Constitutional Law Professor Charges Citizenry With Responsibility for Bringing Accountability...
By Brad Friedman on 12/18/2008, 5:06pm PT  

As Jon Ponder noted here on Tuesday, a bi-partisan U.S. Senate panel has found [PDF] that George W. Bush was responsible for approving War Crimes (torture and abuse) at the Abu Ghraib prison in Iraq, Dick Cheney admitted in a recent interview to helping to approve War Crimes (torture and abuse) in interrogations, and the corporate media --- with the lone exception of MSNBC --- have been virtually as silent on what may be the most offensive crimes ever committed by an Executive Branch in the U.S. as they were during the lead-up to and follow-through on the War on Iraq, when those same officials sent our nation into war on the basis of demonstrable lies.

George Washington University's highly-respected constitutional law professor Jonathon Turley, noting the War Crimes now known and admitted to by Bush and Cheney, asked Keith Olbermann Tuesday night, "If someone commits a crime and everyone's around to see it and does nothing, is it still a crime?"

(Please watch the video at right, or read the text transcript at the end of this article.)

During the discussion, Turley mentioned --- no less than three different times --- that it'll be up to the citizens whether or not any action is actually taken to prosecute those who committed these crimes.

But is there any real basis --- in 2008 --- for his well-meaning argument? Not bloody likely...

"It will ultimately depend on citizens, and whether they will remain silent in the face of a crime that's been committed in plain view," Turley suggested. "It is equally immoral to stand silent in the face of a war crime and do nothing, and that is what the citizens are doing."

He went on to argue: "There's this gigantic yawn as we hear about a war crime on national television being discussed matter-of-factly by the Vice President."

But how much can citizens actually do, particularly with the sparse amount of information they've been presented? They hit the streets to protest by the millions, prior to and during the War on Iraq, and the bulk of the media didn't bother to even cover it. Accidentally paraphrasing Turley earlier today, Jill C. guest blogged the question: "If something happens in Washington and no one reports it, does it actually happen?"

I'm currently driving through Oklahoma (passenger seat) as I write this. Sean Hannity is on the radio, and a station promo just announced he'll be followed by Michael Savage for three hours then Laura Ingraham for three hours, then John Gibson for three hours. I'm guessing Rush Limbaugh was on before Hannity. So, in those 15 consecutive hours of rightwing talk --- on our publicly owned airwaves --- who exactly will be informing citizens of the documented evidence of War Crimes committed by George W. Bush and Dick Cheney?

Yes, if the citizens began throwing shoes everywhere by the millions, someone in the corporate mainstream media might cover it somewhere. But without the daily barrage of real media, covering the topics that actually matter, with the attention they deserve, the citizens are often clueless, and otherwise virtually powerless, in this wingnut-fed media world we've allowed to be created around us.

If you doubt any of that, just ask yourselves what we'd be listening to on talk radio, and thus watching on the cable news nets, and thus see debated on the floor of Congress, had a bi-partisan U.S. Senate panel found that President Bill Clinton had approved War Crimes that hastened the deaths of thousands of U.S. troops, just before Vice-President Al Gore went on ABC News to admit it, and even crow about it. You suppose that coverage might help inspire a "citizen" uprising in that case? You bet. But it is, for the moment, a wingnut world. We just live in it.

Ponder's spot-on conclusion from his Tuesday article is well-worth quoting again if you didn't catch it the first time...

This news has not received a fraction of the coverage given to the scandal involving the alleged attempts by Illinois Gov. Rod Blagojevich --- a Democrat --- to sell Pres.-Elect Barack Obama's U.S. Senate seat. Statehouse corruption is certainly newsworthy, but as criminal enterprises go, it is far less consequential than the conspiracy by Bush, Cheney, and other top officials to create an illegal torture and prisoner-abuse regime inside the U.S. government.

Allowing Bush, Cheney, and company to escape justice now risks repercussions in the future. It radically increases the likelihood that U.S. citizens will be tortured when they are captured. It also sends the signal to future corrupt politicians like Bush and Cheney that they can get away with crimes such as these.

Equally as troubling is the media's collective disinterest in these developments, and the eery similarity with their collective silence and lack of curiosity about Bush's bogus rationale for invading Iraq --- a dereliction of duty that has cost the United States a steep price in both blood and treasure.

Does the citizenry simply not care about War Crimes? Of course they do. But not unless they know about them, and not unless the argument that they occurred, and the evidence of it, is presented in the detail that such an issue merits. While a handful of --- or even just one or two --- outraged citizens who take action actually can make enormous differences on the local level, accountability for international War Crimes requires untiring, responsible, focused media to inspire the mobilization of a nation.

Such as it is, these crimes were committed by Republicans, and didn't overtly involve sex, so they don't actually matter.

Arguably, as Turley noted, none of it even happened at all. "I think that's really the argument of this administration: 'It can't be a crime because no one's prosecuted us for it.'"

It's good to be King.

The text transcript from Keith Olbermann's 11/16/08 MSNBC interview with Jonathon Turley follows below...

KEITH OLBERMANN: …an even greater admission from the Vice President in that interview with ABC, he also seems to have confessed to a war crime. Mr. Cheney not only defending the tactics used against terror suspect Khalid Sheik Mohammed, including waterboarding, but also coming close to admitting he authorized them...


JONATHON KARL: Did you authorize the tactics that were used against Khalid Sheikh Mohammed?

DICK CHENEY: I was aware of the program, certainly, and involved in helping get the process cleared, as the agency in effect came in and wanted to know what they could and couldn't do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.

OLBERMANN: Of course, Cheney insists what was done to Khalid Sheik Mohammed was not torture, and of course that's not actually the order in which events transpired, as the Senate's new bipartisan report [PDF] on the abuse of detainees in U.S. custody in Guantanamo Bay, Abu Ghraib and elsewhere makes clear. First, the President and Vice President signed off on the torture of detainees, then the CIA came looking for legal cover on the torture it had already been ordered to commit.

Let's turn now to Jonathan Turley, constitutional law professor with George Washington University. Jon thanks for your time tonight.


OLBERMANN: So, as overly dramatic as this question will sound, did Dick Cheney just confess to a war crime?

TURLEY: Yeah, it's an interesting question, isn't it? It's like that type of Zen question: if someone commits a crime and everyone's around to see it and does nothing, is it still a crime? And I think that's really the argument of this administration, it can't be a crime because no one's prosecuted us for it.

But it most certainly is a crime to participate - to create - uh, to in many ways monitor a torture program. And indeed, it's one of the crimes that defines a nation committed to the rule of law. If you have to create a new nation, one of the first things you do is to disavow this form of illegality.

So you have the Vice President sitting there saying, "yeah, we talked about it, they came to me, I supported it, and I helped put it through." The only problem is what he is describing is most certainly and unambiguously a war crime.

OLBERMANN: Except if, as you suggest, nobody prosecutes him for that, which - which it jumps ahead to the lasting legacy of what happens if the next administration does not press this. Do we let, you know, the international court at The Hague come in and take over all our responsibilities for policing our own act here, or where does this go domestically if he's made such a statement?

TURLEY: Frankly, Keith, that's what worries me the most, is that you can't talk about change without having some moral component to it. It's not just about creating jobs or lowering the price of gasoline. What occurred in the last eight years was an assault on who we are. And I think that President-elect Obama is going to have to decide whether he wants power without principle or whether he wants to start with a true change, to say that no matter where the investigation will take us, if there are crimes to be found they will be prosecuted.

Now, right now, many leaders in Congress are trying to create a new commission that is designed to avoid any criminal prosecution, and those leaders happen to be Democratic leaders. But it will ultimately depend on citizens, and whether they will remain silent in the face of a crime that's been committed in plain view.

OLBERMANN: A little less obvious, perhaps, because there's no confession up front, but what was in that Senate report, that the person who authorized all the abuse and torture of the prisoners at Abu Ghraib in Iraq was President Bush, could that be a war crime?

TURLEY: Well, it most certainly can. That's the amazing thing about all of this, is that the fact that this is a war crime is, is, is pretty much accepted by most legal experts - in fact, it's hard to find one who says that it's not.

Waterboarding goes back to the Spanish Inquisition; it wasn't some invention of Dick Cheney's mind. It was something we prosecuted Japanese officers for when they did it against our soldiers. The English send people to death for it. We prosecuted people, again, even earlier than World War II, in the Philippines. It is a well-established war crime. It's not the law that's in question here.

The question is the politics, and most importantly whether the citizens of this country will understand that they can't simply treat Cheney like some Darth Vader who controls their very thoughts and actions. It is equally immoral to stand silent in the face of a war crime and do nothing, and that is what the citizens are doing. There's this gigantic yawn as we hear about a war crime on national television being discussed matter-of-factly by the Vice President.

And by the way, Keith, there was a hearing, not that long ago, which was equally shocking, with an administration official sort of casually comparing different types of waterboarding, like the stuff that Pol Pot used as opposed to the Spanish Inquisition. And I stood there in disbelief that in Congress we were having this rather pleasant conversation about American-style waterboarding.

OLBERMANN: But is that, what you're referring to in there, the 'collective yawn', is that the legal principle on which Dick Cheney is resting his case? That waterboarding is not torture, therefore it is not illegal, therefore it would not be a war crime?

TURLEY: Well, in my view there is no plausible legal theory because there is existing legal precedent establishing that this is a war crime. That's why Attorney General Mukasey refused to answer the question - because he could not answer the question at his confirmation, 'is waterboarding a crime', a war crime, because he knew that the case is established that it is, and if he answered that question there would be serious repercussions.

OLBERMANN: All right, a hundred dollars to the senator who asks Eric Holder that question next month. Constitutional law professor Jonathan Turley - as always, great thanks, Jon.

TURLEY: Thanks, Keith.