The Prosecute Torture Petitions

In the official online forum of the Obama transition team, tens of thousands of Americans petitioned for a special prosecutor to investigate the Bush administration's support for torture. Was this democracy in action? Or would it only be if the President were to follow through on it? We examine this here.

The Launch

Six quotes set the stage:

"It's as if, in 2004, the Internet was allowed into the conference room of politics; in 2006, it was allowed to sit at the table; but in 2008, it's sitting at the head of the table, holding the agenda." -- Andrew Raseij, TechPresident co-founder to the CBS Early Show, 11/7/2008.

"Steve Hildebrand, Obama’s deputy campaign manager and an architect of the grass-roots network, has been warning the president-elect’s team that it risks turning off activists who were inspired by Obama but who never considered themselves a part of the Democratic Party. These people, Hildebrand said, could be inspired to fight for Obama’s proposals to overhaul healthcare or combat global warming, but would reject appeals that sounded like old-fashioned partisan politics." -- "Obama’s grass-roots army may get drafted," Los Angeles Times, 11/14/2008.

"Today we're trying out a new feature on our website that will allow us get instant feedback from you about our top priorities. We also hope it will allow you to form communities around these issues -- with the best ideas and most interesting discussions floating to the top." announcement from Change.gov transition website, 11/25/2008

"Already, there are more than 500 comments on the site... Imagine what happens if those numbers--on not just any 'centralized site'; but the one that symbolically and perhaps literally has the attention of the President-elect--start climbing into the five- and six-digits. Before our eyes, we are witnessing the beginning of a rebooting of the American political system." blog post from Micah Sifry, TechPresident co-founder, 11/26/2008.

"Today, we're rolling out a new feature that lets you ask the Transition team any questions you have about the issues that are important to you. You can also browse through questions other folks have and check off the ones you think are the most interesting." announcement for "Open for Questions" from Change.gov, 12/10/2008.

"It is striking that Obama's aides, who helped win the election by harnessing new media, believed they could just spin away from their online interlocutors. Instead, the move backfired immediately." Ari Melber, Noted in The Nation, on 1/15/2009 (for the 2/2/2009 issue)

The Question

The first round of "Open for Questions" attracted 20,000 people, who cast over 1,000,000 votes on 10,000 questions. Questions about disgraced Illinois were conveniently marked inappropriate by site users; a question about marijuana legalization was inconventiently given the most votes. The team gave brief answers to five of the top questions. In the second round at the end of December, 103,512 people cast 4,713,083 on 76,031 questions asked. The leading question was passed over, (as Melber noted above), so George Stephanopoulos of ABC News pressed it directly to President-Elect on his Sunday morning show This Week, on January 11th:

"Will you appoint a Special Prosecutor -- ideally Patrick Fitzgerald -- to independently investigate the gravest crimes of the Bush Administration, including torture and warrantless wiretapping?"

I thought of tough questions like these when I conceived of a "Question Scoreboard" five years ago (I never actually coded it; no matter, Change.gov decided to use software from a small grassroots development shop by the name of Google). The difference was, I had been thinking their use for interrogating a stubborn chief executive; I hadn't counted on it being used for cross-examining one's own leader. Some questions -- the kinds one sees in legal dramas -- are able to trap the respondent. Obama hadn't been flustered since the Democratic primaries. His smooth streak continued. He said he didn't , but added, "I also have a belief that we need to look forward as opposed to looking backwards."

Seventy-six thousand questions... why that one? and how that one?

The Buildup 

The question was phrased, and initially championed by Bob Fertik, a New York democratic activist. Fertik is has been in online politics long enough that he secured the domain democrats.com during the last Democratic administration, at the time of the 2000 convention (the Democratic Party uses democrats.org). While Democrats.com had yielded audience to the likes of DailyKos, MyDD, FireDogLake, and other "Netroots" and journalist bloggers, the site retains emphasizes the non-blog portions: forums, petition drives, fundraising campaigns. Fertik even raised $113K for Obama in escrow, to be released once he yields his position on warrantless wiretapping (it's virtually raised -- you decide). Fertik also should get points for sheer tenacity -- he dedicated a page to the tenuous "Bush-Nazi" links on his site during the 2004 campaign.

Bush had larger problem then that. The 2008 election featured both candidates disparaging the outgoing administration on many issues-- particularly on the post-9/11 torture policy. With Obama's victory, and the Democratic landslides, it became clear that his supporters would push for the maximum justice. The cover of the December 2008 issue of Harper's captured the mood: a Steve Brodner illustration of President Bush, Vice President Cheney, and Secretary Rumsfeld wearing orange jumpsuits and grimacing behind bars. The lead article, from contributing editor and New York attorney Scott Horton, was "Justice After Bush: Prosecuting an outlaw administration." In 7,000 words, Horton laid out the case for justice, calling for an investigative commission, which would be in position recommend the appointment of a special prosecutor. He also explained why an investigation is necessary:

Pursuing the Bush Administration for crimes long known to the public may amount to a kind of hypocrisy, but it is a necessary hypocrisy. The alternative, simply doing nothing, not only ratifies torture; it ratifies the failure of the people to control the actions of their government.

The article started reaching readers on Monday, November 17th. Lara Jakes Jordan, the AP's Justice Department correspondent, may have caught it. She had started covering the incoming legal team the previous week, breaking the story on the plan to transfer of Gauntanamo prisoners to US Courts. On this issue, she found that the team was less committed to investigating the Bush administration, reporting: "Two Obama advisers said there's little — if any — chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage."

These thirty words echoed a little further than the seven thousand from Horton. Jordan's AP story ran in TalkingPointsMemo; Horton's article was missed by the generally alert Josh Marsall. (Harper's has the quaint habit of not giving away all of its articles gratis over the web, though the article is available for anyone to read now.)

Hilary Bok, a professor of Bioethics and Moral and Political Theory at Johns Hopkins (and populary known as "hilzoy" in the blogosphere), articulated that it would be a "big mistake" if the opportunity for prosecution was passed. But, she added, "It would be bad for him to be seen as carrying out a partisan witch hunt; it would also be bad for the law, and for these prosecutions, if they were seen as a partisan witch hunt." Thus she suggested an independent prosecutor ("Think Archibald Cox.") Andrew Sullivan agreed, though also revived the notion of a "Truth and Reconciliaion Commission," which, as a similar-named body did in South Africa after apartheid, would give immunity to anyone who testified.

Incidentally Scott Horton took note in his Harper's blog as well: restating, what he wrote in his article -- without even referencing it.

The Resolution

In some form or fashion, this word gets to Jerrold Nadler, the Manhattan Congressman. Nadler's liberal constituents had been hounding him for a year-and-a-half to assist Rep. John Conyers in impeachment proceedings against the President and Vice President. Nadler had set a high standard during the Clinton impeachment a decade earlier ("we must not do so without an overwhelming consensus of the American people"), and was likely loathe to undermine that with a new impeachment process. But now he had reason to act.

Anticipating some Presidential pardons before the Thanksgiving holiday, Nadler introduced a resolution in the House. The first three sense parts warned against any preemptive pardons of administration officials; the last two called for a commission and an independent counsel in the coming administration.

Fertik noted the resolution right away, and created a congressional emailer form for it. On December 10th Fertik got the idea to have U.S. Attorney Patrick Fitzgerald do a second tour as a special prosecutor. He then posted his question to the first round of Change.gov "Open for Questions"; it finished #6. It turned out to be an opportune week. On December 12, the Senate Armed Services Committee released their report on detainee abuse; on the 15th, Vice President Cheney defended his personally being involved in the process of approving "enhanced" interrogation. These two events opens the floodgates. The Times called for a prosecutor as do many others.

When the Change.gov team has a second round of "Open for Questions" on December 29th, Fertik is ready. This time he gets an assist from from Ari Melber at The Nation, from the DailyKos, and from the pseudonymous blogger "Digby." The question takes the lead; Team Obama ducks it answers it with a past answer from Biden; George Stephanopoulos asks it directly; Obama atfully dodges it.

David Ignatius of the Washington Post saw the interview and remarked in his column how Obama's famed pragmatism seems to rest at odds with his idealist supporters: "this is the kind of realism that will disappoint liberal score-settlers." Glenn Greenwald, Salon's press tormenter, tore into Ignatius for assuming that justice is something that only "liberal score-settlers" want. "Establishment Washington unifies against prosecutions," he thundered. But he overshot the mark. It's his new President who ultimately makes the decision.

The Professionals

Melber, Fertik, Greenwald, and other Netroots boosters tend to is where an "army of Davids" challenges the established order -- the Washington Beltway Journalist-Political-Lobbyist Establishment. A meek press either lets politicians get away with murder, or is an invitation for citizen-activist-bloggers to kick into high-gear. But it ignores the battle of ideas, and also the rich tapestry of players in a democracy: scholars, research thinktanks, activist groups. That the intellectual elite get to take the desks of the political elite is one of the touchstones of the modern Democratic party.

We can start with the article from Scott Horton, Columbia Law School lecturer. The New York Times, in its editorial stated that "at the least, Mr. Obama should, as the organization Human Rights First suggested, order his attorney general to review more than two dozen prisoner-abuse cases that reportedly were referred to the Justice Department by the Pentagon and the C.I.A. — and declined by Mr. Bush’s lawyers." Human Rights First has authored this blueprint to describe this process.

Another important scholar is Dawn Johnsen, a law professor at Indiana University. In Slate, in April 2008, she responded to Dahlia Lithwick's article on the now infamous OLC "torture memos" with this passionate agreement:

Where is the outrage, the public outcry?!  The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.

On January 5th, Dawn Johnsen was selected to head DoJ's Office of Legal Counsel-- the job which used to be held by John Yoo, author of that infamous memo. This is the office which determines what is legal for the Justice Department to do. Was her pick driven by the Fertik petition? Not necessarily. Johnsen had joined the transition team on November 19th; Glenn Greenwald revealed that her name had been floated for OLC in mid-December. In addition, one of Johnsen's deputies will be Georgetown University's Marty Lederman, who has authored 240 blog posts over the last four years on the anti-torture memos.

President Obama can afford to play loose with tens of thousands of petitioners for a while. But it is less likely that he will ignore the people he's put in charge at the Justice Department. It's also hard to fathom that people who have been so passionate about restoring American justice over the 4 years since Abu Ghraib will give it a complete rest now that they're in power.

Obviously, petition democracy is healthy, and there is no reason to suggest that it failed, or otherwise was merely for the show. We all should hope that this raised general awareness, and that a good number of the hundred thousand people who participated took time to learn more about why delivering justice is more important than mere revenge.

The Encore

The tale above is reminiscent of the idea "organizing without organizations," the subtitle of Clay Shirky's recent book Here Comes Everybody. Shirky's book explains what is becoming quite clear-- that having a treasurer, a governing structure, a history, a building aren't pre-requisites anymore for social activism. Still, some minimum amount of online organizing is necessary. A mere online petition just doesn't cut it.

First you need a name.

A number of folks who feel that the United States went to war against Iraq under false pretenses had coalesced on AfterDowningStreet. This name came from the Downing Street Memos which revealed how the British Prime Minister's office saw the United States as dead-set on war with Iraq. I've felt that this has never quite succeeded because the name was still somewhat obscure and were probably too, well, British-sounding. One could design a contest for a name, in such a way that the associated domain could be registered. For this project, JailBush might seem to vindictive. Some other thoughts: JudgeBush or ReversionOfJustice or Article7-1 (This is the clause of the UN Convention Against Torture which states: "The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.")

Take the name, create a website, declare a tag to organize content. On the site, link to all the primary documents. Provide a dashboard of what's being done. Spotlight some of the lesser-known inviduals under the Cabinet-level: Yoo, Addington, and Haynes, are virtually unknown outside of constitutional circles.

Above all, make the story about the victims, the detainees abused.

Grant that most of this is what the Center for Constitutional Rights is doing. But since CCR doesn't engage social media (and its portfolio goes beyond torture), social media doesn't engage back.

In the end, there is a curious little parallel here with torture. The Bush administration needed extra-legal authority, so they asked their lawyers to provide new interpretations of laws. As President Bush told Larry King last week: "I got legal opinions that said whatever we're going to do is legal." The new Obama administration will need a different sort of extra-legal authority to do this investigation. Not because it's illegal, but simply administration priorities might point elsewhere. This is, of course, where a community-driven website can help.