the anti-torturers

As I wrote recently, no aspect of the Bush legacy, "is more shameful than its torture practices. It is a shame borne by the entire country. We can’t erase it. But we can – and must – account for it."

I failed to note (because I assumed it went without saying), that we must begin by ending it. President-elect Obama just took a big step in that direction with his (not yet officially announced) nomination of Leon Panetta to head the CIA and his (announced) nomination of Dawn Johnsen to head the Justice Department's Office of Legal Counsel. Of all his nominations to date, these two are among my favorites (along with Carol Browner as White House energy czar and Tom Daschle heading up Health and Human Services and White House health care policy).

Senator Diane Feinstein, the incoming chair of the Senate Intelligence Committee, (with the backing of the outgoing chair of that committee, Jay Rockefeller) immediately threw a fit over the Panetta choice, ostensibly because he is not a CIA insider -- like it's really important that the person heading the CIA be someone who sat by while the agency broke domestic and international law and violated the Constitution. More likely, she was upset because she hadn't been consulted about the choice of Panetta (who was an old rival of hers from California Democratic politics). In any event, after some groveling by Panetta and the Obama team, Feinstein seems to have been mollified and now appears to be on board. (If only Feinstein and Rockefeller had shown as much spine during the past eight years of the Bush administration's lawlessness. Nothing like a little turf battle to bring out the real fighters in them. Torture and illegal wiretapping ... not so much.)

This is what Panetta wrote in an op-ed last March:

More recently, President Bush vetoed a law that would require the CIA and all the intelligence services to abide by the same rules on torture as contained in the U.S. Army Field Manual. But all forms of torture have long been prohibited by American law and international treaties respected by Republican and Democratic presidents alike.

Our forefathers prohibited "cruel and unusual punishment" because that was how tyrants and despots ruled in the 1700s. They wanted an America that was better than that. Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law.

Similarly, this is part of what Dawn Johnsen wrote on a Slate's legal blog last April (in an on-line discussion with Slate's excellent legal correspondent, Dahlia Lithwick -- it's worth reading the whole exchange):

I want to second Dahlia’s frustration with those who don’t see the newly released Office of Legal Counsel (OLC) torture memo as a big deal. Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it — all demand our outrage.

Yes, we’ve seen much of it before. And yes, we are counting down the remaining months. But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law — and not just for the remaining nine months of this administration, but for years and administrations to come.

Dahlia's aptly summarizes this just-released memo's constitutional conclusion: "if the president authorizes it, it isn't illegal."

OLC, the office entrusted with making sure the President obeys the law instead here
told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants. The earlier-leaked 2002 OLC torture memo said the same in connection with the CIA (a program the Bush administration sought to reassure us was extremely limited and controlled). Here, the military is the group exempt from the laws.

As Johnsen notes, the OLC is "the office entrusted with making sure the President obeys the law" but under Bush it had been the office entrusted with making absurd legal arguments, in secret memos that couldn't withstand the light of day, intended to immunize administration lawlessness. The most infamous of these secret OLC memos was John Yoo's infamous "torture memo" wherein (among many outrages) he re-defined torture downward to being only actions that inflict "intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result." Even if it causes death, it isn't torture unless that death was "likely." So, for example, pulling out someone's fingernails is OK. Suspending someone from the ceiling for days so that any time they start to fall asleep handcuffs dig into their hands -- no problem. According to Yoo, Congress couldn't even outlaw these things if it wanted to.

How delightful it is to go back and read the exchange between Dawn Johnsen and Dahlia Lithwick now with the knowledge that Johnsen will likely become the new head of the OLC. (Much more on Johnsen -- and a bit on Panetta -- from Salon's Glenn Greenwald.)

The Panetta nomination is even more delightful. The big question is why the heck he is willing to take the job. Panetta won't even be reporting directly to Obama but rather to the Director of National Intelligence (expected to be Admiral Dennis Blair). But as former White House chief of staff under Clinton, I have no concerns over his ability to navigate the politics and make the changes required at the CIA.

The idea that one needs be a CIA insider to head the CIA is ridiculous. Two of the worst CIA directors in my lifetime were Richard Helms under Nixon -- a lifelong CIA insider -- and Porter Goss under George W. Bush -- a former CIA officer and former chair of the House Intelligence Committee. Helms was prosecuted and convicted for lying to Congress (he denied CIA involvement in the overthrow of Chile's democratically-elected president, Allende, which was later disproved by documents discovered by the Church Committee investigating CIA abuses) -- but was considered a martyr within the agency.

Goss came into the job as CIA director determined to (as Richard Clarke said) "turn Langley into a cheering section for Bush's policies." He replaced competent senior CIA officials with partisan loyalists from his House staff. He made a complete mess of things and lasted only two years. The guy Goss made the executive director of the CIA (the #3 job), "Dusty" Foggo, was later indicted for fraud, conspiracy and money laundering in connection with the bribery case of convicted Congressman "Duke" Cunningham. ("Dusty & Duke" -- sounds like a country western duo. Live from Folsom Prison.)

By contrast, George H.W. Bush, after whom the CIA headquarters in Langley is named, had no CIA experience prior to becoming head of the agency. Indeed, most CIA directors over the past 30 years have not come from inside.

My own view is that there is WAY too much unnecessary secrecy in government. Most secrecy is intended to shield people from embarrassment or accountability or to keep questionable practices or deals from public scrutiny. In the case of the intelligence community, even the budgets are secret. How can you have any kind of accountability if even the budgets are secret? (And how much harm would it really do to national security if Russia or Al Qaeda knew what we were spending on spy satellites and secret operatives? What would our adversaries do differently?) Precisely because of all the secrecy, it is important to bring in outsiders at the top of the intelligence agencies from time to time to uncover incompetence and abuse. And I can't imagine anyone better to do that than Panetta.

Panetta is former head of the Office of Management and Budget and former chair of the House Budget Committee. To get any kind of control over a secret agency like the CIA, you have to be able to dissect the budget. (I would say that this is probably true of any large organization, public or private. But it is particularly true of an organization cloaked in deception and secrecy. Follow the money.) Among other things, he is credited with developing the 1993 budget package that would eventually result in the balanced budgets of the late '90's and the early years of this decade (before Bush blew the budget apart with his tax cuts).

It is also important that Panetta is an experienced customer of the intelligence agencies, both as White House chief of staff and as part of the Iraq Study Group. Above all, he is a competent manager -- an underrated skill over the past eight years.

Obama's appointments to date have reflected his moderate, pragmatic nature and he has made some significant nods toward post-partisanship. In doing so, I think he reflects the majority of the voters in this country who, despite attempts by partisans and the media to make every issue a study in "Crossfire" polarization, are moderate and pragmatic. But they also made it clear in the last election they want change. Don't confuse moderation and pragmatism with the status quo. (There has been nothing moderate or pragmatic about the Bush administration.) When it comes to torture, as with much else, change is coming.

It can't happen soon enough.

Here are some others praising the Panetta pick:

Fred Kaplan (Slate)
Scott Horton (Harper's)
David Ignatius (Washington Post)