Right is right (but maybe the reasons are wrong)

>> Friday, May 01, 2009

I managed to get through much of the week without a torture post, but this is worth pointing out so I hope you'll bear with me.

There appear to be a number of talking heads--both on the right and on what is ostensibly the left--who seem to be under the misapprehension that any investigation into the torture of detainees that occurred over the previous eight years is inherently a partisan investigation. For instance, in the Washington Post, David Broder wrote:

One administration later, a different group of individuals occupying the same offices has -- thankfully -- made the opposite decision. Do they now go back and investigate or indict their predecessors?

That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness -- and injustice.

And in Newsweek, Jon Meacham wrote:

Conservatives tend to believe that this would amount to a criminalization of policy differences, possibly leading to the prosecution of officials who believed they were doing the right (and authorized) thing. Liberals are longing to take the Bush regime to account, and fantasize about Dick Cheney in the dock.

Which, naturally, misses the point--it's not about policy differences (except, of course, that the "policy" in question was an organized conspiracy to violate Federal and international law), and it isn't about putting Mr. Cheney in the dock (though, naturally enough, if probable cause exists to charge him with a felony than that is surely where the former Vice-President belongs). Frankly, "policy" is really immaterial when you get down to it--why somebody broke the law is only a defense where specific intent is an element of the crime (e.g. an act is a crime if done "knowingly" or if it is done "with malice"), and the Convention Against Torture is reasonably clear that motive (or results) are immaterial (i.e. Shepard Smith is right not to give a "rat's ass" for whether torture produces results, since the law doesn't give one either); I would also be quite satisfied if a thorough criminal investigation into the torture programs exonerated Mr. Cheney--the point isn't really about Mr. Cheney (or Mr. Bush) at all, the point is about the responsible parties whomever they might be (while I think it would be difficult to get Mr. Bush off the hook, since he was the Commander-In-Chief at the time and ultimately responsible for all acts of his administration, I actually can imagine that the odious Mr. Cheney might not bear responsibility or be indictable).

That the meme that this about partisanship has taken such a firm hold strikes me as a strong symbol of the decline of American democracy and the ideals of nation of laws, not men (or parties). I don't give a rat's ass (thank you again, Shepard Smith!) whether someone who authorizes and/or engages in torture is a Democrat or a Republican, a soldier or a bureaucrat, ensconced in Washington D.C. or stationed at an obscure military base in Szymany, Poland. I don't care if he or she is a one-armed, gay, Native American, Libertarian, sub-adjutant to the assistant advisor to the lieutenant of an undersecretary at the Department Of Nine-Pins Bowling who believing good faith that waterboarding someone nearly two hundred times was legal, healthy, and yielded excellent advice that not only prevented a thousand terrorist attacks but also pointed out the eventual path to curing AIDS, cancer and racism while incidentally sketching out a quick and trouble-free to make excellent poached eggs and a tasty-but-low-cal hollandaise sauce; a crime against humanity is a crime against humanity.

Which brings us to a bit of clueless stagecraft this week: apparently thinking this whole affair is one of partisanship, House Republicans are calling for a release of CIA documents to establish what Democrats knew, and when they knew it.

Of course I agree, one hundred percent.

Because if Democrats in Congress broke the laws regarding torture, they should be prosecuted. And if Democrats in Congress knew of and/or tolerated a torture program to an extent that's not prosecutable, of course the public should know and if some form of censure is appropriate, then yes, it needs to be undertaken so we can do what has to be done to prise some justice out of this long national travesty, to redeem our shame to whatever small degree. If there hasn't been an appropriate focus on the role Democrats played in this, it's not because of partisanship, but rather because the previous Republican administration had their hands on the tiller. This is no different, actually, from the fact that war crimes prosecutions after World War II focused first on the national leaders bearing responsibility and slowly descended down through to others bearing less responsibility (even when those others took a more direct, hands-on role in atrocities, e.g. camp guards).

This has never been about revenge, or politics, or differences of opinion. This has always been about that favorite word of so many Republican politicians: character. Specifically, the character of our nation and whether we truly are a nation of laws where the President (or the august Senator, or the senior Congressman) are citizens first and foremost. Citizens, unlike royalty, are subject to the same rules as every other commoner, and we are (or used to be) a nation of commoners (and damn proud of it, too, and justifiably).

Here is the single stupidest thing David Broder says in the Post editorial linked to, above:

Suppose the investigators decide that the country does not want to see the former president and vice president in the dock. Then underlings pay the price while big shots go free. But at some point, if he is at all a man of honor, George W. Bush would feel bound to say: That was my policy. I was the president. If you want to indict anyone for it, indict me.

Is that where we want to go? I don't think so.

Actually, Mr. Broder, yes it is. If Mr. Bush is indeed a man of honor, he would step up and take responsibility for breaking the law. He might reasonably, heroically even say, "I did what I thought I had to to make this country safe, and in doing so I broke the most important laws this nation has on the books, and I fully and knowingly accept the consequences for doing so, including imprisonment, because this is a nation of laws and I am as subject to them as any other man who breaks the law for whatever reason, however justified." (Notice, please, that the former President could take responsibility even without admitting he'd done the wrong thing, if he really wanted to be a man of honor.) It won't happen--that's the fantasy, not Mr, Cheney slumped in the dock (or, since this is America, in a chair amidst his team of ace defense attorneys).

And I hold the elected representatives of the then-opposition party to the same standard. Should it be the case that a Representative or Senator condoned or abetted torture, I don't think resignation is unreasonable. Should it be the case that a Representative or Senator somehow authorized or approved torture, then prosecution is not out of the question; let me make sure it's clear that there's no "waffliness" in that prior clause: should probable cause exist to believe an elected or appointed official of any rank or branch of government broke Federal law, they should be prosecuted to the fullest extent possible. (Note here that one might have a reasonable suspicion that member of Congress may have broken the law, but lack probable cause to seek an indictment; this is not unlike the case where Mr. Cheney is concerned, where it's reasonable to suspect Mr. Cheney pushed for torture but there may be insufficient evidence to support probable cause that he was legally responsible, and therefore insufficient grounds to indict. This is why we have criminal investigations, of course, to clear up whether or not there are grounds to prosecute and sufficient evidence if the grounds exist.)

The House Republicans no doubt expect hypocrisy from those who want to see the law obeyed; they assume we're partisan Democrats out for blood and will withdraw once our "cherished" representatives are on the hook. Au contraire. Open the files. Sunlight disinfects. And justice purges.


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