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Cross-posted at Blue Mass. Group.

I recently finished Jane Mayer's The Dark Side, which recounts the ugly, ongoing history of the Bush administration's policies of torture. As to whether torture happened, there simply can be no doubt; the volume and horror of the practices approved by the government are just stunning. We have tortured the probably-guilty, the marginally-involved, and the utterly innocent. We have used waterboarding, "stress positions" (crucifixion is death by "stress position", by the way), temperature extremes, nakedness, noise, sleep deprivation .... and on and on, often in conjunction and sequence with each other. We have deprived people of their rights, health, and their sanity. We know all this.

It occurs to one that the Constitution itself only continues to exist due to the consent of the governed. That means everyone -- the Executive Branch, the lawmakers, the courts ... and the voters themselves. If one institution after another simply decides to cast it aside, either by action or inaction, malice or neglect ... poof! It disappears. It ceases to have any meaning. It has the power of a quaint proverb stitched onto a sampler, hung on the walls, if one after the other of our institutions simply decides not to follow it anymore.

That's not to say there hasn't been resistance to the overarching, malignant machinations of David Addington, Dick Cheney, John Yoo, and the other bad actors. People like Jack Goldsmith and others certainly displayed personal and professional courage in resisting the wild legal fantasies and fear-drenched megalomania of Addington and Yoo; and the Supreme Court has consistently ruled against the Bush Administration on its handling of prisoners. But to what end, exactly?

There simply must be prosecutions. It's not enough to imagine that we can restore the Constitution by popular vote, by just electing people of better morals, of more restraint, of greater reverence for the law and human history. Because "good people" come and go. You don't always get the people you need in positions of power. The law itself must be affirmed, and those who intentionally and flagrantly abused its practice -- for the purpose of abusing humans -- must be punished.

If there is no prosecution for the shredding of the Constitution, then we really have to wonder exactly what of our great inheritance is left to us. Without prosecution, we are all subject to the whims of those in power, and whether they feel like restraining themselves or not. We are back in the age of an unlimited monarchy -- forget about 1787, we're going back to before the Magna Carta.

There is little doubt that prosecutions would be made to seem politicized. Perhaps Congress can appoint a special prosecutor. Whatever means necessary to keep the proceedings fair and impartial ought to be undertaken. Unfortunately, the question at hand is whether the law of the land itself is legitimate. Even if independent, a prosecutor still needs to refer to a common standard of justice, to essential shared values. But if law itself is in question, what remains of that?

At the close of the Constitutional Convention in 1787, someone asked Ben Franklin whether we had a monarchy or a republic. "A republic -- if you can keep it," replied Franklin. The lesson is that the Constitution is not magic, not an all-seeing eye, not a god that imperceptibly guides the machine of state. It depends on people of good faith and forbearance to keep it. Are there enough such people? Or have those qualities become another partisan bona fide, a cliche, a shibboleth easily defeated in a bad election year?

As voters, all that we control is who gets elected. That's where the restoration needs to start. And then our elected officials must re-establish trust, professionalism and honor to the powerful but mostly-invisible areas of the executive branch. So far our Congress has done little to do so. Now, or even next year under a new administration, is not too late to address past violations. There simply must be accountability. If nothing is punished, then all is permitted.

We're on very thin ice.

Originally posted to Charley on the MTA on Sat Oct 04, 2008 at 08:03 PM PDT.

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Comment Preferences

  •  Oh, so excellent (1+ / 0-)
    Recommended by:
    Luthien Tinuviel

    Rec'd, and will tip when I find the jar.

    It has the power of a quaint proverb stitched onto a sampler, hung on the walls, ...

    Maybe that's what George W. BUllSHit meant when he called it a "goddam piece of paper!"

    Oh, full names in tags, please.

    "People should not be afraid of their government; governments should be afraid of their people." --V

    by MikeTheLiberal on Sat Oct 04, 2008 at 08:07:33 PM PDT

  •  We need another special prosecutor. (1+ / 0-)
    Recommended by:
    Ronald Singleterry

    Count me as someone who believes Nora Dannehy will do her job.

    Now, we need another special prosecutor to investigate FISA.

  •  just thinking about this tonight... (0+ / 0-)

    moments ago actually. I for one think we are far too consenting in NOT demanding investigation and prosecution of the violations.

    I don't know how to make this happen. Unfortunately, I think we are societally scraping at level one on the Maslow scale right now.

  •  Moral Spine Needed (0+ / 0-)

    No system of government is better than the people who comprise it.  Maybe the best thing Barack Obama can do for the country, at this point, is provide a far better ethical tone to the running of our civic institutions -- from top to bottom.

    If that is so, then we must tend our own gardens then.

    by Otherday on Sat Oct 04, 2008 at 08:39:21 PM PDT

  •  No. The Constitution Has Specific Defects (0+ / 0-)

    in some key areas. Setting aside the question of whether the whole system as well tuned as possible is really what's best for the country, it can certainly be improved to prevent much of the extremes we've been subjected to recently, and at least some of what we've been subjected to for generations.

    "Checks and balances." The Constitution lays out a collection of balances among numerous powers. And these are enforced by an assortment of checks.

    If one institution after another simply decides to cast it aside, either by action or inaction, malice or neglect ... poof! It disappears.

    No, not where the balances are backed up with functional checks. For example, the Executive has no power to fund programs it may illegally create. That's not something they are capable of ignoring. If the money isn't provided by the legislature it's just not there.

    Where this breaks down is where the Framers failed to be thorough in their design, and we who came after either never got into a situation where it mattered, or if situations came along, we never grasped that there was a problem with the system.

    The key to the possible present destruction of the Republic is the Criminal Presidency.

    The Framers recognized the enormous threat from an imperial presidency, which they recognized could be imposed through warmongering. So to prevent it, they broke war powers across 2 branches. The President can  command armies but can neither raise nor fund them. And they can't be funded long term, only congress can fund it, and only for 2 years at a time.

    But the Framers never extrapolated their own wisdom about an imperial presidency to the possibility of a criminal one.

    So we have all enforcement power for laws and court decisions in the Executive branch. Which means it has the ability to decline to enforce against itself, and there is almost no CHECK on it.

    Most of the excesses of the Bush admin have involved criminal violations somewhere in the Executive branch from the oval office on down: failure to honor subpoenas, violation of staffing laws, violations of other lawsa and treaties, election laws, etc. etc. But since the branch has the ability to decline to enforce against itself, there is no consequence.

    Since the President has pardon power, he can pardon all the lawbreakers before leaving office. So there can be no future prosecution.

    And if an intransigent sufficient minority is present in the Senate, which is virtually always the case, there is no chance for removal upon conviction in impeachment.

    And so the entire Executive branch is designed and built, even if not intended, to be completely outside the law.

    But that's fixable. There must be several ways by amendment to create new enforcement power outside the Executive.

    The system has major structural holes in the checks and balances, and in the environment it creates for public discourse which is probably the single greatest threat facing humanity.

    The framers knew their system would need updating but that cannot be done until we drop our fundamentalist worship of their literal received words, and start thinking about the kind of society they were envisioning versus the abuses we've had lately, and how the framework of this country might need to be updated to suit.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sat Oct 04, 2008 at 08:41:51 PM PDT

    •  There is a check (3+ / 0-)
      Recommended by:
      Xapulin, Spoc42, lotlizard

      Pelosi swept it off the table.  

      Steny Hoyer = a slam dunk argument for term limits

      by jlynne on Mon Oct 06, 2008 at 12:18:41 AM PDT

      [ Parent ]

      •  Because it could not have passed. (0+ / 0-)

        Pelosi made a reasoned, pragmatic decision.  Even if the House had passed articles of impeachment, she recognized that the Senate would not convict.  And lacking a conviction - indeed knowing ahead of time that no conviction was possible - impeachment looks like a partisan witch hunt.  That would have undermined Democrats' chances in 2008.  Worse, had Bush been impeached in the House and acquitted in the Senate, that would be seen as legal validation of his decisions.

        Sometimes "just trying" isn't enough.  You either have to try and succeed - or at least have some reasonable possibility of success - or not try at all, because the costs of trying and failing are too great.  This was one of those times.

    •  Another late recommend (0+ / 0-)

      America, billions in debt, prices have doubled, taxes break our backs, and we are still fighting. It's tragic and it's time for a change. D.D.E (cut2fit)

      by zooecium on Mon Oct 06, 2008 at 08:38:14 AM PDT

      [ Parent ]

  •  Sounds like a lawyer of constitutional law (0+ / 0-)

    Yes, I agree with the substance of the diary.  Can this prosecution be done smoothly, efficiently, without seeming partisan and without destroying the focus and support for legislative reform that is essential to the health of the nation??

    I'd love to have your answer.  I am not a lawyer (I am educated to be an historian) but my husband, when he was alive, was a lawyer.  So the language sounded like legal language, and the content sounded like someone who really cares about the Constitution, and someone who is giving an opinion that makes the reader think about how to preserve a republic lest they fall into a monarchy.

    •  Two problems: (0+ / 0-)

      First, Bush may decide to proactively pardon those involved.  He indicated as much in his signing statement on the Military Commissions Act, where he said that people violating that act under executive authority could not be convicted of a crime.

      Second, though, is the sticker problem:  Whom do you prosecute, and what are the implications of an acquittal?  That is, if you charge the people who carried out the torture, or Rumsfeld, Cheney, etc. who approved it, or Addington, Yoo, etc. who said it would be legally okay (and thus were at least criminally negligent as lawyers) ...

      ... and if they're all acquitted at trial ...

      ... where are you then?

      You have a court, on the record, saying "That was okay; those people didn't commit a crime."  That's perhaps the worst possible outcome, because it would be seen as

      legally validating those decisions



      This is one where a special prosecutor would have to tread very lightly, and be almost certain he has an airtight case before he even let people know he was investigating ... and if he wasn't certain of an airtight case ... he never tells anyone that he investigated it at all.

  •  Couldn't agree more. n/t (0+ / 0-)

    "Vote Your Hopes Not Your Fears."

    by YellerDog on Sat Oct 04, 2008 at 10:56:47 PM PDT

  •  bush rumsfeld and cheyne (0+ / 0-)

    i think its so dangerous from so many angles that cheyne and people like him (Rumsfeld) will get away with no consequence for raping the values of this country

  •  Good essay (1+ / 0-)
    Recommended by:

    We haven't kept the republic.

    When one group is hell-bent upon upending the social contract, partisanship against that group is a virtue.

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Sun Oct 05, 2008 at 09:43:47 PM PDT

  •  would rec if I could (2+ / 0-)
    Recommended by:
    lotlizard, Rabbithead

    great essay.

    Steny Hoyer = a slam dunk argument for term limits

    by jlynne on Mon Oct 06, 2008 at 12:20:20 AM PDT

  •  Rec'd in spirit. This is what's really important. (0+ / 0-)

    Not campaign antics.

    See the Dutch children's chorus Kinderen voor Kinderen live October 11 in the Amsterdam ArenA!

    by lotlizard on Mon Oct 06, 2008 at 02:18:35 AM PDT

  •  This should be a must read. (0+ / 0-)

    Well done and thank you for putting the muddled thoughts I have had for years into a well written diary.

    Criminal actions MUST be punished. Failing to prosecute crime undermines the Rule of Law and only encourages other criminals to do violate the same laws using the excuse of precedent.

    America, billions in debt, prices have doubled, taxes break our backs, and we are still fighting. It's tragic and it's time for a change. D.D.E (cut2fit)

    by zooecium on Mon Oct 06, 2008 at 08:33:51 AM PDT

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