In thinking about Attorney General Eric Holder’s deliberations on how and to what extent to investigate Bush-era torture policies, I think it pays to look back at what I consider the closest historical parallel: the Japanese internment camps. Both cases involved overreactions to unprovoked attacks on our homeland. In 1988, Congress determined that the decision to inter Japanese-Americans was based on “race prejudice, war hysteria, and a failure of political leadership” and authorized $1.6 million in reparations. Ronald Reagan signed the bill. I don’t think we want to wait forty-three years to recognize our post-9/11 errors.
One interesting parallel between the 1940’s and the Bush era is that offending policies were justified in part by difficulties in using sensitive electronic surveillance in court.
In Magic: The Untold Story of US Intelligence and the Evacuation of Japanese Residents From the West Coast During World War II (2001, Athena Press), David Lowman (1921-1999), a Former Special Assistant to the Director of the National Security Agency, argues that Roosevelt was persuaded to authorize the evacuation when told the US had only partly and with great difficulty broken the Japanese Naval codes. Successful prosecution of Japanese-Americans would force the government to release information revealing their knowledge of Japanese ciphers. If the Japanese Imperial Navy changed its codes, Roosevelt was told, it might be months or even years before they could be read again. Magic was the code-name for American code-breaking efforts.
In other words, Roosevelt was convinced to round-up all the Japanese-Americans on the West Coast because singling out the few we knew to be spies and prosecuting them in a court of law would require introducing evidence that could only be obtained by breaking the Japanese ciphers (thus, revealing that they had been broken). In a similar vein, Bush was convinced that our efforts to surveil al-Qaeda members would be compromised if we attempted to prosecute them in a court of law. Bush was also convinced that he needed to violate the Foreign Surveillance Act of 1978 and the National Security Act of 1947 in order to adequately protect the country with the necessary level of secrecy about sources and methods.
As in the case of the internment camps, I think it fair to say that historians will have a modicum of sympathy but will ultimately judge Bush’s actions quite harshly. One significant difference between the two cases is that the Supreme Court ruled in Roosevelt’s favor in 1944, while the Supreme Court ruled against Bush repeatedly, even while he was still in office.
Another difference is that the war with Japan ended suddenly and definitively, while the struggle to prevent massive acts of terrorism is going to be with us for the foreseeable future. Yet, the country didn’t seek to prosecute the people that ordered or carried out the internment of Japanese-Americans. In part, the reason why we didn’t do that is because it took decades for our attitudes about race to change sufficiently to gain a consensus that the internments had been wrong and unjustified. But another part of the reason is that the war was over and the internment camps were closed. There was no currency to the debate. We don’t have that luxury when it comes to protecting our privacy rights in a surveillance state, or in determining the right way to interrogate, detain, or prosecute terrorism suspects.
It may be unpleasant to investigate an administration of such recent vintage, but we must do it because we have to get these policies right going forward. In the end, the investigators will have to use prosecutorial discretion in determining who should or should not be charged with crimes. But our policy makers need a good understanding of what was done, what worked and didn’t work, and why, so that they can make wiser decisions for our future. Holder needs to authorize someone to get the facts. What to do about those facts can wait until after they are collected.
How many Japanese were water boarded in the internment camps?
How many were murdered?
How many of their children were raped?
The internment of the Japanese humans has been historically decried as one of the biggest mistakes.
How can one now compare the similarities or differences, when the lesson of wrongness has already been learned.
Eric Holder has a job.
I want him to do it, or walk away in shame.
We could go back to when Native Americans were illegally detained, & given those warm “blankies”.
Let`s not compare, & move forward with what is right; the rule of law.
Nothing else will suffice.
From what I can gather, and I don’t put a whole lot of stock in these reports, Eric Holder is concerned precisely with at least 20 cases that involved either murder or egregious torture that went far beyond what was ‘authorized.’
Now, I think Greenwald raises the proper concerns about limiting an investigation to just these cases, since what was authorized was itself a crime.
But, no one has suggested that Bush or Cheney or the OLC or anyone else ever put out any ruling or order that would justify murdering someone who we had safely in our custody. And, as for the enhanced interrogation techniques, they were authorized with a fair degree of specificity. So, it’s not hard to judge whether something exceeded what was authorized.
I imagine that a special investigator would question the people involved in these incidents, and they would get some explanations about the context within which these things happened. An interrogator could explain, for example, that they were orally instructed to take the torture beyond what was authorized, and who made that request.
So, there is really no telling how high such an investigation might reach. There is certainly no guarantee that it would result in nothing more than the prosecution of a few ‘bad apples’ without implicating any higher-ups.
The problem is that it sets a strange and bad precedent that the only prosecutable offenses are those that violated guidelines that were themselves illegal.
On the other hand, justice is only one piece of a larger puzzle, which also includes learning lessons and crafting sensible laws and regulations for the future. Roosevelt violated the Constitution just as surely as Bush did, and I am not going to argue that rounding up Japanese-Americans and forcing them to live in concentration camps is less of an offense than wall-slamming and waterboarding terrorism suspects. It was arguably worse. Two wrongs don’t make a right, but I don’t want a desire to avoid unpleasantness to interfere with a fair airing of the facts.
We can decide what to do with the facts once we have them. We can’t make any decent decisions without the facts.
The OLC is part of the DOJ. As disappointing as it is, I never expect the DOJ to repudiate their own work – it “sets bad precedent” for the future. I’d like to see Holder do it, but I wouldn’t expect it.
The folks who need to investigate this are actually Congress – this is a checks and balances issue if there ever was one. The administration passed an illegal edict – the group that has the ability to hold the administration accountable isn’t a branch of the administration, it’s the supposedly co-equal legislative branch.
Holder’s pushing things as far as I would expect anyone inside the system to push them. If Holder were the type of person who pushed things the way I would want to see them pushed then he probably would never have been nominated for that position in the first place. It’s Congress that needs to have pressure applied to open up investigations.
I’m not holding out hope for it, but there is a possibility that Holder’s investigation will end up reporting on things that he doesn’t want to investigate (i.e. things that were in accordance with Yoo’s Torture Memos) but that finally force Congress to wake up to their responsibilities and investigate themselves. I doubt it, but it could happen.
That`s exactly why the air should be cleared immediately.
I don`t advocate hanging Bush, Cheney et al until a full investigation, prosecution, is conducted & if found guilty, hung by a coarse rope.
The law stipulates the sentence of death, if a death occurred during the commission of a war crime.
I don`t want to sound vengeful or hateful, but can`t I expect the least that would happen to any “common” criminal, to be the sentence of someone of a higher moral expectation, something quite alien to the likes of any Bush family member, or for that matter, a Cheney one.
I must excuse any children of the two aforementioned clans, under the age of reason, from any vitriol.
I don’t advocate hanging anyone. I am opposed to the death penalty. I would probably be satisfied with impeaching Bush and Cheney so that they are ineligible to hold any public office or receive any of the perqs of office. Rumsfeld should be prosecuted because he wasn’t an elected official. I suspect that George Tenet deserves jail-time, too.
What’s funny is that I consider my position to actually be very moderate and forgiving, but it is probably seen as incredibly radical inside the Beltway.
I don`t believe in the death penalty either, (but Bush sure did).
The point I was making was that that`s what the law states, not what I want.
I want the laws applied equally, whether they be good or bad, but they must be applied.
How can one choose who to prosecute, because of political consideration.
If the law does not apply to all, open the prison doors now.
The “war on terror” is an unwinnable concept. It’s a war on fear, and the people running the war want to keep people scared so that they can continue the war.
If the concept of war is removed from the process of controlling oil in the Mideast then one can more clearly understand what is going on.
The US invaded Iraq and Afghanistan not to fight terror. There’s enough on the table to suspect our intelligence services’ involvement in the initial “terror”. We know that Saddam had nothing to do with 9/11. There is more proof that people within our military-industrial complex created the whole anthrax scare (that’s the official theory of the case). The US invaded Afghanistan ostensibly to get Osama, then stayed after he left. That’s six or seven years now. I think that rationale has expired.
Sure, there are people who create terror. Many of these people, at some point in their terror careers received funding, arms and training from the US. If you go back far enough CIA operative Ed Wilson was supplying Khaddafi with plastic explosives. What does that tell you?
Sure, we need to investigate. Torture is the roadsign showing where our country is headed. I just don’t believe that at this stage of decay there will be any meaningful investigation, and the wrong people will be left holding the bag. In the grand scheme of things Cheney is just a few steps up the foodchain from Lynndie England.
Have you ever read Open Veins of Latin America? Yeah, that’s the book Chavez gave to Obama. It was an eye opener for me. To the extent to which American(and other “first world countries) capitalist countries run a program of rape and pillage and destruction of anything that gets in their way .. as far as extraction of resources(meaning oil .. other minerals .. that are needed to make things like aluminum and steel) .. the CIA is a tool of the rich and powerful basically
I honestly don’t know — was there, at the time of the Japanese internment, an active US constituency objecting to this racist travesty? I know I live in a bit of a bubble, but those of us who think lawless evil was done in our names by the Bushies sometimes amount to 40 percent of us. That ought to influence the dynamics of the situation, but I am not sure it does.
janinsanfran,
“was there, at the time of the Japanese internment, an active US constituency objecting to this racist travesty?”
The Japanese internees certainly did, a perfect example of the US constituency.
These were fellow Americans.
It actually should be written as 100% of the population railing against any kind of “racist travesty” & furthermore, I don`t, & never would, consider you to be in a “bubble”, but the other 60 percent should have theirs` burst as fast as possible.