The Torture Party GOP Isn't Obama's Fault

Andrew Cohen today takes Barack Obama to task for failing to hold people responsible for torture during the George W. Bush administration, which I think is correct, and assigns some blame to Obama for the GOP pro-torture position, which I think is too strong.

Cohen believes that Obama should have convened a Truth Commission back in 2009. I agree. It would be a very good thing to get on the record, as clearly as possible, whatever intelligence gains -- and deficits -- resulted from torture during the Bush years. I'm fairly confident that torture was a net loss just in its immediate, direct effects, and more so if the indirect effects of damaging US prestige are counted, but I'd be more confident about that if we had a full accounting. (For related points, see Adam Serwer today).

But realistically, there is exactly zero chance that any Truth Commission could change the overwhelming fact that the former Republican Vice President of the United States is going to be out there advocating for torture, and that without something to trump that the odds are very high that a whole lot of other GOP opinion leaders will chose Cheney's position over Barack Obama's, at least as long as Obama is in the Oval Office.

A new Republican president would instantly marginalize Cheney, and if that president chose to publicly re-assert the traditional American opposition to torture then there's a good chance that favoring torture would rapidly become a fringe position again. Until that point, there really is only person who has an excellent chance of marginalizing Cheney and Cheneyism: George W. Bush. If Mr. War On Terror was to declare that torture didn't work, and that it was all a horrible but well-intentioned mistake, I think there's a pretty good chance that most GOP politicians would go along.

That was the thinking, I assume, behind Andrew Sullivan's wonderful open letter to Bush last year; it's the thinking behind my suggestions that Obama issue a blanket pardon for Bush-era torturers, because that might change the incentives for Bush. But in both cases there's really nothing that Obama can do to force the issue, just as there's nothing that Obama can do to get Dick Cheney himself to accept the traditional consensus view. Andrew Cohen should recall that there was a Congressional committee on Iran-Contra, and it totally failed to get Republicans to accept the facts of the case, primarily because the Republicans on the committee -- led by none other than Dick Cheney -- dissented. And while Cohen argues that the 9/11 Commission put conspiracy theories about that event in fringe territory, I don't think that's right, either. Those conspiracy theories were always on the fringe, but the 9/11 Commission did nothing to quiet those conservatives who believed, for example, that Iraq was behind the terrorist attacks.

So, yes, blame Obama for not addressing an issue he should have addressed, but do remember that controlling what the opposition says and believes is far beyond the powers of the presidency.

Cheney and Presidential Weakness

Dick Cheney wasn't an incompetent vice president because he was a stupid man. He, and the president who listened to him far too much for far too long, were incompetent -- on Iraq, on detention, on other things -- because Cheney believed in a flawed theory of presidential power.

That's the takeaway from one of the best things I've read in some time, Jack Goldsmith's article in the NYT Magazine this past weekend, well-titled as "How Dick Cheney Reined in Presidential Power." Goldsmith begins by recapping the famous hospital confrontation involving John Ashcroft, James Comey, himself (of Justice's OLC), and Andy Card and Alberto Gonzalez. He goes on to quite properly set it in the context of a strategy of presidential power based on secrecy and White House dictatorial control:

Unilateralism in secret is sometimes necessary at the height of a crisis, and Cheneyism was effective in the short run. But it is disastrous over the medium and long term. The president cannot accomplish much over time without the assistance of his bureaucracy and the other institutions of government. And he cannot garner that assistance through mere commands. He must instead convince these institutions that his policies are good and lawful ones that they should support.

That's exactly the Neustadtian point that you'll hear me making over and over (full argument here): that circumventing the system is possible in the short run, but then yields entirely predictable disaster. Goldsmith continues:

Cheney...complains about pesky government lawyers, a weak-kneed Congress, activist justices and a treasonous press that exposed, rejected or changed nearly all of the Bush counter­terrorism policies. What he does not say is that his insistence on circumventing these institutions was often responsible for their blowback. The surveillance confrontation resulted when Justice Department lawyers discovered that prior legal opinions were filled with factual and legal errors caused by an absence of deliberation about the complicated program. And damaging leaks about the surveillance program resulted from the perception of illegitimacy inside the government caused by Cheney’s corner-cutting unilateralism.

You may wonder why I'm so obsessed with Watergate, but this is points to one of the main, critical, themes. I mean, Watergate is a great story with great characters and all, but it also reveals much about what presidential power really is and how it works and doesn't work. For example, what Goldsmith is talking about here is what I think of as the Hunt/Liddy problem: why were the president's men during Watergate such inept losers? Was it bad luck (that is, from Nixon's point of view)? Poor management skills? I believe it was instead something systematic. When the president wants to do something, and the system resists, and he chooses to plunge ahead anyway by doing it essentially behind the back of the system...well, then you get Hunt and Liddy, and Ollie North, and "poor legal opinions...filled with factual and legal errors caused by an absence of deliberation about the complicated programs." And: Colin Powell's speech to the UN. And: not just the illegality of torture and Gitmo, but the rank incompetence that we've seen over and over.

Dick Cheney is a good example of all of this exactly because his prior reputation would never have led people to guess that he'd make such a habit of botching things. And yet, botch things he did, over and over. Not because he didn't understand policy, but because he -- and by extension, George W. Bush -- refused to accept the limitations on the presidency imposed by the Constitutional system of institutions. And as Cheney shows and as Goldsmith says, the consequences are predictable: poor policy execution, followed by a loss of presidential power.

Just to be clear: the alternative to Cheneyism isn't passivity. Presidents should fight hard for things, and they should be held accountable when they don't -- although part of what it means to need to bargain to get things done is that some presidential preferences will no doubt fall when the president learns from institutional resistance. What they shouldn't do, however, is to react to that resistance with Constitutionally suspect end runs, whether it's to avoid Congress or to avoid legitimate portions of the executive branch. Whatever one thinks of the ethics of it all, the bottom line remains that it just doesn't work.

Pardon Them

Andrew Sullivan has the latest Bush Administration Guantanamo disgrace: according to the chief of staff to the Secretary of State, it was the Vice President of the United States

whose position could be summed up as “the end justifies the means”, and who had absolutely no concern that the vast majority of Guantánamo detainees were innocent, or that there was a lack of any useable evidence for the great majority of them. If hundreds of innocent individuals had to suffer in order to detain a handful of hardcore terrorists, so be it. That seemed to be the philosophy that ruled in the Vice President’s Office.

This is from a statement to the court under oath, as reported by the (London) Times.   Do click over and read the whole story, and Sullivan's reaction (and see too Conor Friedersdorf).  And stop and think about it for a while. 

Regulars know my position.  It is very understandable that Barack Obama doesn't want to deal with this.  He's not planning to torture anyone.  He's not planning to kidnap people and dump them in a prison thousands of miles from their homes, to let them rot there for the rest of their lives, innocent or not.  He's the guy who is putting a stop to this unAmerican evil, not the guy who did it -- so why, since he's putting a stop to it, should he risk his presidency fighting this fight.  He has so much on his plate -- pundits and pols alike worry that he has too much on his plate.  Can't he just promulgate good policies, and leave it at that?

I'm convinced that he can't.  This isn't going to go away.  Presidential leadership on this issue may be costly, but lack of leadership is going to be even more costly (see, for example, Marc Ambinder's latest update).  Again, regulars know that I believe the least costly way out of it is pardon-plus-commission.  Maybe that's not the answer; maybe someone else has a better idea.  As appealing as patience and muddling through might seem, however (and we know the president's instincts are often for just that, and in many areas those instincts serve him well), I just don't see it working in this area.  I don't see how you can run a foreign policy when stories such as this one are newspapers around the world, and the President of the United States isn't doing anything about it -- and the loudest voices in the out-party are applauding torture and kidnapping.   Really, I'd love for someone to show me a path in which benign neglect works -- not morally, since it obviously doesn't, but pragmatically. 

One more time: a high official in the last administration, under oath, told a court that the administration he was part of had committed terrible crimes. 

Don't ignore this.  Don't.

Defending Politico

Andrew Sullivan recites Dick Cheney's credits, and then concludes:

How this utter failure gets to pontificate on terror after his disastrous record is beyond me. But then, Mike Allen would have fewer pageviews, wouldn't he?

Look, this is pretty simple.  Dick Cheney is one of the leading figures of one of the two major political parties in a democracy.  Leading Republicans say that they do what he says to do because they're afraid of him.  As such, it is the job of the press to let us know what he has to say; in fact, it would be gross negligence to ignore him.

In other words, Sullivan's problem is primarily with the Republican party (and secondarily with Cheney himself), not with Politico. 

I'll grant that a secondary job of the press is to analyze the statements of major party leaders (and of course they should let us hear what both parties say, not just one).  And it is certainly their job -- another primary job -- to report on the news beyond the statements of party leaders.  But that doesn't mean that they should ignore news, and what Republican leaders have to say about Obama is news.  Cheney is, both by credentials and by everyone's behavior, a leading Republican, probably the single leading Republican on national security issues.  I happen to agree with Andrew that his record is one of fiasco upon fiasco, but that's a discredit to him and to the Republicans for listening to him, not a reason for the press to treat him as a pariah. 

If Republicans start to treat him as an embarrassment, then Politico will presumably start to ignore him, just as everyone pretty much ignores whatever Jimmy Carter has to say.  However, there is no sign at all that Republicans are even the slightest bit interested in repudiating Cheney.  Until they do, we're all stuck with him.

Are They Cowards?

Matt Yglesias and Steve Benen are full of contempt today for Bushies who told the NYT's Peter Baker that they actually like Obama's antiterrorism policies, but won't say so publicly because (1) they're afraid of Dick Cheney, and (2) they are pissed at Obama for bashing Bush too much.

On the latter point, fair enough.  But on the former point...well, I can only say that it's pretty clearly a legitimate fear.  Anyone who wants to work in a future Republican administration is well advised to stay on the right side of Cheney and other Republican enforcers.  This may seem odd to liberals, who mostly see the Bush administration as a fiasco, but a future Republican president-elect is unlikely to care who liberals think should be invited to join his or her administration. 

I'd add one thing: it's true that at some point, Republicans who believe that Obama's policies are better for the nation than Cheney's policies should be willing to fight for those policies, and would be rightly criticized for cowardice if they don't.  However, what's at stake (for Republicans) at this point isn't a choice between policies; it's whether to follow a rejectionist strategy in public.  It may not be ethical Best Practices to attack the president regardless of whether you think that he's doing the right thing or not, but it's not cowardice. 

That Cheney "Interview"

I should add: while I do think that it's reasonable to give Cheney a platform to express Republican views of the president, I think the critics are correct in their comments about the Politico story as journalism.

It certainly would be nice to know how Cheney, who apparently thinks that Afghanistan was going well until Obama took office, would respond to a question about why the military thought that a significant increase of troops there was necessary after Obama already increased troop levels this year. Does Cheney believe troop levels were correct for the seven years that the Bush/Cheney administration ran that war? If he thinks (as he apparently does) that more troops are needed now -- more quickly than Obama is sending them! -- what does he think changed between January 19, 2009 and January 20, 2009 that suddenly required lots of new soldiers on the ground? At the very least, Allen and Vandehei might have provided a bit of the factual background.

Republicans deserve to be heard, and they're entitled to Cheney if they want him, but they aren't entitled to presenting their views without fear of tough questions.

Cheney Front and Center

This morning's flap was a Politico story giving full publicity to Dick Cheney's latest anti-Obama rants. Putting aside the substance of Cheney's views (apparently everything was going just perfectly in Afghanistan until Obama took office) and the pathetic claims he's making (Cheney really can't be taken seriously when he's babbling about Obama's decision to follow standard diplomatic protocol as if it were either novel or important), I think the more important question is whether Politico and the press in general are doing something wrong by giving Cheney a platform. Cheney opponents -- here's Greg Sargent, Steve Benen, and Andrew Sullivan. As Benen says:

So, why is Cheney's 90-minute tirade against the president the lead Politico story today?

OK, I have an answer for that.

First of all, it is the press's obligation to give a platform to both parties.

Second, each party should have the opportunity to determine its own positions on issues of public policy, and which people should give voice to those positions.

For the in-party, that's easy: clearly the main people the press should give platforms to include the president and his designated spokespeople, the Speaker of the House, the Majority Leader of the Senate, and relevant committee chairs.

For the out-party, it's more complicated. Cheney (and Bush, who isn't talking) have some credentials to speak for the Republicans; so do McCain and Palin; so do Boehner and McConnell; so do the leading presidential candidates for the next cycle, and the relevant committee ranking members. I suppose I should add that mad bloggin' Michael Steele (update: nothing for the last eight days). American parties aren't set up the way that many world parties are organized, with a clear leader of the opposition and shadow ministers who are the recognized leaders on various topics. Instead, it's a mishmash.

So, how can we tell if journalists get it wrong? That's fairly easy: it's the job of the out-party to keep them honest. If Politico tried to pass off someone from Obama's collection of retired GOP officials who support health care reform as the Official Voice of the Republicans, we would know they got it wrong from the howls of protest from current Republicans, including rapid policy contradictions.

Where does that leave Cheney -- and McCain, who Benen also complains about, or even talk-show faves Giuliani and Gingrich, who get tons of air time despite minimal and aging credentials? Apparently, reporters are doing little wrong by using them for the Republican party line. After all, the complaints, as far as I can tell, exclusively coming from opponents of the Bush/Cheney administration. Those complaints are wrong: opponents of the Republicans don't get a vote on which Republicans should get quoted. Moreover, Republicans do seem to follow Cheney's lead, whether it's on his complaints about torture, the KSM trial, or "dithering."

However, it's possible that things are changing. Greg Sargent reports that Republicans are now complaining off the record about Cheney. That's interesting, as it hints at the possibility that there may be considerable inner conflict among Republicans about their current public leadership. But it also makes it clear that, for now at least, Cheney is winning that battle. Republicans could isolate him overnight by dismissing him, publicly (including refusing to quote his lines and subscribe to his positions and arguments), and by making it clear to reporters privately that he doesn't speak for them, but that's not what's happened so far.

Quick summary: Republicans are entitled to be heard, and Republicans, not their opponents, get to decide who represents them.

If they want someone who sounds like a "random right-wing radio loudmouth in a third-tier market," well, that's their choice.