Michael Isikoff connects the dots

Why did Moussaoui escape the death penalty? Because he was a very marginal figure.
Why did we try him anyway? Because we needed someone to take the fall in public for the greatest mass murder in American history.
Why didn’t we put the real bad guys on trial? Because they were tortured, on direct orders from the Oval Office and the VP’s office.
So says Michael Isikoff.

I didn’t follow the Moussaoui trial at all closely, and hadn’t given much thought to why the jury chose life imprisonment over the death penalty. It didn’t seem to me a very important question.

But yesterday on Hardball Michael Isikoff explained clearly why all of us should care. Here’s the story Isikoff told Chris Matthews. (Hat tip: Crooks and Liars. The (partial) transcript isn’t enough; you have to watch the video.)

Isikoff’s analysis:

1. When Moussaoui was captured, there was some thought that he was centrally involved in the 9-11 plot.

2. Later it was discovered that he wasn’t.

3. It was decided to put him on trial anyway, because we needed someone to try.

4. The central plotters (other than bin Laden) are all in U.S. custody, but they haven’t been tried and won’t be tried.

5. Top people on the President’s staff (Gonzales) and the Vice President’s staff (Addington) decided to authorize waterboarding and related methods of “aggressive interrogation” as applied to the top plotters.

6. Having tortured them, the Administration can’t now put them on trial without having their defense lawyers put the facts about their maltreatment on the official record.

(Isikoff didn’t add that, if the plotters were tried in civilian courts rather than by military tribunals, it would be almost impossible to convict them, since not only would evidence obtained under duress be excluded, but so would anything learned as a result. So the government would have to prove, with respect to each piece of evidence, that it hadn’t been obtained, directly or indirectly, as a result of torture.)

So, in effect, the major plotters aren’t being tried in order to cover up decisions made at the very top of the Bush Administration. Instead, the government tried to send a bit player to the death chamber, and the jury refused to go along.

Bush critics generally, and bloggers particularly, are often criticized for complaining and snarking rather than offering constructive solutions. So here’s my idea:

Since both blowing up buildings full of civilians and torturing prisoners are war crimes, perhaps President Warner or President Clark could ship the 9-11 plotters to the Hague for trial by the International Criminal Court, along with Bush, Cheney, Rumsfeld, Ashcroft, Gonzales, and Yoo. The fact that we haven’t ratified the treaty establishing the court needn’t be a problem; instead of an extradition hearing, we could just use irregular rendition.

Footnote I know it’s virtually an article of faith in Blue Blogistan that Michael Isikoff is A Bad Person. But, as this story indicates, he’s a hard-working, fearless and ferociously intelligent reporter. He certainly didn’t cover himself with glory leading the “pussy posse” back in the Clinton days. But isn’t it about time we got over that?

Update Siva Vaidhyanathan has more, including some legal analysis of the status of prisoner maltreatment (even short of “torture” under the UCMJ.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

15 thoughts on “Michael Isikoff connects the dots”

  1. He certainly didn't cover himself with glory leading the "pussy posse" back in the Clinton days. But isn't it about time we got over that?
    It calls into question his judgement, apart from what it might or might not say about his leanings (which don't so much matter to me.)
    I haven't seen him acknowledge what he did as being wrong, nor propose a way to remedy it so it doesn't happen again.
    Therefore, I can't trust anything he says,. he hasn't even begun, at this late date, to face and come to grips with the insanity he was one of the leaders of.

  2. yea, I really have to wonder why the footnote. He can come up with some good reporting and still be a world class dick. And wrt "isn't about time we got over that", I'll get over it when the damage done has worked itself out through the system. It doesn't mean that I won't listen to him, but for "Bob's" sake, some instances of good reporting also doesn't mean that I have to completely ignore the past and the fact that he still hasn't come clean about that.

  3. Almost two years ago Michael Isikoff also reported the very important fact that one of the key pieces of alleged evidence of Iraqi assistance to Al Qaeda was a false confession obtained via "aggressive interrogation techniques"
    For years Isikoff has been denouncing torture and explaining its huge practical costs aside from the depraved imorality of it. In my book that makes up for leading the pussy posse years ago.

  4. But isn't it about time we got over that?
    Why, you think he won't do this to the next Democratic president?

  5. What I meant by "get over it" is "be willing to listen to what Isikoff says." This story, which is absolutely devastating to the Administration's pretense to leadership against terrorism, and which has run on Crooks and Liars, doesn't seem to be getting much traction.
    Of course the Red bloggers want to ignore it. But it would be attracting much more attention on the left side of the aisle if it had a different by-line. I think that reflects an error in judgment.

  6. For crimes against individuals only the aggrived party can wave away the guilt. Did Isakoff apologies to Clinton?

  7. "…ship the 9-11 plotters to the Hague for trial by the International Criminal Court, along with Bush, Cheney, Rumsfeld, Ashcroft, Gonzales, and Yoo."
    Works for me. Of course I'd hoped they'd just back a paddy wagon up to the White House and ship this crew to the Hague directly following the Kerry inaugural in 2005. Didn't work out, for some reason.

  8. I think a lot of otherwise intelligent people became very confused during the Lewinsky affair, chiefly because they did not yet understand at that point what a REALLY dishonest administration looked like. The past 5 years have put such issues in a markedly different light. Aggressive reporters who covered Monicagate aggressively were idiots of context. Isikoff should be ashamed of his coverage in those years, but that's no reason to discount his coverage now, any more than Hitchens's current idiocy invalidates his better older stuff.

  9. I hope Warner or Clark, as the case may be, takes your advice and runs on a platform of trying the current administration for war crimes.
    (I'm not sure why ratifying the treaty would allow the US to send the mentioned individuals to the Hague for trial. Could the US and a single other country establish "international" crimes by treaty and use a newly created entity to prosecute US citizens without the protections afforded under US law? What's different about this?)
    Then "when" in "When Moussaoui was captured" was pre-9/11, wasn't it? And the reason he was tried is that he was, admittedly, guilty of a conspiracy against the US?
    I would think that the supposed fact that the "central plotters (other than bin Laden) are all in U.S. custody" isn't one you'd like to trumpet. It suggests rather more success in the WOT than you'd allow, doesn't it?
    The only question becomes, should the focus be on retribution for the attack of 9/11 (which might suggest that criminal trials or military trials are appropriate), or should the focus be on attacking and disrupting the ongoing al qaeda conspiracy. You'd have the focus be backward looking, while the Bush administration has chosen otherwise. I think, given the goals of the war, that the Bush administration has, if this is right, chosen wisely, but that isn't to say that there are competing interests the other way.

  10. The Meaning of Moussaoui

    The life sentence given to Moussaoui has deeper implications than a whimsical decision by a jury. Mark Kleiman explains….

  11. The Meaning of Moussaoui

    The life sentence given to Moussaoui has deeper implications than a whimsical decision by a jury. Mark Kleiman explains….

  12. No, I can't get over "it"…whatever it, is. But that does not mean I don't listen and read Mike…just that he so partisan like the right that you have to spend sooooooo much time ignoring the "nasty hits" it takes twice as long to pick out any factual bits.

  13. Or…
    Don't run on it at all (you'd lose), but on day 1, January '09, order the immediate arrest of all top former administration officials, ship them to Gitmo, and register them only as "prisoners 211, 212, 213, whatever". Then force Congress to take back, piecemeal, the authority it as so cravenly given away.
    Don't like the fact that the President runs secret prisons offshore, sans oversight? Force Congress to demand oversight to confirm the whereabouts of said officials. Don't like the fact that those prisoners have no legal appeal? Force Congress to rectify that, so that the latest prisoners get their day in court. When it's their turn, that is.
    By this time, the many misdeeds of this Administration will have been fully exposed, and the new Pres can ship the lot of them off to the Hague. Then shut all the prisons down.
    It's necessary for both the American people and the world to understand the total rejection of Bush's policies by this country's new government. Think big.

  14. Mark's suggestion reflects a misunderstanding of the International Criminal Court's function. It exists to try war crimes and crimes against humanity, when the country with jurisdiction cannot or will not try the perpetrators.
    This country will only return to the rule of law when Cheney, Rumsfeld, Bush, and others are prosecuted. It would also be a step forward for the Senate to ratify the U.S. signing of the treaty establishing the International Criminal Court (Bush had us 'un-sign', but that's a meaningless process, as far as I know; in any case, a future president should reaffirm Clinton's signature of the ICC treaty and push for ratification).

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