As I write these words on the morning of Wednesday, Dec. 19, high- and low-level officials of the Bush administration involved in torture, and the destruction of the torture tapes, are consulting their criminal lawyers as The New York Times reports that highest-level lawyers in the administration had discussed the destruction of the tapes.
I predict there will soon be new stories about more torture tapes that were destroyed and new stories about more high-level officials that were either tainted or corrupted by this scandal, and others who opposed this travesty who will ultimately testify about who they approached to attempt to prevent it.
Washington and America will momentarily ask once again: What did the president and vice president know, and when did they know it?
In an administration facing an ocean of scandal on multiple and multiplying fronts, this scandal above all will be the Watergate of our times because it involves extremely probable crimes of torture, extremely probable obstructions of justice, and a steady stream of revelations that will only escalate until the inevitable special prosecutor is named.
Congress should, and I predict ultimately will, take the decisive action of seeking evidence, and if necessary file the great contempt case of the Bush years that will be defined clearly and specifically as follows:
Can executive privilege be claimed to hide acts that would be violations of criminal law?
I predict the answer of this Supreme Court, and any Supreme Court, will be unequivocally “no.”
Even a mass pardon by the president, which I have predicted and predict again here, will not solve their problem, because he would have to name so many recipients of pardons, and so many potential crimes that would be pardoned, that it would be both ridiculous and logistically impossible.
What follows is the column I wrote in The Hill newspaper published on Tuesday, Dec. 18 before this new information came to light, and before new revelations about more destruction of more torture tapes that I predict are coming soon:
In unprecedented congressional testimony Brig. Gen. Thomas Hartmann recently refused to say it would be illegal for American POWs to be tortured through waterboarding by our enemies. He couldn’t because a policy claimed to be legal when committed by our government would be equally legal when committed by our enemies against our troops and POWs.
The legal perversion of Gen. Hartmann’s testimony would outrage American military families.
It dramatizes how alien this torture policy is from two centuries of American military and legal tradition, when an American general cannot defend the time-honored rights of American POWs, and America’s enemies could use his testimony as their defense for torture against our troops.
From the days of George Washington, every president, every Congress and every Supreme Court has believed that torture is illegal and violates cardinal American values.
From the days of the Continental Army until today, torture has been opposed by virtually every commander of every branch of military service.
President Bush does not speak for any previous president, all of whom unanimously opposed what he does today.
With all of the discredited practices of the Bush years, his playing on the darker impulses of fear to justify what no previous president, no previous Congress and no previous Supreme Court has ever allowed is testimony to the damage this does to American honor and the threats this creates for American troops.
Of course, the CIA destroyed the torture tapes that were sought as evidence by the 9-11 Commission, courts and Congress.
They were destroyed because they were evidence of abuses that the weight of legal opinion would conclude constitutes criminal conduct under international and American law. Their destruction probably constitutes obstruction of justice, intended to cover up the underlying crimes of the torture itself.
In this warped reality-distortion field that history will condemn as the Bush years, a general cannot even stand up for the rights, protection and safety of American POWs because to condemn abuses against our POWs would condemn the abuses he defends before Congress.
It is outrageous for advocates of torture to say: “We are against torture, but” when every previous President, Congress and Supreme Court have said: “We are against torture, period.”
Torture is a cancer that metastasizes to everything it touches. Our international credibility collapses. Our POWs are exposed to grave new dangers. The destruction of evidence becomes inevitable. The obstruction of justice becomes a reality and the inevitably failed cover-up is exposed.
In fact, the CIA needs to be protected from the bad judgment of our president, as much as the bad actions of our enemies.
Torture corrupts the military chain of command, Civilians who never served in the military order uniformed officers to commit acts that they strongly oppose.
Torture corrupts military justice by creating a super-secret infrastructure of detention centers that enable torture, morphing into an infrastructure of secret courts and secret evidence that almost inevitably lead to secret crimes that are ultimately exposed.
Torture corrupts our democracy as these wrongs are committed without public disclosure, without congressional oversight, and without judicial review that Justice Jackson warned at Nuremberg protects the rule of law in a civilized world.
It is no coincidence that Attorney General Michael Mukasey pursues the doctrine of former Attorney General Alberto Gonzales, trying to exclude Congress yet again, in yet another attack on constitutional checks and balances.
An independent counsel is clearly needed because the Justice Department and CIA have been thoroughly integrated into the actions and justifications for the practices under investigation.
There is no credence when government agencies so thoroughly integrated into the torture policy investigate themselves without independent review.
This constitutes not merely the extreme perception of conflict of interest, but the extreme reality of conflict of interest.
This conflict is even more draconian because of the unexplained reversal of position by the attorney general himself, on this very subject, between his first and second days of testimony during his confirmation hearings.
Military families oppose torture because they have a profound respect for military honor, military justice and military values. Like every previous generation of American presidents and American commanders, they know that torture endangers those they love, who serve so bravely.