A Different Kind Of Expendiency

So the OLC final torture memos are out. They make grim reading.

History helps put them into a broader context. How a new ruling regime attempts to radicalize and eventually suborn legal norms into ideological formlessness is an important barometer of their progress in freeing themselves from the despised Older Order’s shackles. The shirt or barracks color is not particularly relevant. It’s a manifestation of sociological and political science basic precepts.

The post immediate post-9/11 period and these memos are the more extreme examples of this phenomenon. But it would be a mistake to buy into that singular cause and effect narrative. The intent and even initial processes were pre-existing. Same process, albeit without the extra voltive charge of these examples, rolled down other silos of American life, government and expertise for 8 years: from the environment, NASA and science, civil economic and health safety regulations, etc. Professional isolation and insularity of each silo arising from American regulatory/legal/government complexities prevented an overall societal awareness to dawn for years.

Running on, running blind

CIA again both helped cause and bore the biggest brunt of the radicalist imperative. It was in many respects a no win situation.

White House demands for CIA to ‘act’ in response to this or that burning political imperative over the decades taught the Agency the hard way caution and bureaucratic self preservation. CIA learned the D.C. game of hard knocks – who would end up holding the bag when tempers and emotions cooled? White Houses and staff come and go. That this cynical caution was one of many reasons ushering in the Agency’s twilight and final destruction is also arguably true.

Obama’s decision to provide indemnification for officers and contractors who relied in good faith on OLC legal opinions is the correct if painful one. Without question a bureaucratic CYA element involved. But it’s also true that an officer or contractor is not expected to be a constitutional scholar. One familiar with constitutional law, the personalities at CIA, WH and OLC and customs and norms reading these memos easily sees their shoddy, subpar and brazenly amateurish analysis. And many officers wisely dodged this entire tar patch knowing its moral and career implications.

Government can not function if the government provides its employees the allegedly highest caliber legal sanction and then later subjects them to retroactive punitive measures based on demos’ current mood. Moreover, the statutory provisions for indemnification is a decades long established defense and Community legal framework to protect those providing governmental services from crushing liability. (Everything from space shuttle launches, etc.) It was the right call.

As Anon noted here last nite, not every situation is Nuremberg. It’s a facile historical factoid debased in a Youtube ‘public intellectual’ world. Administration defense and indemnification as set forth is limited to those officers and contractors operating in strict compliance with the appalling OLC green light. We wouldn’t be surprised to see the program exceeded in the field. Video destruction, etc. assumes greater saliency in this light.

Stabilization of liberal democracy remains our primary goal post-Warlord. War crimes do not have statute of limitations. Those who knowingly orchestrated OLC’s debasement and set the overall radicalization process in motion remain subject to prosecution. Obama is right to ignore the Olbermanns of the world and focus his immediate political capital going forward if by doing so the door remains open for creating the necessary factual record for a future reckoning.

Timing is also critical. The rump Movement *needs* a stab in the back betrayal meme and political theater to accelerate reconstitution. What a Pyhrric victory for Olbermann et al.’s heedless, zealous calls for prosecution to assist its over soon return.