CRIMINALS ABOVE THE LAW:

Torturegate: Truth, But No Consequences

This has been one of the most extraordinary weeks in modern American history. The many isolated streams of evidence about the Bush Administration's torture system – and the direct responsibility of the Administration's highest officials for this vast crime – have now converged into a mighty flood: undeniable, unignorable, pouring through the halls of Congress and media newsrooms, lashing at the walls of the White House itself. In the course of the past few days, a series of events has laid bare the stinking sepsis at the heart of the Bush Regime for all to see.

It began last Sunday with the launch of a remarkable series by McClatchy Newspapers, detailing the torture, brutality, injustice and murder that has riddled the Bush gulag from top to bottom. Then came fiery Senate hearings, in which long-somnolent legislators finally bestirred themselves to confront and denounce some of the torture system's architects, including Dick Cheney pointman William Haynes III, who was left reeling, shuffling, dissembling – and bracing for perjury charges after his blatantly mendacious testimony.

Companion hearings in the House produced stunning confirmation of mass murder in the Bush gulag – a bare minimum of 27 killings, among the 108 known cases of death among Terror War captives. This evidence came from rock-solid Establishment figure Col. Larry Wilkerson, former chief of staff to Colin Powell. (Of course, as many captives have been and are being held in "secret prisons," and an untold number of others have been hidden from the Red Cross, there is no way of knowing at this point how many prisoners have actually died or been murdered – or even how many prisoners there are in the gulag.)

And while the McClatchy series and Congressional hearings were going forward, a retired major general of the United States Army directly and openly accused the commander-in-chief of committing a war crime: authorizing "a systematic regime of torture." Maj. Gen. Antonio Taguba – forced out of the service in 2006 for trying to honestly investigate the atrocities at Abu Ghraib – was unequivocal in his statement in a new report by Physicians for Human Rights:

"After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account...The commander-in-chief and those under him authorized a systematic regime of torture."

This shocking, perhaps unprecedented declaration by a senior military officer was just one of many instances during the week when Establishment figures – not just retired officials like Wilkerson and Taguba, but serving officers as well – confirmed and condemned the injustice and criminality of the Bush gulag system. Even corporate media types began openly using the "T" word, after years of ridiculing or marginalizing those who dare call the Administration's "harsh interrogation techniques" what they plainly are.

By week's end, the evidence that George W. Bush, Dick Cheney, Donald Rumsfeld and other top government officials had deliberately created a system of torture which they knew was illegal – indeed, a capital crime – under U.S. law was so plain, so overwhelming, and so handily concentrated that it broke through the levees of institutional cover-up and media complicity that had held this clear truth at bay for so long. The grim facts had finally worked their way into "conventional wisdom." It was now permissible for good "centrist" folk to speak of such things, even condemn them, without being automatically relegated to ranks of "the haters," the "unserious," the "shrill partisans," etc.

And yet, even as this new consensus was forming, you could see the sandbags piling up in the background to make sure that the water didn't reach too far. A line of defense was being laid that would allow the purveyors of conventional wisdom to vent a bit of righteous outrage at official wrongdoing without actually having to do anything about it or admitting of any flaws in their fundamentalist doctrine of American exceptionalism. No one need take any risks, make any effort, or discomfort themselves in any way to rectify the injustice; indeed, even the perpetrators should be left undisturbed. Instead, our uniquely good and smooth-running political system will magically make everything all better, and somehow prevent the bad things from happening again.

This nascent coventional wisdom line was perfectly illustrated in a new piece by Tim Rutten of the Los Angeles Times. Rutten is a lifelong newsman, a liberal of the old school, whose columns have been scathing in their criticism of Bush and all his works. In his latest outing, Rutten doesn't flinch from telling it like it is on Bush's torture regime. Drawing on the Congressional hearings and other sources, Rutten gives chapter and verse on "how the White House forced the adoption of torture as state policy of the United States."

He notes also the highly significant fact that one major impetus behind the construction of the torture system was the Bush Faction's extremist "unitary executive" theory: the crank belief that a president can exercise unbridled, unaccountable authoritarian power in his role as "commander-in-chief." This includes the power to break the law -- and order others to break the law -- as he sees fit. As Rutten puts it:

The fact that these guys seem to have defined executive branch power as the ability to hold people in secret and torture them pushes the creepy quotient into areas that probably require psychoanalytic credentials.

In paragraph after paragraph, Rutten marshals the evidence that "has established definitively that the drive to make torture an instrument of U.S. policy originated at the highest levels of the Bush administration." He notes that the panicky reaction to these revelations in right-wing bastions like the Wall Street Journal "stems from an anxiety that congressional inquiries, like that of [the Senate] committee, will lead to indictments and possibly even war crimes trials for officials who participated in the administration's deliberations over torture and the treatment of prisoners."

In short, Rutten – an experienced, respected, liberal journalist writing for one of the largest newspapers in the land – lays out a compelling case that the President of the United States and his chief officers have committed capital crimes under American law. And what does he propose we do about it?

Nothing.

Absolutely nothing. In fact, he relegates all those who would seek redress of these high crimes to – where else? – the ranks of the unserious, the cranks, the effete whiners:

It's true that there are a handful of European rights activists and people on the lacy left fringe of American politics who would dearly like to see such trials, but actually pursuing them would be a profound -- even tragic -- mistake. Our political system works as smoothly as it does, in part, because we've never criminalized differences over policy. Since Andrew Jackson's time, our electoral victors celebrate by throwing the losers out of work -- not into jail cells.

The Andrew Jackson reference is puzzling. When did early (or late) American electoral victors ever throw the losers into jail cells? Did Thomas Jefferson clap John Adams in irons after besting him for the presidency? Did John Quincy Adams lock Jackson away after his disputed victory in their first contest? But Rutten's lack of historical clarity is nothing compared to the moral muddle that follows:

The Bush administration has been wretchedly mistaken in its conception of executive power, deceitful in its push for war with Iraq and appalling in its scheming to make torture an instrument of state power. But a healthy democracy punishes policy mistakes, however egregious, and seeks redress for its societal wounds, however deep, at the ballot box and not in the prisoner's dock.

The cognitive dissonance of this conclusion was so painful and severe that I had to read it several times to fully take in that it meant exactly what it said: Rutten believes with all his heart that the official practice of deliberate, systematic torture – a clear and unambiguous war crime which he himself has just outlined in careful detail – is ultimately nothing more than a “wretched mistake,” a “policy difference” that should not be “criminalized.” And how can this be? The answer is obvious, if unspoken: because it was done by the United States government – and nothing the United States government ever does can possibly be criminal, or evil. It can only be, at most, a mistake, a conceptual error, an ill-considered policy, a botched attempt at carrying out a noble intention.

If any other country had a policy “to make torture an instrument of state power, " Rutten would undoubtedly condemn it as a vicious evil. In fact, he might well bring out the quote from Thucydides that he used just a few weeks ago, in a piece lauding the stricken "Lion of the Senate," Ted Kennedy:

Kennedy's brother, Bobby, was fond of quoting the ancient Greeks. One of them, Thucydides, once was asked, "When will there be justice in Athens?" He replied, "There will be justice in Athens when those who are not injured are as outraged as those who are."

But it appears that Rutten's outrage at injustice has its limits. It does not extend to actually punishing those responsible for torture and murder – if those responsible are the leaders of the American government. They are to be allowed to finish their terms, then live out their lives in wealth, privilege, comfort and safety. To do otherwise, says Rutten – to insist that no one is above the law – "risks the stability of our own electoral politics."

(This is a point that I've never quite understood about American exceptionalists. On the one hand, they say the system is so strong and resilient that it can magically heal itself no matter what happens. On the other hand, it is apparently so weak and unstable that any attempt to actually apply its laws to the powerful could bring down the whole house of cards. A curious conundrum indeed; but then again, fundamentalisms invariably rest on such ineffable mysteries.)

Somehow, the "ballot box" will redress these "egregious mistakes," says Rutten. Yet surely the real lesson that future leaders (whatever side of the "ballot box" they are on) will take away from this shameful episode is that they will never be held legally accountable for any abuse of power, "however egregious," however clearly criminal it is. Sure, personal peccadilloes like financial chicanery or sexual hanky-panky might land you in hot water. But whatever you do as a matter of state – especially if it involves the infliction of suffering, ruin and death – will not be prosecuted.

This, to Rutten – and the conventional wisdom he represents here – is the mark of "a healthy democracy." Only weird foreigners and sissies ("the lacy fringe left") would wring their hands over bringing torturers and murderers to justice. Sure, mistakes have been made, but the system is strong, the system works smoothly, the system is self-correcting. All will be well, and all manner of things will be well. This is the quintessence of good "centrist" thought. This is the soft, fluffy quilt that will soon envelop the staggering revelations of capital crimes that we saw this week.

As we noted here a few weeks ago, Barack Obama – who has been busy this week bolstering "Blue Dog" supporters of executive tyranny and appointing a gaggle of dim warhawks, has-beens and imperial factotums as his national security team) – has given every indication he too sees the Administration's high crimes as "dumb policies" that don't require any legal redress:

Obama says that any decision to pursue "investigation" of "possibilities" of "genuine crimes" would be "an area where I would exercise judgment." He stressed the need to draw a distinction between "really dumb policies and policies that rise to the level of criminal activity." He said he would not want "my first term to be consumed by what would be perceived by Republicans as a partisan witch hunt."

He then tied his thinking on torture, illegal wiretapping, aggressive war and all the other depredations of the Bush Regime to his stance on impeachment:

"I often get questions about impeachment at town hall meetings. And I've often said, I do not think that would be something that would be fruitful to pursue. I think impeachment should be reserved for exceptional circumstances."

In other words, very strong, credible, evidence-based charges of launching a criminal war of aggression based on deception is not an "exceptional circumstance" worthy of the investigative and prosecutorial process of impeachment. It might just be a "very dumb policy." Very strong, credible, evidence-based charges of knowingly, deliberately creating a regimen of systematic torture is not an "exceptional circumstance" worthy of impeachment; it might not even be worth further investigation by the Justice Department. It too could just be a "dumb policy" that we should forget about – especially if Republicans are going to make a fuss about it.

In any case, it is obvious that to Obama, "what we already know" does not constitute "exceptional circumstances" – otherwise he would already be pressing for criminal investigation, via the impeachment process or by calling for a special prosecutor... He pretends that it is still an open question – "an exercise of judgment" – whether these crimes should even be investigated further, much less prosecuted. He pretends – or even worse, actually believes – that we are not in the grip of "exceptional circumstances," but are apparently just rolling along with business as usual, aside from a few "dumb policies" which he will tinker with and set right.

It has indeed been a remarkable week in American politics. But I fear that the most remarkable thing about it will turn out to be that it had no lasting effect at all.

Chris Floyd has been a writer and editor for more than 25 years, working in the United States, Great Britain and Russia for various newspapers, magazines, the U.S. government and Oxford University. Floyd co-founded the blog Empire Burlesque, and is also chief editor of Atlantic Free Press. He can be reached at cfloyd72@gmail.com.

This column is republished here with the permission of the author.