bring up as many of these as possible and go on from one to another in order to prevent rebuttal.

It is important to immediately confront each frame as it occurs. To do this, we must often put our foot in the door to prevent a filibuster with something like “Let’s talk about that” interjected when the defensive frame first comes out. Another option is, “Let me make a note and we can come back to that.”

On the offensive side, the most important point to get across is the Defense of Democracy point, following up with The Future. The whole reason why this is important has to do with what kind of a country and what kind of a world you want to live in. Make it real to the audience. Do they want to live in a police state, a dictatorship? We are already living in a soft dictatorship. Now is the moment to repudiate this, or we lose democracy, probably forever.

For hardcore, right-wing pundits, the point to lead on is patriotism. Constitutional rights are what define being an American. There is no common racial or ethnic definition of “American”. That which binds us together is our belief in core values as represented by the two dozen distinct guarantees of rights in the Constitution. Selling out the Constitution is unpatriotic behavior. Since right-wing pundits have made much of their “patriotism”, attacking them on this issue fixes their attention so that you can hit them with the other attack points.

Opposition Examples of Use

[We should have examples from others besides Dick Cheney, but he was so prolific that he seems to have wiped the others away. Please add examples from others that fit.]

Here are some examples of how apologists for this illegal behavior have tried to justify it:

Excuses: The National Security Defense, The Legal Defense “In the years after 9/11, our government also understood that the safety of the country required collecting information known only to the worst of the terrorists. And in a few cases, that information could be gained only through tough interrogations. In top secret meetings about enhanced interrogations [torture], I made my own beliefs clear. I was and remain a strong proponent of our enhanced interrogation program. The interrogations were used on hardened terrorists after other efforts failed. They were legal, essential, justified, successful, and the right thing to do. The intelligence officers who questioned the terrorists can be proud of their work and proud of the results, because they prevented the violent death of thousands, if not hundreds of thousands, of innocent people.” Dick Cheney, 21 May 2009

Excuse: The Political Defense “Some are even demanding that those who recommended and approved the interrogations be prosecuted, in effect treating political disagreements as a punishable offense, and political opponents as criminals.” Dick Cheney, 21 May 2009

Excuse: We Only Did It a Little “It is a fact that only detainees of the highest intelligence value were ever subjected to enhanced interrogation [torture]. You’ve heard endlessly about waterboarding. It happened to three terrorists.” Dick Cheney, 21 May 2009

Excuse: The Ticking Time Bomb “We had a lot of blind spots after the attacks on our country. We didn’t know about al-Qaeda’s plans, but Khalid Sheikh Muhammed and a few others did know. And with many thousands of innocent lives potentially in the balance, we didn’t think it made sense to let the terrorists answer questions in their own good time, if they answered them at all.” Dick Cheney, 21 May 2009

Excuse: A Few Bad Apples “In public discussion of these matters, there has been a strange and sometimes willful attempt to conflate what happened at Abu Ghraib prison with the top secret program of enhanced interrogations [torture]. At Abu Ghraib, a few sadistic prison guards abused inmates in violation of American law, military regulations, and simple decency.” Dick Cheney, 21 May 2009

Excuse: The Legislative Defense “On numerous occasions, leading members of Congress, including the current speaker of the House, were briefed on the program and on the methods.” Dick Cheney, 21 May 2009

Excuses: The Practical Defense, The Wounded Intelligence Defense “Those are the basic facts on enhanced interrogations. And to call this a program of torture is to libel the dedicated professionals who have saved American lives, and to cast terrorists and murderers as innocent victims. What’s more, to completely rule out enhanced interrogation methods [torture] in the future is unwise in the extreme. It is recklessness cloaked in righteousness, and would make the American people less safe.” Dick Cheney, 21 May 2009

Excuse: Weakness “And when they see the American government caught up in arguments about interrogations, or whether foreign terrorists have constitutional rights, they don’t stand back in awe of our legal system and wonder whether they had misjudged us all along. Instead the terrorists see just what they were hoping for – our unity gone, our resolve shaken, our leaders distracted. In short, they see weakness and opportunity.” Dick Cheney, 21 May 2009

Excuse: Let’s Get the Whole Truth Out “I believe this information will confirm the value of interrogations… If Americans do get the chance to learn what our country was spared, it’ll do more than clarify the urgency and the rightness of enhanced interrogations.” Dick Cheney, 21 May 2009

Excuse: The Stupid Defense “Why is it that people like Jesse Ventura are so concerned about how we treat people like Khalid Sheikh Mohammed?” I think Joe Scarborough just gave the game away


Responses

Here are some of the responses to defensive arguments that can be used:

  • Don’t Look Back: This defense has been made by the Obama Administration to justify not prosecuting. Its problem: Even if the current administration doesn’t step over the line, that doesn’t bind future administrations to the law. Not that it’s clear the current administration is abiding by the law. Also, the logic is flawed. This is like the police saying, “I’m not robbing you and no one else is at the moment, so I’m not going to do my sworn duty and arrest the guys who robbed you blind yesterday.” Beyond that, prosecuting those who violate the rights of citizens is important to a wide variety of necessary actions. How do you argue for public healthcare if you can’t guarantee that violations of privacy by the administration are found and prosecuted?
  • The National Defense: The Constitution does not have an exception in it for this kind of “necessity” defense. Implicit in the document is the idea that all activity will be conducted within the law. Nor is it necessary to violate constitutional, international or federal law in order to protect the country. Somehow, the federal government has done this for over two centuries without resorting to lawlessness, even in the face of a worldwide communist threat.
  • Unitary Executive: Nothing in the Constitution suggests that the executive (or either of the other branches) has the inherent power to violate the law. In any case, it is illogical to say that the document which gives these branches power can be violated by one of them. In addition, the structure of the Constitution strongly suggests that Congress, as the most representative of the people, is first among equals in deciding what is to be done. Beyond that, the modern world is a very complex place that presents problems beyond the understanding and reasonable response of any one person. The only way to reliably deal with these complex problems is to act through the normal channels of the system. Going it alone may seem necessary to an individual but from a rational point of view it is the least likely to result in the right answer.
  • Weakness: Impressing our enemies is not a winning strategy. The winning strategy is to impress the billions of people in the world who are on neither side, thus enlisting them to our cause. To show that we stand for human rights even when we don’t find it convenient for ourselves is the way to encourage that across the world, and thereby lift areas of the world out of moral darkness.
  • We Only Did It a Little: No, it’s not okay because it only happened a little bit. If you murder someone, the police and courts don’t ignore you because you aren’t a serial killer.
  • A Few Bad Apples: The fact that low-level people committed crimes does not excuse high-level officials of creating an entire system to commit torture or to spy without warrants. The few bad apples at the top should go on trial, just like any from the bottom of the barrel.
  • The Ticking Time Bomb: Since torture is unreliable, it makes no sense to use it during a high-pressure situation. Anyone who thinks it is useful to stop an imminent attack is too inexperienced with interrogations to be trusted with such a decision.
  • The Wounded Intelligence Defense: Clear guidelines on what is right and what is wrong did not impede our intelligence efforts prior to the Bush Administration, and they won’t in the future. If anything, knowing where the public stands on this, where the courts stand, where the law stands, and where Congress stands would be useful to helping intelligence officers know exactly what they can and cannot do in their operations. Another fallacy here is that some specific piece of information is necessary for the safety of the country. Given the scope of intelligence gathering in the modern world we gain more by enlisting allies than by any specific piece of intelligence.
  • The Legal Defense: The settled law on this is that all those who participate in facilitating torture are war criminals. It doesn’t matter whether you order it, excuse it, or personally execute it--all are guilty. The rules were clear going into this, and anyone who broke them did so in the face of overwhelming existing precedent. On the issue of illegal spying, the thrust of the Constitution is clear: people have a right to privacy and the government is bound to protect it.
  • The Legislative Defense: This shows that the perpetrators knew they were committing a crime. They tried to, and in some cases succeeded in, co-opting Congress to either acquiesce to criminal behavior or try to write legislation to excuse or pardon it. To these ends they got Congress to pass the Military Commissions Act and the so-called Patriot Act, both of which contain sections of unconstitutional material that cannot be considered law. They brought in congressional leaders and told them things that were obviously intended to either mislead them or to try to turn those they could into accomplices. All of this suggests that they knew they were doing something that they shouldn’t be.
  • Let’s Get the Whole Truth Out: It may be true that weak individuals can be persuaded to break the law if you dangle a big enough carrot in front of them. However, illegal activity is still criminal, even if you think the payoff is huge.
  • The Political Defense: If you don’t want to be called a criminal, then don’t participate in criminal behavior. Just because someone is a politician doesn’t mean that all charges they committed crime is using the law to fight a political argument. In this case, the fact that these people are on the losing side of politics has nothing to do with the fact that they also broke the law.
  • The Practical Defense: The point of prosecutions is to make it harder to commit these illegal acts in the future. If they were legal, it might be open to question whether we should foreclose on their use. However, there is no situation in which they will become legal. Foreclosing on them has no cost.
  • The Stupid Defense: (I call it this because it comes out of an argument that is so logically flawed it would only be believed by stupid people.) The problem with this argument is that we are not defending the rights of terrorists. For one thing, there’s no proof they are terrorists because they haven’t had trials. For another thing, even if they were, we aren’t defending their rights, we are defending our rights.


Publicizing the Frame

The primary argument is as follows:

The future of democracy is at stake. We are faced with a choice of stopping illegal and undemocratic activity committed by officials of our government vs. letting this become accepted practice that can be picked up at a future time and used to complete the fashioning of a dictatorship. We are also faced with the choice of letting some of this behavior continue under the Obama Administration vs. setting limits and stopping it.

Do you want to be associated with criminals? Or, do you favor the rule of law?

Other Resources to Draw On

What Progressives Value and Want

Sustainability. Official criminal behavior is not sustainable in a democracy. It puts certain people or groups above the law, undermining the legitimacy of the government and invalidating democratic elections. Fairness. Western standards of due process were developed over centuries to ensure fairness. Would you want to be tortured to see if you have any information that might be useful to the government? Is it okay for the government to spy on you without any independent review (by the judiciary) of whether you may have committed a crime? The kind of illegal behavior exemplified by the Bush Administration creates an inherently unfair society that abuses the official power of the government for private ends. Consistency. It is inconsistent to allow government officials to break the law while requiring citizens to follow it. It is inconsistent to allow members of the executive branch to decide what behavior is criminal while requiring the other two branches to follow the law.

Notes

Remember: What’s at stake is our democracy. The common theme of lawlessness in the Bush Administration was to act without the consent of Congress or the people. Their policy was to operate in secret because they knew that in the open the American people would not approve their behavior. Spying without warrants opens up the possibility of spying on opposition politicians and private citizens funding opposition ends. Reserving the right to keep people in prison indefinitely without trial is a proven method of instituting dictatorship. Torturing captives is intended to create fear in those who might oppose government action, and is a proven method of terror. This is a critical moment in our history, one in which we have the option to decide whether to return to traditional democratic values or allow our government to be swept away into a form that facilitates dictatorship.

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