State Secrets Litigation

Glenn Greenwald is up in arms about the Obama Administration's advancing the same, extreme interpretation of State Secrets Privilege as the Bush Administration:

It's really remarkable what happened. One of the judges on the three-judge panel explicitly asked the DOJ lawyer, Doug Letter, whether the change in administrations had any bearing on the Government's position in this case. Letter emphatically said it did not. Instead, he told the court, the new administration -- the new DOJ -- had actively reviewed this case and vetted the Bush positions and decisively opted to embrace the same positions.

It's a double-edged sword, though, isn't it? By pushing the Bush Administration's interpretation, the Obama Administration ensures that there will be an appellate court ruling on that interpretation, likely followed by a Supreme Court ruling on that interpretation. Either the courts will reject the Bush/Obama Administration arguments, or they will find them constitutional.

Perhaps that's the worst case scenario for opponents of State Secrets Privilege - that the Supreme Court will give the Bush Administration's extreme views its seal of approval. But if the issue isn't litigated, the issue remains open. Even if Obama backs down, a future administration will reassert the extreme interpretation presently before the courts. Is it truly better "not to know"?

Walking... or is it Crossing a Fine Line

Thomas Friedman expands his "suck on this" psychology to the Palestinian territories, arguing that Israel's principal goal in its recent armed conflicts is to destroy civilian infrastructure, and to frighten and punish civilians:

Israel’s counterstrategy was to use its Air Force to pummel Hezbollah and, while not directly targeting the Lebanese civilians with whom Hezbollah was intertwined, to inflict substantial property damage and collateral casualties on Lebanon at large. It was not pretty, but it was logical. Israel basically said that when dealing with a nonstate actor, Hezbollah, nested among civilians, the only long-term source of deterrence was to exact enough pain on the civilians — the families and employers of the militants — to restrain Hezbollah in the future.

Glenn Greenwald responds that Friedman's approach to asymmetric warfare sounds an awful lot like terrorism.

The war strategy which Friedman is heralding - what he explicitly describes with euphemism-free candor as "exacting enough pain on civilians" in order to teach them a lesson - is about as definitive of a war crime as it gets. It also happens to be the classic, textbook definition of "terrorism."...

Other than the fact that Friedman is advocating these actions for an actual state rather than a "subnational group," can anyone identify any differences between (a) what Friedman approvingly claims was done to the Lebanese and what he advocates be done to Palestinians and (b) what the State Department formally defines as "terrorism"?

I'm not endorsing Friedman's interpretation here. As is his wont, he's describing what's happening in his own mind and projecting it onto the rest of the world. But really, it's a deplorable position and one likely to result in even more blowback.

Friedman yammers about how he believes Israel's infliction of pain on Lebanese civilians has deterred Hezbollah from launching missile attacks during Israel's Gaza invasion but, in giving a rather skewed history, he glosses over the fact that Hezbollah and Hamas have different political agendas, and also are of different religious sects. And why even if we assume that Hezbollah has been "deterred" from small attacks, that means next to nothing if hostilities again break out between Israel and Lebanon. As Dan Larison has repeatedly argued, if you choose a strategy of disproportionate response, you may deter smaller conficts, but at a significant potential cost:

If every incident, no matter how small, results in a large-scale response, there is nothing – short of their physical annihilation (which may or may not be achievable) – to keep those whom you are trying to deter from making ever larger and more destructive attacks. They will attempt to do the maximum of damage before the inevitable large-scale response comes. The more disproportionate the response now, the less restrained an enemy will be by deterrence in the future.... The disproportionality of response seems effective in pummeling your adversary this time, but it is only truly effective as a deterrent to others if the adversary is wiped out or permanently disarmed (an objective that would currently require an even more disproportionate response than Israel has so far employed).

Perhaps Friedman hasn't been paying attention, but by all appearances Hezbollah has rearmed and has better, longer-range rockets and missiles and better defenses than ever before. And it's political standing in Lebanon seems undiminished. For what use does Friedman imagine Hezbollah has amassed its new arms, and how much of a popular uprising have the battered civilians of Lebanon managed to present in order to prevent its rearming? Meanwhile, let's look at an important international relationship - Israel's relationship with Turkey. How his all of this going over in Turkey? (Don't you hate it when facts get in the way of armchair chest-thumping?)

Obama's Correct To Look Forward

Without wishing to minimize the bad acts committed by members of the Bush Administration, the need to prevent recurrence, or even the instinct to seek a bit of revenge for the Clinton impeachment, I just can't get on board with this mindset:

Worst of all, Obama (in response to Stephanopoulos' asking him about the number one highest-voted question on Change.gov, first submitted by Bob Fertik) all but said that he does not want to pursue prosecutions for high-level lawbreakers in the Bush administration, twice repeating the standard Beltway mantra that "we need to look forward as opposed to looking backwards" and "my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing." Obama didn't categorically rule out prosecutions -- he paid passing lip service to the pretty idea that "nobody is above the law," implied Eric Holder would have some role in making these decisions, and said "we're going to be looking at past practices" -- but he clearly intended to convey his emphatic view that he opposes "past-looking" investigations. In the U.S., high political officials aren't investigated, let alone held accountable, for lawbreaking, and that is rather clearly something Obama has no intention of changing

Now I'll grant that there are circumstances when we should look backwards and criminally prosecute bad actors from an outgoing administration, and I'll concede that it's difficult to articulate the circumstances under which that is or is not appropriate, but here's one small measure: If the sins aren't sufficient to trigger impeachment by a Congress controlled by the opposition party, that alone raises a serious question not only about whether they are so serious as to trigger criminal investigation and prosecution, but also whether the opposition party shares culpability for having failed to act sooner.

An after-the-fact appointment of a special counsel, whose job is essentially to dig for criminal acts and prosecute those who committed crimes, not only can be easily spun as "revenge for the Clinton impeachment", but sets a precedent that could haunt any outgoing administration, no matter how squeaky clean. Didn't Ken Starr teach us, no matter where you start out, if you keep expanding the scope of your investigation you will eventually find some opportunity to accuse somebody (rightly or wrongly) of crimes, coerce witnesses, set perjury traps... create a great deal of pain and disruption for the nation and its governance and, at the end of the day, quite possibly accomplish nothing meaningful?

Another problem is that when you create a sideshow of the type proposed, it can take everybody's energy and attention away from the very real issues we must address, while looking forward. Thanks in no small part to Bush, this nation has a lot of very serious problems that need to be quickly addressed. The investigation and prosecution of a host of officials of the outgoing administration has the potential not only to interfere with the new administration's focus, it could polarize the nation, and make the Dems seem as small, petty, obsessed, biased and vindictive as Ken Starr looked to them when he finally released his report.

If Justice Department officials are aware of crimes, they can consider whether or not to prosecute them. There are issues that the new Congress should investigate, and it's possible that crimes will be uncovered there as well. We don't need to look away from the past. But despite the temptation and opportunity, and a mile of muck to dig through, I don't think it's necessary or wise to start appointing special prosecutors to ferret out people and acts to prosecute. Even if it doesn't end up looking as counter-productive as Ken Starr's investigation run amok.