In an oped in yesterday's NYT, Al Hunt says:
Alberto Mora says it’s "politically unthinkable" to criminally prosecute the top Bush administration officials who sanctioned torture. He also says it’s "legally unthinkable" not to hold them accountable.
It is a fine synopsis of the supposed conundrum that has gripped all of the people in America who purport to be experts on such things. But consider it plainly, for just a moment. Which of the two is worse?
If you have something that is "politically unthinkable", and something that is "legally unthinkable", are those truly two equal evils? Are we truly going to submit, as hypothesis, that in a choice between taking an action which is politically convenient but criminal, or politically devastating but legal, that it should be a tough decision for a government to make?
This is why the entire debate makes me ill. I think we are all used to the notion that there are monsters among us: Charles Krauthammer is as divorced from both morality and reality as one could possibly be, which is precisely why he continues to retain supposedly respectable venues for his scribblings long after every one of his prognostications has proven to be as wrong as his arguments are corrupt. It is another thing, though, to find the stomach to accept that indeed, an even share of our supposed greatest minds truly find any of this to be a quandry. Can we follow this law, if important people violated it? Or would asking that our laws be followed even by the powerful be -- shudder -- vengeful?
Mora says, as cited by Hunt, that prosecutions of political elites would "tear the country apart." It is astonishing how well-travelled that particular canard is. It made it from the age of Nixon to our present day with surprisingly little wear and tear, so carefully has it been tended to by our political betters (mostly the same tenders now as then, uncannily enough.)
But again, what is the greater danger to a nation: that the law be applied to the politically powerful, or that the politically powerful be declared immune from inconvenient laws? Is this truly something worth pondering? Is there any bulb so dim, in our political string of lights, to honestly, genuinely believe that this country cannot stomach abiding by the laws it sets out for itself?
It seems an argument that could only spring from insipid cowardice. The author of the "tear our country apart" argument is saying, by proxy, that they themselves cannot bear to see the law applied in a particular case, and fear chaos because they naturally assume the rest of the nation is as corrupt as they are, or as enamored with the privileged as the privileged themselves are. I think neither is likely to be the case, but I am fairly certain that a continued history of immunity from the consequences from their actions would be a corrupting influence.
I am honestly not sure what else could possibly be said. Last week saw President Obama state, directly: "I believe waterboarding is torture." He need not have put the qualifier, "I believe," because waterboarding has been considered torture since long, long before we currently pretended at a debate about such a thing. Torture is a violation of both American and international law.
That should be the last words on the subject from the president's mouth: from here we should expect to see not a "truth commission", or a "blue-ribbon panel", or any of the other vacuous approximations of justice that are hastily constructed when something abominable is done by somebody too significant to be merely judged by the standards and laws held out for every last one of the rest of us, but a criminal investigation that uncovers what was done, how it was done, and who did it.
It is impossible to maintain the fiction that waterboarding even a heinous criminal one hundred and eighty-some-odd times, keeping a medical staff and preparations for immediate tracheotomy on standby in case something "goes wrong," does not rise to the level of torture. For that matter, you cannot claim that anyone who is knowledgeable enough about what waterboarding is, with enough expertise to know how to do it "safely", would never have been exposed to the rather central fact that the process was historically considered to be torture, regardless of whatever legal documents were horked up just before or just after the act.
Imagine how monstrous it would be -- how indescribably vile, how shudderingly evil -- if an investigation uncovered evidence that waterboarding was indeed done as futile attempt to find links between al Qaeda and Iraq that never existed. That the hundredth or hundred-fiftieth torture event was undertaken to get "evidence" that the prisoner could never have had to begin with, not after the first session of torture, the second, or the first few dozen.
No, we cannot even think such a thing. The first assertions from the torturers were that we did not torture; then the argument was that we did, but only for scant moments. No we know that we did it often, that we made a policy by Executive Order of treating prisoners inhumanely, in violation of our laws. The bargain we are asked to accept now, in this current round of justification for carving away at our own humanity, is that yes, we may have done it, we may have committed that which we would consider a war crime if done by any other nation, but it was effective. We gained from it -- and more than we lost, I would presume. According to Krauthammer and dozens of others, the current distinction between a war crime to be prosecuted and one to be ignored is now simply one of effectiveness.
So now we will have that debate as well, and a year or two from now we will, I hope, appropriately feel like monsters for even entertaining such a thing, but not before a great many people furrow their brows and consider it a while. Likewise, we will consider Mr. Mora's words, and whether or not we can stomach risking our fine nation on such a trivial and petty thing as enforcing our own laws and moral fiber.
But we are at least beyond the point where we can pretend the actions of the proponents of "enhanced interrogations," to use their own euphemism, were legal. That would seem to make the next required steps very clear indeed.