Marcy Wheeler on Torture Prosecutions: Live At NN09

Live in Pittsburgh: Our own Marcy Wheeler is on a panel about — what else? — torture prosecutions with Rep. Jerry Nadler, the ACLU’s Melissa Goodman and Vince Warren and Jen Nessel from the Center for Constitutional Rights. (Jen’s moderating.) I’ll be liveblogging; have at it in comments. Soundtrack is Crucifix’s "Stop Torture," but for my purposes, it’s the chorus to Jay-Z’s "Where I’m From." Marcy, son!

CCR has actual baseball cards of Bush officials who ought to be prosecuted. Will be up on CCR’s website shortly. Nadler offers to trade three Ashcrofts for, I think, a Condi.

Internet fail! OK I’m back. Nadler: these are the facts — the Bush administration authored torture; torture is illegal. "We’ve admitted there was torture under our jurisdiction. We must therefore investigate and where warranted, prosecute." Obama has an "obligation" to do so or admit our own lack of commitment to the rule of law. Endorses a special counsel with "authority to investigate and prosecute." Inappropriate for Justice Department "even under new leadership" to investigate — OLC’s involvement in torture raise the question of a conflict of interest. 

Nadler: this is unprecedented, admittedly. "I had no sympathy" for Obama’s campaign pledge of nonpartisanship. Marcy, and the room, applauds fulsomely. "We’re seeing what bipartisanship means" with one of the parties being "so narrow and rightwing." But about "moving forward" — "it will bring tremendous difficulties… we have to do it in any event," but be clear about the implications. It’ll be called a partisan witchhunt. "The rightwing will erupt." The Obama administration "doesn’t want to face that, and I don’t blame him." But for "the future of liberty… we have to pay that price."

Nadler: We went after Bush for doing what Obama might be doing now: deciding at the White House how to administer justice. "Leave Mr. Holder alone." Nadler adds he thinks that’s what the White House is doing. 

Nadler: They’re considering exempting from investigation people relying on legal memos for torture; and for those who wrote them." Going after instead those who waterboarded with "8 oz of water instead of 3." Thinks that would be "terrible." Nuremburg example: at Nuremberg, went after the legal architects. And out come the Nazi comparisons. "Following orders is no excuse." Do you have enough evidence of a criminal act that could "convince a jury" — if yes, prosecute, if no, don’t. But "if there is no investigation… even if ultimately nothing happens… we’re opening carte blanche for the future." Headnods.

"We’re well into a pattern" — thanks to pardons for Watergate and Iran-Contra — where "high level officials break the law and nothing happens… We’ve got to break that pattern." Nadler closes. Hey teabaggers: if you hate Obama so much, pay attention to this, yeah?

Vince Warren: "I am proud to be in your district, you are my congressman… you’ve been an absolute leader on all those issues." Only the netroots speaks without euphemism: "torture,"  not "special enhanced interrogation techniques." Only Obama is able to provide transparency for what happened in the past administration, and "we in this room" have to provide supporting dissent. His presidency will turn on "whether he was the accountability president or was not. … People around the world are expecting this." The politics here needs to become "subsumed into the law once again… but it’s the thing that’s politically difficult." 

Warren: "There is still illegality that is going on." Domestic and international legal requirements. War Crimes Act; the anti-torture statute; Geneva’s Article 4 compels investigations for torture. "That is not happening… we are in contravention, yet and still, of the Geneva Conventions." 

Warren: A "limited investigatory scheme" was tried at Abu Ghraib. How’d that work out? Finally, a comparison between Abu Ghraib’s Lynndie England and the CIA’s allegedly targeted operatives under Holder’s leaked parameters for investigation. "The prosecution piece has to move forward and has to be more broad than Eric Holder seems to be talking about right now."

Warren on the memos: "A shield and a sword." Not just legal shield for torture, but to redefine what we have known "for years" to give a "green light for the torture to happen." We’re in a situation with a new administration  using them "as a shield" again. Cover to those who relied on the memos and who wrote them. "It is quite literally torture by memo." Warren doesn’t say this, but the implication here is that the Obama administration is implicitly complicit in the torture.

Melissa Goodman: Accountability we need "even beyond the prosecution question." Idea we’re "even debating accountability, I have to admit, feels somewhat strange to me." Torture, warrantless surveillance "not rogue acts… We kidnapped people, we disappeared people, we tortured people, and we even killed people." Agrees with Nadler on the need for a special prosecutor "with a broad mandate, not a narrow one." Senior officials who "authorized," the lawyers who gave cover, and those who covered them up by things like the destruction of the torture tapes.  Low-level prosecutions "gives a pass on the people who were most guilty" and plays into the "rogue" narrative, people who went "way too far,"  rather than taking a structural analysis. "OLC memos were not in any way an honest analysis of the law."

Goodman: What’s "blatantly political" is giving "people a free pass just because they’re a politician."  Not a witch hunt. The rule of law. "The entire foundation of that system."

Goodman: We need torture victims having their cases heard in civil court. That would be real accountability. Can’t get past the state-secrets privilege. Obama sold out on this issue. (My words, not hers.) Need, also, strong congressional investigations. Select committees with subpoena power. Church committee reference. Congress needs to "stop enabling lawlessness." Instead of "reining in the abuse, more often than not, made the abuse legal" as with the FISA Amendment Act last year. 

Nadler keeps playing with his Bush-torture card deck. You can take the boy out of New York City…


Goodman: acknowledging torture and "apologizing" to the victims would "go a long way."

MARCY WHEELER. Has a hoarse voice. Cough up a lung, where I’m from? MARCY SON. Goes hard on the Obama administration’s reliance on the State Department rather than Justice for accountability. What "Panetta’s doing is indefensible." OPR report delay review. CIA IG report delay. "The Panetta filings are just crazy." Nadler shakes his head when Marcy reads out Panetta’s filings promising that he’s not blocking release to "avoid embarrassment." 

Wheeler. Media narrative: Rahm/Axelrod vs. Holder/Greg Craig. She doesn’t buy it, you’ll be surprised to know. Senate intel committee "looks like it is a real and very thorough investigation." Someone "here has to convince DiFi." What about expanding Gang-of-Eight notifications for covert programs? "Obama threatened to veto it" when the House put it into a bill. 

Wheeler vs. Panetta: Hits his recent WaPo op-ed. Tells people that oversight is the same thing as using intelligence as a weapon. To Congress! I’m not sure I agree with that interpretation, but this isn’t my panel.

Wheeler: "We should focus on flipping Bybee." He’s "probably the least complicit of all of these creeps." Marcy might have added that the basis for believing this is the recent Inspectors-General report on warrantless surveillance. 

Wheeler: Give Abu Zubaydah’s attorneys access to his diaries. Ramzi bin al-Shibh’s attorneys need that for their case. How about a discussion that the government is denying defense attorneys access to information material to their cases?

Wheeler: Holder’s investigation announcement may come as soon as Monday. But who’s a competent prosecutor? Stature of a Pat Fitzgerald. Without one, you can’t go after anyone "beyond the Lynddie Englands." 

Wheeler: "Make Rahm the story" in terms of blocking a thorough accountability with torture. Nadler looking very politic, but laughs when Marcy says "we can

Nadler on Holt’s suggestion for a new Church committee: "It’s a very good idea." But. Have to do a number of things. Special prosecutor has to "go forward, regardless of what happens with Congress." Doesn’t like the idea of a truth commission because that "immunizes people." Nothing a Church committee could do that the Senate or House judiciary committee couldn’t do. 

Question: What about the suggestion that the torture was for the Iraq war? Is there a International Criminal Court-based jurisdictional possibility? Warren says it’s "interesting possibility" but the U.S. — Bush and Obama — has resisted. "Don’t think this can be obviated by the ICC." The politics around joining the ICC would "dwarf" those around "throwing Dick Cheney in jail. Should frame this just as an issue of upholding international law.

Nadler: "torture’s illegal period," regardless of the purpose. In response to a question about "breaking" detainees for false confessions, rather than "getting information." Nadler agrees that torture isn’t an effective method for getting reliable information. "I don’t think it was the case that the Bush administration was looking for false information that Iraq was behind 9/11. Think they had a preconceived notion that Iraq was behind 9/11 and were trying to get evidence." But this is "not relevant and the effectiveness debate leaves me very cold" because of the implication that if it’s effective, it’s permissible.

Question" what about Bagram? Goodman: ACLU’s answer is always FOIAing for information about what’s going on. There’s a prospect that people have been imported to Bagram from outside Afghanistan, not just battlefield detainees. "You’ll be shocked to learn that we haven’t done much yet." Laughs. The CIA refuses to "confirm or deny any records" about Bagram. "I can’t wait to litigate that."  DOD has a list of basic information about detainees but is withholding it from ACLU on national security grounds. "Guantanamo redux," Goodman says.

Nadler: "even more important [to] accountability is state secrets." There’s no right without a remedy. Abusing the state-secrets doctrine puts us on the slippery slope toward treating the Bill of Rights like the Soviet Union’s bill of rights. The remedy to abuse should be "that you can sue." But to dismiss the case on the grounds of revealing state secrets "than there’s absolutely no way of vindicating that right and the Bill of Rights becomes a piece of paper."

Last question. What actions can we take to get citizens who don’t already agree with us engaged? Warren: Go to and ask folks to write to Holder. And check out the Torture Team baseball cards, which actually have stats on them. A mechanism to engage people. "We take this very very seriously."

Nessel says they’re not selling them. COLLECTOR’S ITEM. A mad scramble to sign up. Nessel also advises people to think about framing for those who don’t already agree: emphasize accountability to the law, "and people respond to that."

Wheeler adds that you can "tap into the nutters" who think "Obama is going to take their records." These guys can politic with progressives for accountability for warrantless surveillance. (Is Marcy reading this thread on her netbook?) And for the military, to protect U.S. troops against torture when our people are captured. 

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Spencer Ackerman

Spencer Ackerman