With Liberty and Justice for Some (24 page)

Media accounts frequently participate in the sermonizing. Thus the
New York Times
article on Clinton’s trip to Kenya included a reference to that nation’s “culture of impunity.” That same phrase pops up in another recent
Times
article, this time applied to Iraq’s failure to prosecute the politically powerful who had committed crimes. Iraq’s “culture of impunity” is “so widespread that it has become one of the main obstacles to stability and progress in Iraq, according to Iraqi and American officials,” warned the paper of record. “Among the barriers, the officials say, are laws that give ministers the right to pardon offenders, as well as partisan and sectarian interference, pressure, infighting.” A search through the archives reveals that the phrase “culture of impunity” has almost never been applied by the paper or any of its sources to the United States. Apparently, such a terrible dynamic is confined to places such as Iraq and Kenya.

The issue here goes far beyond hypocrisy. The willingness to impose on other nations precepts of international law from which the United States flamboyantly exempts itself is also a form of lawlessness. In the same way that most Americans are bound by statutes that do not constrain political and financial elites, so, too, does the United States immunize itself from the very standards to which it demands other nations adhere. Abused in this way, law becomes a tool—both domestically and internationally—by which the powerful can coerce and control the powerless, rather than a system for ensuring that all are subjected to common rules.

Nowhere is this more evident than in the principles that Western nations, led by the United States, enshrined at the Nuremberg trials—principles which the American political class explicitly now claims the right to violate. The purpose of the Nuremberg proceedings was not only to punish Nazi war criminals but also to promulgate legal codes to which all civilized nations in the future would be bound. As the lead prosecutor (and former U.S. attorney general) Robert Jackson explained in his opening statement:

Central to the Nuremberg principles was the imperative that crimes be punished regardless of the status, motives, or excuses of those who perpetrated them. War crimes, Jackson observed, are such that “civilization cannot tolerate their being ignored, because it cannot survive their being repeated.” And contrary to the self-protective claims of contemporary Washington elites, Jackson pointed out that the only way to ensure such crimes don’t happen again is through accountability and punishment: “The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power.”

Despite the esteem in which the Nuremberg principles are held in theory, anyone arguing today that they should actually be applied to American leaders is quickly dismissed as frivolous. This is particularly true when it comes to what Jackson called “the greatest menace of our times” and “the central crime in this pattern of crimes, the kingpin which holds them all together”: “the plot for aggressive wars.” Jackson firmly declared that “no political, military, economic, or other considerations shall serve as an excuse or justification for such actions [except] exercise of the right of legitimate self-defense.”

There is no doubt that the 2003 attack on Iraq by the United States was an “aggressive war” by every measure, and certainly by the standard codified at Nuremberg. Moreover, that attack resulted in the deaths of hundreds of thousands of civilians, the displacement of millions more, and the total devastation of a nation of 26 million people. But the very idea that American leaders responsible for it should be held legally accountable under the Nuremberg principles, or condemned as having done anything criminal, is violently rejected by the Washington consensus whenever the idea is brought up at all. Jackson’s warning that the Nuremberg proceedings would be meaningful only if their principles bound all nations in the future, including the nations that had convened the trial, has simply been brushed aside.

The Nuremberg trials also have relevance to a key claim repeatedly made by opponents of torture prosecutions, those in the media and the political class who oppose prosecutions for torture sanctioned by the Bush administration: namely, that it would be terribly unfair to punish people for having done something that DOJ lawyers had told them they could. That claim, of course, is quite similar to the central argument of the Nuremberg defendants, who said that they were only following instructions from official government authorities. However, Article 8 of the Nuremberg rules rejected that defense in advance: “The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.” And that principle was further codified in Article 2 of the later Convention Against Torture: “An order from a superior officer or a public authority may not be invoked as a justification of torture.”

Given the clarity of this law and its multiple reiterations, what can explain the resolve of the political and media class to ignore it? Why do ostensibly adverse factions leap to one another’s defense even in cases of egregious criminality, with Democrats shielding Republicans, media figures demanding no transparency or accountability for political officials, self-proclaimed populist politicians devoting themselves to the protection of Wall Street? One easy answer is that those factions are not really adversaries, at least not in any way that counts. All their members belong to the same class—the powerful and the elite—and thus are motivated, as discussed, to defend an immunity that they might one day need themselves.

But the unanimous support for Bush-era war criminals is motivated by more than just shared self-interest; it has at least as much to do with shared guilt. Bush officials did not commit their crimes by themselves. Virtually the entire Washington establishment supported or at least enabled the lawbreaking.

Leading members of the Democratic Party were implicated in various ways. In July 2008, the reporter Jane Mayer was asked in a
Harper’s
interview why there was so little push by Democrats—the “opposition party”—for investigations into Bush programs of torture, warrantless eavesdropping, and the like. She pointed out that one “complicating factor is that key members of Congress sanctioned [these activities], so many of those who might ordinarily be counted on to lead the charge are themselves compromised.”

Indeed, key congressional Democrats were contemporaneously briefed on what the Bush administration was doing, albeit often in vague and unspecific ways. The fact that they did nothing to stop the illegal plans, and often explicitly approved of them, obviously gives leading Democratic officials an incentive to block any investigations or judicial proceedings. In December 2007, the
Washington Post
reported that back in 2002 the CIA had briefed a bipartisan group of congresspeople on its use of waterboarding and other torture tactics. That group included the ranking members of both the Senate and House intelligence committees: Jay Rockefeller and Nancy Pelosi. Yet, reported the
Post
, “no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder.”

Similarly, several leading Democrats, including Rockefeller and Representative Jane Harman, were told that the Bush administration was eavesdropping on Americans without warrants. Rockefeller did nothing to stop it, and Harman actually became the administration’s leading defender: after the illegal program was revealed by the
New York Times
, she publicly stated that the wiretapping was “both necessary and legal.” Two years after he coauthored the story revealing the Bush NSA program,
New York Times
reporter Eric Lichtblau revealed that Harman had attempted to convince him not to write about the program on the ground that it was so vital. Appearing on MSNBC in June 2009, the law professor Jonathan Turley pointed out the logical result of this bipartisan support for the crimes.

As Mayer put it, “Figures in both parties would find it very hard at this point to point the finger at the White House, without also implicating themselves.”

The opinion-making elites were similarly implicated. Very few media figures with any significant platform can point to anything they did or said to oppose the lawbreaking—and they know that. Indeed, some of the nation’s most prominent so-called liberal commentators vocally supported Bush’s policies. It was
Newsweek
’s Jonathan Alter who became the first establishment media figure to openly advocate torturing prisoners: his November 5, 2001,
Newsweek
column (headlined “Time to Think About Torture”) began by proclaiming that “in this autumn of anger, even a liberal can find his thoughts turning to…torture” and went on to suggest “transferring some suspects to our less squeamish allies.” It was Alan Dershowitz who argued for the creation of “torture warrants,” proposing for cases such as the proverbial “ticking time bomb” that “judicially monitored physical measures designed to cause excruciating pain” should be made “part of our legal system.” It was the writers of the
Washington Post
editorial page who hailed the Military Commission Act—the single most repressive law enacted during the Bush era, crucial parts of which the Supreme Court ultimately struck down as unconstitutional—as a “remarkably good bill” that “balances profound and difficult interests thoughtfully and with considerable respect both for the uniqueness of the current conflict and for the American tradition of fair trials and due process.”

When it comes to media figures who cheered on Bush’s lawlessness and then self-servingly demanded that there be no investigations, the
Washington Post
’s David Broder is a particularly illustrative case. In April 2009, he wrote a column dramatically denouncing the Bush presidency as “one of the darkest chapters of American history, when certain terrorist suspects were whisked off to secret prisons and subjected to waterboarding and other forms of painful coercion in hopes of extracting information about threats to the United States.” Despite this acknowledgment, Broder in the same column opposed any criminal investigations of the Bush torture regime, proclaiming Obama “right to declare that there should be no prosecution of those who carried out what had been the policy of the United States government.”

Given Broder’s acknowledgment of how horrific Bush’s presidency had been, what explains his simultaneous opposition to investigations? The answer is clear. Like most of his journalistic colleagues, the dean of the Washington press corps never sounded the alarm while this lawlessness was taking place, when it mattered. He did the opposite, repeatedly mocking those who warned of how radical and dangerous the Bush administration was. As torture went on, he continuously defended what Bush officials were doing as perfectly normal and well within the bounds of legitimate policy.

After the 2004 election, for example, Broder dismissed those who were arguing that Bush and Cheney had succeeded in entrenching presidential lawlessness. “Checks and balances are still there,” he insisted. “The nation does not face ‘another dark age,’ unless you consider politics with all its tradeoffs and bargaining a black art.” In 2006, he derided those who warned that the “war on terror” had ushered in an era of extreme lawlessness by sarcastically proclaiming, “I’d like to assure you that Washington is calm and quiet this morning, and democracy still lives here,” and then denouncing Bush critics “who get carried away by their own rhetoric.” Broder’s 2009 recognition that the Bush presidency was “one of the darkest chapters of American history” came, of course, with no acknowledgment of his 2004 declaration that “the nation does not face ‘another dark age.’”

So when these media and political elites are defending Bush officials, minimizing their crimes, and arguing that no one should be held accountable, they’re actually defending themselves as well. Just as Jane Harman and Jay Rockefeller can’t possibly demand investigations for actions in which they were complicit, media stars can’t possibly condemn acts that they supported or toward which, at the very best, they turned a blissfully blind eye. Bush officials must be exonerated, or at least have their crimes forgotten—look to the future and ignore the past, the journalists all chime in unison—so that their own involvement might also be overlooked.

In this world, it is perfectly fine to say that a president is inept or even somewhat corrupt. A titillating, tawdry sex scandal, such as the Bill Clinton brouhaha, can be fun, even desirable as a way of keeping entertainment levels high. Such revelations are all just part of the political cycle. But to acknowledge that our highest political officials are felons (which is what people are, by definition, who break our laws) or war criminals (which is what people are, by definition, who violate the laws of war) is to threaten the system of power, and that is unthinkable. Above all else, media figures are desperate to maintain the current power structure, as it is their role within it that provides them with prominence, wealth, and self-esteem. Their prime mandate then becomes protecting and defending Washington, which means attacking anyone who would dare suggest that the government has been criminal at its core.