"It is the job of thinking people not to be on the side of the executioners."
— Albert Camus
Washington Post editorial writer Ruth Marcus has joined the side of the executioners and provided a clear example of how that is respectably done in our time and place.
Her
recent column begins:
"Should Bush administration officials be put on trial for crimes such as authorizing torture?"
Assuming that we intend to live in what John Adams called a nation of laws, not men, this ought to be an easy one. Is there probable cause to believe that Bush administration officials (notably including one George W. Bush) authorized torture? Of course. The executive orders are publicly available, and Bush has openly admitted to what most informed observers call authorizing torture. This has been
known for years, but the Senate Armed Services Committee recently admitted the point in a
detailed report that caught the attention of the Washington Post and even Ruth Marcus. That report begins with this summary:
"The abuse of detainees in U.S. custody cannot simply be attributed to the actions of "a few bad apples" acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority."
The report goes on to detail steps taken, beginning with Bush's February 7, 2002, order illegally and laughably, if tragically, declaring that the Geneva Conventions did not apply to certain people. The report also details the president's efforts to "redefine the law" by requesting "legal opinions" that illegal acts would now be legal.
Ruth Marcus's column continues:
"Personally, I'm just relieved to have this crowd heading out of office and its policies -- on torture, on indefinite detention, on warrantless wiretapping, on overweening executive power -- soon to be inoperative."
This is both a blatant and a subtle statement. It's blatantly violative of the idea of a rule of law. Imagine telling a state trooper who pulls you over for speeding that he should just be relieved to watch you drive away (and where he can stick his ticket). It's subtly manipulative in that prior to this administration no president had any "policies on torture". Torture was and is simply illegal. It is illegal in all forms and in all times and places, no matter what. The idea that there can be better and worse "policies on" this is destructive of the very notion of legality. And, yes, that legality includes laws against murder. Numerous victims of torture under Bush have been tortured to death. A CIA employee has been sentenced to
8 years in prison for interrogating a detainee by beating him to death. And, of course, it's also insidious to suggest that what we need is a different variety of policy on indefinite detention or warrantless spying, both actions involving stark violations of law openly admitted to.
Marcus continues:
"But the imminent arrival of the Obama administration has sparked a renewed clamor for criminal investigation and prosecution in some quarters on the left. Vice President Cheney stoked the flames with an ABC interview in which he was typically unrepentant about the waterboarding of Khalid Sheikh Mohammed and particularly explicit about his own involvement."
While many of us have been demanding impeachment and prosecution for years, some voices are now focused on prosecution because they've given up on getting impeachment. Others are newly focused on prosecution because they are raising alarms about the danger of Bush pardoning crimes he authorized. Obama's arrival is marginally relevant to the movement for accountability, which is seeking prosecution at the district, state, civil, foreign, and international levels, as well as federal. But framing this as Obama versus Bush allows Marcus to suggest a partisan spat, a framing that leads ultimately, in many people's minds (including
Alan Dershowitz's), to the conclusion that Bush must not be prosecuted because he is a member of a political party. Cheney "stoked the flames"? Imagine if your neighbor killed his wife and then went on TV and bragged about it. Would the local columnists denounce that as fanning the flames of hysteria, as encouraging the radicals who were demanding prosecution of your neighbor? Of course not. So, what's wrong with our national columnists?
Marcus continues, and brings up the report I mentioned above, but lists it as one more element fanning the flames:
"Meanwhile, the Senate Armed Services Committee released a report concluding that Donald Rumsfeld's decision as defense secretary to authorize 'aggressive interrogation techniques' was 'a direct cause of detainee abuse' at Guantanamo Bay.
"New York Democratic Rep. Jerrold Nadler wrote to Attorney General Michael Mukasey demanding a special prosecutor. (Good luck with that.) The New York Times called the Senate report 'a strong case for bringing criminal charges' against Rumsfeld and Pentagon legal counsel William Haynes, and maybe even Alberto Gonzales and Cheney aide David Addington."
Those wild and crazy flame fanners! "Good luck with that!" Marcus is now publicly mocking a member of Congress for proposing that laws be enforced, and revealing her awareness of what she next goes on to explicitly state: Obama wants no part of it.
"Not that President-elect Obama seems particularly eager to take that plunge.
"'If crimes have been committed, they should be investigated,' Obama said in April. Still, he said, 'I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve.'"
As it happens, the
top (most voted for) question people are asking Obama right now on his website is whether he will appoint a special prosecutor to independently investigate the gravest crimes of the Bush Administration, including torture and warrantless wiretapping. Voting is still open for those who want to register their opinions.
Marcus makes clear which side she comes down on:
"I touched briefly on this subject the other day, writing that 'ensuring that these mistakes are not repeated . . . may be more important than punishing those who acted wrongly in pursuit of what they thought was right.'
"How, some readers asked, could future law-breaking be prevented if past misdeeds go unpunished?"
Marcus provides six nonsensical answers. Are you ready?
"First, criminal prosecution isn't the only or necessarily the most effective mechanism for deterrence. To the extent that they weigh the potential penalties for their actions, government officials worry as much about dealing with career-ruining internal investigations or being hauled before congressional committees. Criminal prosecution and conviction requires such a high level of proof of conscious wrongdoing that the likelihood of those other punishments is much greater."
The two main problems with this are as follows. First, "internal" investigations of the president and his top officials are not done by the executive branch, and attempts at oversight by Congress have been blocked by Congress's refusal to impeach combined with the president's dictatorial decision to ignore subpoenas. Second, any such steps are now in the past. It's too late for "internal investigations" to ruin the careers of Bush's torture lawyers who are now off lecturing at top universities and running our courts.
"Second, the looming threat of criminal sanctions did not do much to deter the actions of Bush administration officials. 'The Terror Presidency,' former Justice Department official Jack Goldsmith's account of the legal battles within the administration over torture and wiretapping, is replete with accounts of how officials proceeded despite their omnipresent concerns about legal jeopardy.
'In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls,' Goldsmith writes."
Bear this in mind when Marcus writes below in this very same column that she does not think there has been any "conscious law breaking." But let's also stop and think here for a minute. If none of Marcus's other preferred methods ("internal investigations," "congressional committees") deterred these criminals, and the possibility of prosecution didn't deter them, and Marcus hasn't dreamed up any NEW methods of deterring future criminals, are we more likely to deter future crimes by prosecuting these or by letting them go unpunished? If the president before Bush had gone to prison for similar crimes, would the threat of prosecution have served as a greater or lesser deterrent than it actually did? The answer seems obvious to mere mortals not privileged to editorialize in the Washington Post.
"Third, punishment is not the only way to prevent wrongdoing. If someone is caught breaking into your house, by all means, press charges. But you might also want to consider installing an alarm system or buying stronger locks. Responsible congressional oversight, an essential tool for checking executive branch excesses, was lacking for much of the Bush administration.
We installed impeachment in our Constitution, Congress refused to use it, and the Washington Post ignored and mocked a massive public demand for it. We installed the power of contempt and the right to imprison recalcitrant witnesses in our legislature, Congress refused to use it, the Washington Post
admitted it existed but never editorialized for it, and the Bush-Cheney gang ignored subpoenas. These failures hardly justify intentionally failing in an additional arena.
"Fourth, there is a cost to pursuing criminal charges. As appalling as waterboarding is, for example, it was pursued with the analysis and approval of lawyers who concluded, however wrongly, that it did not rise to the level of torture. If government officials cannot safely rely on legal advice, they will err on the side of excessive timidity."
So, there you have it. If you hire lawyers who will obey orders to declare illegal activities legal, and you then claim to have acted on the advice of your lawyers, despite the very well-known fact that torture is always illegal, then what you have done is the equivalent of bad home decoration, which is the sort of offense for which the Washington Post most often reserves the term "appalling." (And we reduce a wide range of brutal torture techniques to the water torture and rename it waterboarding.) But to call something a crime after a lawyer has backed it? Well, that could lead to such catastrophes as failing to torture people. Since when is "timidity" about law breaking a bad thing? Can these columnists hear themselves?
Fifth, focusing governmental energy on uncovering and punishing the actions of the past will inevitably drain energy and political capital from the new administration. It would be a better use of the administration's time to figure out how to close Guantanamo and deal with the remaining prisoners.
So we've gone from framing this as an Obama problem to assuming that everyone places increasing Obama's "political capital" higher in their list of priorities than deterring future presidents from committing murder. And we've rejected punishing "actions of the past," oblivious apparently to the fact that all law enforcement is punishment of actions of the past, that we actually do not ever punish actions of the future. And then there is the more deeply hidden assumption that prosecuting the most widely despised administration of the past would not make Obama extremely popular around this country and around the world in the future. If that assumption were convincing, I'd still demand justice, but I don't think we should allow it to simply be assumed.
Here's Marcus's sixth excuse:
"I am not arguing against any criminal prosecution of any Bush administration official no matter what the facts -- I'm just saying that the bar is awfully high. Lying to investigators and covering up questionable activities should be prosecuted because such conduct frustrates the capacity of other government checks to function."
The bar for prosecution is higher for some people than for others? And it is higher for those who can do the most damage? And it remains higher even after they are out of office and returned to the status of mere plutocrats -- oops, I mean, citizens? This is to invert the common sentiment of the founders of this nation who believed that holding the president to the rule of law was more important because of his power, not less important. This stunning assertion by Marcus almost knocks one too dizzy to notice what she slips in during the same breath. She favors prosecution for lying to investigators and covering up questionable activities. The questionable activities themselves should be left unpunished (except by investigation), but the coverup should be prosecuted. Well, what are we waiting for? This requires a new headline and lead paragraph for this column. Doesn't the Post have editors? Doesn't the FBI say that Cheney has lied about
torture and
the Plame leak. Wasn't the whole Plame leak part of a massive coverup for lying us into an illegal war with a major assist from
the Washington Post? Is there any doubt that the Bush-Cheney gang would lie and obstruct any prosecutor's investigation of any of their crimes? But there's Ruth Marcus's Catch 22: it's hard to prosecute the lies to investigators if you don't allow any investigations.
Marcus has one more point to make:
"And prosecution would be justified if there is evidence, as Obama put it, of 'genuine crimes as opposed to really bad policies . . . that there were high officials who knowingly, consciously broke existing laws.' Really bad policies? No question about that. Conscious law-breaking? I'm doubtful -- and skeptical, too, that the symbolic benefit of any such prosecution would outweigh the inevitable costs.
So now there is no deterrent value at all, but only symbolism. (Remember that when the state trooper pulls you over!) And the
evidence is all gone too. Never mind the bodies. Never mind the torture victims, the photographs, the videos, the confessions. Never mind that Bush declared the illegal legal, tortured, signed into law new bills redundantly recriminalizing torture after lobbying against those measures, added signing statements declaring the right to torture in violation of the new laws as well, and went right on torturing. The important thing to remember is that he was not deterred by any threat of punishment. And therefore we should not punish him. We should refrain, if only to send the proper message to future presidents, and the proper message to potential terrorists.
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