Not that the evidence against him isn't compelling. Or at least it is compelling enough to inspire John Dean, who is something of an expert in the highly specialized high crimes and misdemeanors field, to write "It Appears That Karl Rove Is in Serious Trouble" for FindLaw.com.
Although he argues that the Identities and Protection Act is too vague and too complex to be of much bother to the White House deputy director, Dean believes "there is increasing evidence that Rove (and others) may have violated one or more federal laws."
As Dean sees it, Rove et al are vulnerable to prosecution under Title 18, United States Code, Section 641, a law that prohibits theft (or conversion for one's own use) of government records and information for non-governmental purposes. Its broad language covers leaks, according to Dean, and it has been used by the Bush Justice Department in a similar, but far more trivial, case.
"I am referring," Dean writes
to the prosecution and conviction of Jonathan Randel. Randel was a Drug Enforcement Agency analyst, a PhD in history, working in the Atlanta office of the DEA. Randel was convinced that British Lord Michael Ashcroft (a major contributor to Britain's Conservative Party, as well as American conservative causes) was being ignored by DEA, and its investigation of money laundering. (Lord Ashcroft is based in South Florida and the off-shore tax haven of Belize.)Whether or not Rove gets away with his claim that he didn't know he was leaking "classified information," it's pretty clear from his insistence to Matt Cooper, as described in the reporter's emails, that their conversation was on "double super secret background," at the least Rove recognized that the information he was peddling was sensitive.
Randel leaked the fact that Lord Ashcroft's name was in the DEA files, and this fact soon surfaced in the London news media. Ashcroft sued, and learned the source of the information was Randel. Using his clout, soon Ashcroft had the US Attorney in pursuit of Randel for his leak.
By late February 2002, the Department of Justice indicted Randel for his leaking of Lord Ashcroft's name. It was an eighteen count "kitchen sink" indictment; they threw everything they could think of at Randel....Randel, faced with a life sentence (actually, 500 years) if convicted on all counts, on the advice of his attorney, pleaded guilty to violating Section 641. On January 9, 2003, Randel was sentenced to a year in a federal prison, followed by three years probation. This sentence prompted the US Attorney to boast that the conviction of Randel made a good example of how the Bush Administration would handle leakers.
Add to that the fact that Rove immediately alerted the no. 2 White House security adviser about the interview and told him he had tried to steer the journalist away from allegations being made by the operative's husband that the administration was misusing faulty intelligence about Iraq's nuclear weapons program to promote war, and you have evidence that "the architect," as the president likes to call him, knew what he was doing. A July 11, 2003 e-mail, obtained by the AP, from Rove to then-deputy national security adviser Stephen Hadley, is proof that at least one intelligence official knew Rove had talked to Matthew Cooper in time to intervene before the Time magazine reporter divulged undercover CIA officer Valerie Plame's identity.
On the other hand, in the phone conversation as described by Cooper -- which was initiated by the reporter, not Rove, after all -- the White House aide sounds less like a Machiavellian political mastermind and more like a mid-level government bureaucrat trying to score points with a media contact. Don't forget how school yard this all is. These people may have enormous power, but it's important to keep in mind that most of them are like kids playing dress-up in their daddies' clothes. "Double super secret background." Please.
While it would be satisfying to see Rove humiliated -- and with his fortunes now also tied to developments in the burgeoning scandal around the Democrats' #2 nemesis, Tom DeLay, it seems increasingly possible that he will be, his departure won't result in any changes in Bush administration policies. The Rove affair will not be a repeat of Watergate. The special prosecutor can find proof that Bush gave Rove an explicit written order to out Plame, and it won't matter. It won't lead to Bush's resignation. It won't bring the officials who made torture an instrument of public policy any closer to justice. It won't end the war.
As Daniel Schorr wrote in yesterday's Christian Science Monitor, the "Rove Leak Is Just Part of a Larger Scandal."
"Let me remind you," Schorr begins,
that the underlying issue in the Karl Rove controversy is not a leak, but a war and how America was misled into that war.If we are going to pursue the goal of seeing political criminals brought to account, the focus must remain on the architects of war and torture like Bush and Rumsfeld, not on political handymen like Rove or corrupt hacks like DeLay. Did getting rid of Newt Gingrich -- fun though it was -- advance the fortunes of the Republic? Hard to see how. Neither will saying farewell to Rove and DeLay so long as Bush, Cheney, Rumsfeld and their interchangeable henchmen continue unimpeached and the Right maintains its grip on Congress.
In 2002 President Bush, having decided to invade Iraq, was casting about for a casus belli. The weapons of mass destruction theme was not yielding very much until a dubious Italian intelligence report, based partly on forged documents (it later turned out), provided reason to speculate that Iraq might be trying to buy so-called yellowcake uranium from the African country of Niger. It did not seem to matter that the CIA advised that the Italian information was "fragmentary and lacked detail."
Prodded by Vice President Dick Cheney and in the hope of getting more conclusive information, the CIA sent Joseph Wilson, an old Africa hand, to Niger to investigate. Mr. Wilson spent eight days talking to everyone in Niger possibly involved and came back to report no sign of an Iraqi bid for uranium and, anyway, Niger's uranium was committed to other countries for many years to come.
No news is bad news for an administration gearing up for war. Ignoring Wilson's report, Cheney talked on TV about Iraq's nuclear potential. And the president himself, in his 2003 State of the Union address no less, pronounced: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa."
Wilson declined to maintain a discreet silence. He told various people that the president was at least mistaken, at most telling an untruth. Finally Wilson directly challenged the administration with a July 6, 2003 New York Times op-ed headlined, "What I didn't find in Africa," and making clear his belief that the president deliberately manipulated intelligence in order to justify an invasion.
One can imagine the fury in the White House. We now know from the e-mail traffic of Time's correspondent Matt Cooper that five days after the op-ed appeared, he advised his bureau chief of a super-secret conversation with Karl Rove who alerted him to the fact that Wilson's wife worked for the CIA and may have recommended him for the Niger assignment. Three days later, Bob Novak's column appeared giving Wilson's wife's name, Valerie Plame, and the fact she was an undercover CIA officer....retaliation against someone who had the temerity to challenge the president of the United States when he was striving to find some plausible reason for invading Iraq.
The role of Rove and associates added up to a small incident in a very large scandal - the effort to delude America into thinking it faced a threat dire enough to justify a war.
A step on the path to accountability is outlined by former U.S. Representative Elizabeth Holtzman in a brief published in the July 18 edition of The Nation. The one-time Brooklyn D.A. is outraged that in the 16 months since "the terrible revelations of torture at Abu Ghraib hit the front pages in April 2004, no senior officials in the US military or the Bush Administration have yet been held accountable.
"The scandal has shamed and outraged many Americans," she continues,
in addition to creating a greater threat of terrorism against the United States. But it has prompted no investigative commission (in the manner of the 9/11 commission) with a mandate to find the whole truth, or full-scale bipartisan Congressional hearings, as occurred during Watergate.A veteran of the Watergate hearings, Holtzman believes that "higher-ups can be held to account. Difficult as it may be to achieve, our institutions of government can be pressured to do the right thing. If the public and the media insist on thorough investigations and appropriate punishments for those implicated -- all the way up the chain of command -- they can prevail.
Indeed, it is as though the Watergate investigations ended with the prosecution of only the burglars, which is what the cover-up was designed to insure, instead of reaching into the highest levels of government, which is what ultimately happened.
"No less a figure than Alberto Gonzales," Holtzman says,
expressed deep concern about possible prosecutions under the War Crimes Act of 1996 for American mistreatment of Afghanistan war detainees.Holtzman wonders "whether the gimmick of 'opting out' of the Geneva Conventions for the war in Afghanistan will provide Gonzales's promised 'solid defense' to any War Crimes Act prosecution."
This relatively obscure statute makes it a federal crime to violate certain provisions of the Geneva Conventions. The Act punishes any US national, military or civilian, who commits a "grave breach" of the Geneva Conventions. A grave breach, as defined by the Geneva Conventions, includes the deliberate "killing, torture or inhuman treatment" of detainees. Violations of the War Crimes Act that result in death carry the death penalty.
In a memo to President Bush, dated January 25, 2002, [then White House counsel] Gonzales urged that the United States opt out of the Geneva Conventions for the Afghanistan war--despite Secretary of State Colin Powell's objections. One of the two reasons he gave the President was that opting out "substantially reduces the likelihood of prosecution under the War Crimes Act."
But whatever its relevance to Afghanistan, the War Crimes Act is unquestionably applicable to detainee abuse at Guantanamo and Abu Ghraib. Holtzman writes that,
"(a)lthough the term 'inhuman treatment' is not defined in the War Crimes Act or in the Geneva Conventions, there is little doubt that US personnel subjected Iraqi detainees to inhuman treatment by, for example, forcing hooded prisoners into stressful positions for lengthy periods of time, using dogs to bite and intimidate naked prisoners, compelling prisoners to engage in or simulate sexual acts, dragging naked prisoners on the ground with a leash around the neck, beating prisoners, and on and on.The real question is not whether prisoners in Iraq (and at Gitmo -- as American as Kansas and just as fully under the authority of the Constitution) were subjected to cruel and inhuman treatment -- we, and the whole world, saw the pictures -- but how high up responsibility goes for these brutal crimes.
Even beyond the notorious Abu Ghraib photos, there is a huge body of evidence documenting inhuman treatment. Maj. Gen. Antonio Taguba's inquiry found 'sadistic, blatant and wanton criminal abuses.' The report issued by a panel headed by former Defense Secretary James Schlesinger found 'widespread' abuses. And the International Red Cross repeatedly protested the treatment of Iraqi prisoners.
"Under well-established principles of international law," argues Holtzman, "officials in the chain of command who order inhuman treatment or who, knowing about it, fail to stop it are responsible. The 'chain of command' doctrine is undoubtedly applicable to War Crimes Act prosecutions. But even if it weren't, higher-ups could be held responsible under the principles of conspiracy or aiding and abetting the crime under normal federal criminal law."
The president likes to blame a few "bad apples" for the abuse of Iraqi prisoners, but any cataloging of the rotten fruit would have to include General Antonio Sanchez, who ordered the harsh interrogation techniques at Abu Ghraib while serving as the top military officer in Iraq, and Defense Secretary Rumsfeld, who similarly issued directives permitting coercive interrogation that were modified only after protest by military lawyers. It certainly appears that Rumsfeld and General Sanchez violated the War Crimes Act, as did anyone who followed illegal orders without complaint.
Does responsibility fall on the president himself? If he wants to marshal cliches, how about a simple admission that "the fish rots from the head" instead of the tireless effort to pass the blame to alleged rotten apples at the bottom of the barrel? What in this sordid mess is more shameful than the determination by the military brass and their political overlords to leave privates and corporals holding the bags of detritus they've created? Whatever happened to "the buck stops here"? If we're offended by nothing else, we should at least be outraged by the behavior of generals and cabinet ministers who would let grunts do time for their crimes.
The Washington Post, meanwhile, has found additional evidence that Bush's suspension of the ban on torture under American law and the Geneva Conventions was ordered over the objections of the judge advocate generals (JAGs to you crime show fans) for the Army, the Air Force and the Marine Corps.
A law enacted in 1994 bars torture by U.S. military personnel anywhere in the world. But the Pentagon working group's 2003 report, prepared under the supervision of general counsel William J. Haynes II, said that "in order to respect the President's inherent constitutional authority to manage a military campaign ... [the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority." Haynes -- through Daniel J. Dell'Orto, principal deputy general counsel for the Defense Department -- wrote a memo March 17 that rescinded the working group's report, and Dell'Orto confirmed that withdrawal yesterday at the hearing. According to a copy of the memo obtained by The Washington Post, the general counsel's office determined that the report "does not reflect now-settled executive branch views of the relevant law."As inattentive as Bush likes to appear, it beggars belief that such a broad exception could have been entertained without consultation with the White House and the Justice Department. The memorandum urges that torture should be considered legal for anyone anywhere as long as the president wants it. You have military lawyers opposing the use of torture. You have the secretary of state, an experienced military leader, advising against its employment. And yet the White House lawyer is ordered to prepare a legal strategy to immunize officials from being arrested and tried for promoting or condoning torture. It's hard to avoid the conclusion that the Bush White House, far from being ignorant of the abuses, was driving them.
In the months since the cruelties at Abu Ghraib became public knowledge, the chief talking point among Bush defenders has been that the president never gave an order that resulted in the torture of detainees in Afghanistan, Iraq or Guantanamo, though there is no way of knowing if this is true because whatever he ordered is secret. But what should we make of the attempt by Bush Justice Department to redefine torture in the hope that this would inoculate officials from possible prosecution under American laws that prohibit torture? You can't claim to not know that you're committing a crime and simultaneously be planning the trial strategy for your defense.
Where is George Orwell when you need him? (Not on Fox or CNN, that's for sure.)
Holtzman cites "tantalizing suggestions that Bush may have condoned or possibly authorized coercive interrogation techniques. For example, a May 22, 2004, FBI agent's memo about interrogations in Iraq, made public under the Freedom of Information Act, repeatedly cites an executive order issued by President Bush that authorized 'sleep deprivation, stress positions, loud music, etc.' (The administration denied this and the FBI refused to comment.)" Also left open is whether the CIA was given a wink and a nod by the White House with regard to its use of torture in interrogating Afghani and Iraqi prisoners. What's bad for the FBI may be okay for the CIA.
"To resolve the question, then, of the responsibility of higher-ups for torture and inhuman treatment in Iraq," Holtzman continues,
"there needs to be full disclosure of directives issued by President Bush and other top officials on the treatment of detainees and a full inquiry into what they knew about the serious mistreatment of detainees and what steps they took to stop the mistreatment once it came to their attention.
"If the President did authorize inhuman treatment -- or, knowing that such treatment was ongoing, failed to stop it -- is he punishable under the War Crimes Act? White House counsel Gonzales did not specify any limits on who might be subject to prosecution in his January 2002 memo. And Attorney General Ashcroft in his Congressional testimony specifically denied that President Bush committed any crime. In making that statement, the Attorney General may have been relying on a doctrine advanced in the Justice Department's August 2002 torture definition memorandum, which argued that, under the Constitution, a Commander in Chief's capacity to conduct a military campaign cannot be constrained by US laws. In other words, as a law unto himself, the President cannot violate laws, because he doesn't have to obey them. During his confirmation hearings to replace Attorney General Ashcroft, Gonzales was repeatedly asked to repudiate the position that a President has the right as Commander in Chief to break US laws, but refused to do so.
The claim that a President, whether Bush or any other President, is above the law strikes at the very heart of our democracy. It was the centerpiece of President Nixon's defense in Watergate -- one that was rejected by the courts and lay at the foundation of the articles of impeachment voted against him by the House Judiciary Committee.
Of course, President Nixon's national security claims in Watergate were entirely bogus. Breaking into a psychiatrist's office and wiretapping journalists and White House staff phones had nothing to do with national security; they were blatantly political efforts to get damaging information on electoral opponents. And getting the CIA to stop the FBI's investigation into campaign funds was purely an obstruction of justice.
Courts have not directly ruled on a President's powers to violate the US anti-torture statute or the War Crimes Act. But they have found limits on a President's claims of unchecked power as Commander in Chief. The Supreme Court rejected President Truman's contention that as Commander in Chief he could seize steel mills during the Korean War to keep them running. Similarly, the Supreme Court repudiated President Bush's claim that as Commander in Chief he had unlimited powers to incarcerate prisoners at Guantanamo. As Justice Sandra Day O'Connor stated, "A state of war is not a blank check for the President."
To take the full measure of your disgust at the brutalities conducted in your name, take a look at "Defining Humane Down," Marty Lederman's ongoing analysis of the Schmidt report on Guantanamo. Yes, the Schmidt report says, the treatment of detainees was "abusive and degrading," but it was also "humane." And, besides, the Army Field Manual 34-52, since the 1960's the guide to interrogation techniques that are acceptable within the military, can be shown to permit a certain amount of discomfort even for POWs nominally protected by the Geneva Conventions. You may have to allow for a certain amount of degradation of language since the 1960s to arrive at this conclusion, but if there is any lesson in recent history it is that nothing is as it ever was anyway.
A benefit of the Schmidt report, which is otherwise largely an apologia for abuse, is that it makes clear that nearly all of the flourishes of humiliation and torture enjoyed in the Abu Ghraib home videos were pioneered at Gitmo. It turns out that Charles Graner and the hapless Lynndie England are not the Clyde Barrow and Bonnie Parker of torture. In their movies, they barely rise to the level of cartoon characters, so it's no surprise to find out that they were just following orders, albeit enthusiastically, when they forced Muslim prisoners to masturbate each other wearing women's underwear on their heads. Instead, we learn that what the Schmidt report calls "the creative application of authorized interrogation techniques" was, well, authorized, that is to say, policy, pure and simple.
"If you recall Abu Ghraib," as Andrew Sullivan reminds us, "you will remember how almost every one of these techniques was deployed on the night shift. This is a critical point. The kind of techniques used in Abu Ghraib - sexual humiliation, hooding, use of dogs, tying prisoners up in 'stress positions,' mandatory nudity, humiliating prisoners for their religious faith, even the famous Lynndie England leash - were all developed at Guantanamo Bay under the strictest of supervision. What we were told were just frat-guy, crazy techniques on the night shift had been deployed by the best trained, most tightly controlled, most professional interrogation center we have. The Schmidt report argues that, while some of this was out of bounds, it was only because of some extra creativity, not because the techniques themselves were illicit, or unauthorized by Rumsfeld and Bush. Abu Ghraib is and was policy - just policy absorbed by ill-trained, unprofessional hoodlums. But those hoodlums didn't get their ideas from thin air. They got them from the Pentagon and the White House."
There is no way of knowing at this stage whether the leaders of this administration will finally be taken to task for their actions. You can almost feel sympathy for poor Karl Rove, subject of the attentions of a special prosecutor while crimes so much more serious than his go unattended (in fact, seeing your petty offense used as one more excuse not to look at the real bad guys). And there is no way at this point to predict whether the special prosecutor in the leak case will attempt to make his bones by bringing down a powerful Washington figure like Rove or be content to assure his welcome in the Bill Frist or Lindsay Graham administration by sitting by while the likes of Judith Miller does time for, well, nothing.
"In the final analysis," as Elizabeth Holtzman has it, "there is no sure way to compel the government to investigate itself or to hold high-level government officials accountable under applicable criminal statutes. But if the public does not seek to have it happen, it will not happen. Those in the public who care deeply about the rule of law and government accountability must keep this issue alive. Failure to investigate wrongdoing in high places and tolerating misconduct or criminality can have only the most corroding impact on our democracy and the rule of law that sustains us."
Lastly, though, Dan Schorr is right that it is the illegal and unconscionable war and how Americans were deceived into supporting it that is most in need of addressing. In Salon yesterday, Joe Conason called for "An Honorable Withdrawal." "The sooner we get out of Iraq," he wrote, "the sooner we will be able to reunite the Western alliance, reestablish alliances with modern Arab and Muslim governments, and refocus our forces and resources on the real threats to our security." He's right, of course, except that no more than anyone else has he an idea how this extrusion is to be accomplished.
"The immediate departure of coalition troops might well plunge the entire country into a sectarian bloodbath," he worries, "and leave it to the mercies of Baathist murderers or Iranian mullahs. Having promised freedom and democracy to the Iraqis, and cost them many lives and incredible damage to their heritage and infrastructure, we owe them better than that." But beyond suggesting that maybe we can work something out by negotiating with the Sunnis, how we pay what we owe is left for a future column.
Many of those on the left who opposed the attack on Iraq in the first place and predicted that it would be a "quagmire" find themselves in a particularly impossible position, at once convinced that we are no place we should have ever been and yet fearful that our hasty withdrawal will precipitate a disaster for Iraq, for the Middle East and for the United States beyond anything we've witnessed thus far.
But maybe we shouldn't be looking to changes in policy toward Iraq as the first step. Maybe, before anything else, we need not a change in policy but a change in policy-makers. Maybe -- can it really have come to this? -- maybe we need to consider once again using the constitutional mechanisms available to us, in this case to hold accountable the people who have undermined our values, destroyed our reputation among nations, bankrupted us, lied to us, and killed nearly two thousand of us along with untold numbers of Iraqis (to begin with only the most obvious complaints in the indictment). Maybe the naive peace activists have been right all along. Maybe Cynthia McKinney and Rep. Jan Schakowsky aren't so wacky after all. Maybe Rep. Barbara Miller was courageous, not foolhardy. Maybe it's worth your time to pay a visit to http://www.impeachnow.org/. Maybe Ralph Nader and Kevin Zeese are right when they write in the Boston Globe that it is time to consider using The I Word.
Maybe the only way to get the U.S. out of Iraq will be to get Bush out of Washington.
and his newsblog, 
it would be wrong, but I'm amazed that by now some good souls have not chosen to sneak down to Main Street in the middle of the night to paint mid-block crosswalks between Ashland and Hill and between Hill and Ocean Park. With the staff preoccupied with redeveloping downtown, it could be months or years before anyone in City Hall notices they're there, and even then it would only be fair if it took a staff report and the hiring of consultants before they could be painted out again. In the meantime, walkers will be crossing the street more safely, especially if the midnight safety commandos also happen to install a couple of those mid-street traffic markers you see in other towns (I like the ones that depict a policeman holding up his hand, especially if it's full-sized). As I've said before, the cemeteries are full of people who were alive and kicking when the Ashland-Hill crosswalk was first promised. How long does this neighborhood have to wait for an improvement even this minuscule?
