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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, July 22, 2009

The value of limited investigations

And Also: Hilzoy will be missed, but checking over OW, it still provides (especially with comments) one of various places where someone can get a better sense of the details of policy debates, including health care. As someone who can be overwhelmed with details, even if the big picture seems fairly clear, this is of particular interest. The long disappeared Melissa Rogers also has popped up for the Sotomayor hearings at least.


I responded to a post GG had today regarding his debate with Chuck Todd ("journalist") on investigations of torture and other matters. First off, let me again note that the Young Turks interviewer did things right, including providing follow-up questions that did not just accept the premise of the answers. This was possible even though the guest was there for a limited amount of time. Second, that Colbert bit was not really funny: it had too much of a serious edge, especially the kicker. Finally the back and forth I had with Glenn in particular was tedious.

My basic argument [agreed with here in a way better expressed than I] was that the investigation, as the reporter interviewed noted, might be valuable in particular if the limited area is truly investigated. A "what" is being investigated here, not a "who." And, the acts of small fry -- not saying this actually will be done -- tend to not be done in a vacuum. In the process, a lot may come out, the limits unclear. This is one reason some will fear it. As the NYT article linked by GG's post notes:
Mr. Holder has told associates he is weighing a narrow investigation, focusing only on C.I.A. interrogators and contract employees who clearly crossed the line and violated the Bush administration’s guidelines and engaged in flagrantly abusive acts.

But in taking that route, Mr. Holder would run two risks. One is the political fallout if only a handful of low-level agents are prosecuted for what many critics see as a pattern of excess condoned at the top of the government. The other is that an aggressive prosecutor would not stop at the bottom, but would work up the chain of command, and end up with a full-blown criminal inquiry into the intelligence agencies — just the kind of broad, open-ended criminal investigation the Obama administration says it wants to avoid.

The "line" here is violation of official Bush memoranda. If the agents in question broke them but had the okay from superiors, are we saying here that the superiors would also not be targeted? Why not? If we will have this limited investigative focus, yes, we must focus on those involved, not just small fry. OTOH, should we not arrest sellers of crack to children if we cannot -- for whatever reason -- get the big suppliers? GG is firm in saying memoranda being used as a line are not "the law," but a perversion of it. My argument in no way implies otherwise, but he felt a need to remind us (me) of it in response to my comments. Me saying this once didn't take for some reason, though I do not think my argument was somehow obscure.

The reality is that "the law" is not properly enforced all the time. So, I said, if we have to suffer through this (not saying it was right), it might be best if there were some limits. But, the limit is the law of the land!!!! No duh, Glen. And, (as I said) prisons are cruel. It is using the perfect as the enemy of the good to say that drawing some line in the sand (e.g., waterboarding is illegal) is meaningless, if some illegality continues. GG:
Exactly. It's one thing for a prosecutor to decide, as a matter of standard prosecutorial discretion, that those memos would make it too difficult to obtain a conviction, but to declare ahead of time that they constitute immunity as a matter of DOJ policy is another thing entirely. An investigation grounded in this premise would be to institutionalize the incomparably dangerous notion that anything the President does is legal provided he finds some low-level DOJ functionary to write a memo saying it is. The torture tactics Bush ordered are criminal no matter how many memos John Yoo wrote saying they weren't.

Yeah ok. I don't know the importance of this "DOJ policy," which after all is a matter of discretion anyway. Likewise, whatever "DOJ policy" is, it is not the same thing as "the law." They can make it "policy" that medicinal marijuana legitimized by the states will not be prosecuted; it still is against federal law. It is criminal no matter how much "DOJ policy" says otherwise. Right? And, GG wants to call doing nothing "prosecutorial discretion" as if that is so much better. The people still get away with it. He is (rather angrily) hanging on to wordplay at the end of the day. On the basis of rather thin reeds, GG rather NO ONE be prosecuted, even those that went further than executive policy.

I myself think the latter group crossed an additional line. It is like qualified immunity -- an official can do something wrong or something REALLY wrong. Both are illegal, but the latter is particularly so. If nothing is done, why exactly it is not "institutionalized" anyway is beyond me. It is just always "too difficult" to prosecute. Sorta like technically a black man could get a fair trial in the Jim Crow South. It wasn't "policy" that he could not, right? Well, not "official" policy. Are we serious here? Let's be real here.

Finally, I don't see by the article cited that "policy" is being made here! The quote portion says the additional "investigation" will be limited to those who went further than the Yoo memoranda etc. Now, perhaps, overall that is being said. Fine. But, the article suggests only that prosecutorial resources will be used for this class of people. This sounds like prosecutorial discretion to me. After looking at everything as a whole, he is targeting a special class. Why is this a problem even under GG's rule.

Bottom line, this is all very annoying. I don't think this is enough, but it takes so much effort to accept some baseline. Many STILL cannot admit that waterboarding is torture and shouldn't be done even if it might "work." Now, we have to deal with so much anguish over what amounts to a too narrow investigation. But, this should not lead us to ignore the shades of gray. [See here as to the "birther".] Instead, people who clearly agree with each other on what matters talk past each other on details. Shouldn't the reality based community be able to reason better?