It is the lynchpin of the legal case for prosecuting the war criminals of the last administration. We have known for a while that the Justice Department's old guard was going to protect itself and even those who violated basic norms of legality and morality within it. We have known for a while that president Obama and attorney-general Eric Holder have decided to remain in breach of the Geneva Conventions and be complicit themselves in covering up the war crimes of their predecessors - which means, of course, that those of us who fought for Obama's election precisely because we wanted a return to the rule of law were conned.
Whether this betrayal is a prudential and reluctant attempt to play a long game, to avoid, Lincoln-like, a deeply divisive and explosive political war for the sake of the country; or whether it is a cynical and Clintonian form of rank and cowardly opportunism (yes, Rahm, we know who you are), will surely become clearer in due course. I certainly hope the former. I believe the president knows what occurred, and his repeated public use of the word "torture" for the policies of his predecessors is a way of telling the world and future prosecutors in the US or around the world what Cheney and his team did. For the record. Deep down, I still trust him on this, in what is an awful and potentially explosive situation.
Holder has restricted the investigation of the Cheney era war crimes to those that went beyond the torture "legally" allowed by the OLC memos. But it remains possible that once you start pulling on that thread, any serious legal investigation will find it impossible to make such absurd and semantic distinctions when the guiding laws and treaties are so abundantly clear that such distinctions are absurd.
To take one simple obvious example: If we know for a fact that all legal precedent in the US and the world requires one incident of waterboarding to be prosecutable as torture under any circumstances and we also know that the Cheney team subjected someone to it 183 times, I find it simply impossible that any DOJ investigation can somehow only look at instances beyond those authorized by Cheney ... without making a mockery of the rule of law and the Justice Department itself.
So I remain convinced that this matter is not over, even though the way in which the DOJ has now softened and protected the clear and political manipulation of the law by lawyers sworn to uphold it remains a travesty, a disgrace, an abomination, another example of how the government treats its own members in ways it would never ever treat anyone else.
That Lynndie England went to jail for doing things that John Yoo made legal, and Yoo does not even face disbarment, tells you all you need to know about the current state of justice in America. In the end, the current president and attorney-general have assented to this massive injustice. The responsibility is theirs'. But the arc of history is long. And justice will come in the end. Of that I am sure.
I'm exhausted this weekend so please give me time to read the full OPR report carefully before commenting on it. Its details may be so damning, the facts it has assembled so glaring, that the gloss we have heard - leaked, cowardly, on a Friday afternoon - may soon be exposed as such a travesty of the evidence within that what dismays me this morning may encourage me soon.
So let me merely say this: I believe in America. I believe it is still here beneath all this. I believe it will come back. But I also believe it is the duty of all of us who love this country to make sure it does.
That means you as well as me.
Remember: we are the ones we have been waiting for.
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