One of my fellow Kossacks, in the interest of a healthy debate, clarified the position of those calling for prosecutions, or investigations and why. I say that diary is very well laid out, and I'd like to submit my own position. Again, all in the interest of healthy debate. I want to clearly advocate why I support the President's approach to this entire issue. I'll try to speak as plainly as I can, without getting into legalisms if I can.
First, torture isn't a vogue issue for me. I understand that it has been a part of the criminal justice system, political or otherwise, since this nations founding. Torture is not rare, its common. For those of you who are truly concerned about torture in America, I encourage you to read the many books and journal articles of Professor H. Bruce Franklin at Rutgers. Professor Franklin is an activist and cultural historian. He has written scores of books and hundreds of articles on the American prison, the Vietnam War, and many other subjects.
The American Prison and the Normalization of Torture
Okay. First lets get the myth out of the way:
I am not in favor of torture.
I've heard an argument that says if you support the President's position to "look forward" means you favor torture. It proceeds from an argument that says a crime that goes uninvestigated or unprosecuted amounts to endorsement of said crime. This makes no sense to me. Torture occurs and goes unpunished daily in this country, yet it does not lead me to conclude that this country is in favor of torture. To argue this point would require some serious mental gymnastics: Because Lincoln didn't prosecute the rebels after the war, meant he was in favor of the rebellion. This has no merit whatsoever.
I have no objections to prosecuting those who authorized torture.
I don't know how much more clearer I can be on this point. I am not advocating that there be no investigation or prosecution of those who authorized torture. That is perfectly fine and appropriate. Furthermore, I would hope that the investigations are conducted in such a way as to lead to political officials of the Bush Administration. I would prefer to move on, but I am not opposed to these prosecutions. My reasons are political and are centered around my desire to take advantage of a legislative window that will close on every president. I would prefer to move on for political reasons. These reasons are just as valid as the political consensus that allows torture to continue unabated in our prison system.
Aside: One of the things that makes me a bit angry is the message these prosecutions send to minority groups: Torture that happens to you at the hands of the Governor and Warden is not that big a deal. But torture that happens to suspected terrorists at the hands of the Bush Administration is a very big deal that must be eliminated from our society.
Now on to the meat of the reasons to "move on."
- I've heard it argued that torture investigations are more important, or as equally important as the President's legislative agenda. I disagree with this. The President's legislative agenda is his mandate to govern. This is what he was elected to do.
- I've heard it argued that the President was elected to go after the Bush Administration for torture or war crimes. He never campaigned aggressively on that. He did, however, campaign very aggressively to close Guantanmo and end torture. This he has done by executive order.
- I've heard it argued that should the president choose not to investigate or prosecute torture, that this would be tantamount to lawbreaking. I have discredited this argument legally. Politically, however, it is valid. There is no question that the President will have to live with the decision let those who performed the torture get away. This will, in my opinion cause him minimal damage domestically for now. However, it will be a blight historians will note. I think that every president has a blight of some sort. This one will be a minor footnote if he is able to enact his big picture agenda.
- I've heard it argued that by investigating or prosecuting torture, a sort of national catharsis will occur that will purge torture from our society. This is one of the more weaker arguments I've heard. Any cursory amount of googling will reveal that torture is an ordinary part of the criminal justice system. The Abu Ghraib perpetrators were corrections officers. Nothing they did was new to them. The idea that these prosecutions will mark a final departure from torture in this country is highly idealistic. Torture will occur, and it will, on occasion, go unpunished. Just like every other crime.
- I've heard it argued that political considerations should be dispensed with, because the crime of torture is heinous, so beyond any standards of civilized society, it is morally equal to mass industrial genocide. Thus the Nuremburg comparisons. It follows then that all political considerations of any other nature must be put aside. I disagree. As I've said, and I know this is harsh, but this shit happens. It happens every day. In America. That does not excuse it. Nor does its prominence in the news media, or the fact that the Bush Administration performed it, magnify it into the Holocaust. We should keep things in perspective. Because I feel this isn't the Holocaust, comparisons to Nuremburg are beyond the scope of the problem. What we really have here is a "cruel and unusual" case and it should be treated as such.
Aside: Under our implementation of the CAT, the definition of torture is our "cruel and unusual" standard. But even under our standard, waterboarding is torture, but you'll never hear the administration admit it! If I were on the other side, I'd press the adminisrtation on this! hint hint
I disagree with the position that line officers of the intelligence community should be prosecuted or investigated.
- I believe that from a legal point of view, there is unlikely to be a conviction. I believe that any investigation will lead to sufficient evidence to prosecute, but that such prosecutions are far more likely to result in acquittal than conviction. If resources are to be allocated to winning convictions, I feel that it is in the public interest to use those resources, investigative and prosecutorial, on those where conviction is more likely. The President's view is similar, in that he says there may be those who went outside the bounds of what was understood to be law. One objection to this decision is that it gives those who may have committed torture a "just following orders" defense. This is not an objection to my point. My point is that the decision not to go after them is in the public interest because doing so will not result in conviction, not that this defense is valid. In fact, there are so many other means to win acquittal I doubt any defense lawyer will offer it.
- I believe that trials of line officers will be politically counterproductive, both domestically and internationally. First, I believe the public will align themselves with the line officers long before they align themselves with those who were totured. As an example, Khaled Sheikh Muhammed murderd reporter Daniel Pearl. He is an avowed terrorist who makes no apologies for it. He most certainly must be called as a witness, as the jury would certainly have to hear from him to have sufficient evidence to convict. I am certain he would use this platform to speak to the Arab world in ways that will not be kind to us. I simply do not see the public lining up behind someone like that, especially when Pearl's widow ends up on 60 minutes. Who will be blamed for attacking a patriotic CIA agent, doing his best to protect this country from this madman? Guess who. Additionally, as any prosecutor will attest, trials are risky. All sorts of things can happen in a trial, only these would have big ramifications with respect to the conduct of American foreign policy. I believe there be long public, televised trials, followed carefully in the Arab world. I believe that as the details are outlined, there will be furor. And I believe, as I've stated, that implications of a torturers acquittal are profound and dangerous, especially as we try to exit Iraq.
- I believe that those who argue a special prosecutor would remedy any political damage to the Administration or its agenda have short memories. Independent prosecutors are loose cannons. They are accountable to no-one, and have virtually unlimited power. I think we had enough of that with Kenneth Starr, which is why Congress let the independent counsel law expire. It is ridiculous to give one individual the power to bring government to a halt, as has happened. If we are going to have prosecutors, they should be accountable to someone, not off on their own running amock. If we are going to go forward, it should be through the normal, but somewhat modified or enhanced process of the U.S. Attorney's office in tandem with the FBI, accountable to the Attorney-General. I believe a special prosecutor with accountability to none is a bad for the proper conduct of government.
- I've heard it argued that despite all of the things I've outlined here, that the United States, if it is to have moral credibility in the world, that if international laws against torture mean anything, we absolutely must investigate and prosecute. To not do so would give a green light to any nation that wishes to do so. That even if it were to cost Obama his agenda, the Democrats their majority, and America its standing in the world, we simply MUST do it...damn the consequences. Well, I believe that this a dangerous view. Nothing is so serious, other than war, that forces us to stop what were doing, throw all caution aside and deal with it. I believe the challenges this nation faces, from its economy to its large deployments of its citizens in hostile lands, compells its public officials to focus far more on those tasks than dealing with the fallout of torture cases. Make no mistake, this process will be political. There is no avoiding this, as the president said today.
- Finally, the central reason we should "move on" in my opinion? Because its historically what this nation has done, and what has historically proven the most prudent course of action. I return to Lincoln after the civil war as a guide. Without question, the rebellion of the Southern States in defense of slavery was a far larger and more openly illegal and morally repugnant act than what we are facing here. Had Lincoln decided to prosecute and hang the rebels for treason, as was custom, he would be regarded today as a brutal, genocidal dictator. Come to think of it, Confederates DID say that about him and still do. Yet, he choose to "move on:" What if Lincoln decided to hold Southerners accountable for slavery, banned in many nations of the civilized world for 50 years prior, as abolitionist Harriet Beecher Stowe advocated:
There has been, on both sides of the water, much ill-advised talk of mercy and magnanimity to be extended to these men, whose crimes have produced a misery so vast and incalculable...it is no feeling of personal vengeance, but a sense of the eternal fitness of things, that makes us rejoice, when criminals, who have so outraged every sentiment of humanity, are arrested and arraigned and awarded due retribution at the bar of their country's justice. There are crimes against God and human nature which it is treaon alike to God and man not to punish...If there be those whose hearts lean to pity...let them think of the thousands of fathers, mothers, sisters, whose lives will be forever haunted with memories of the slow tortures in which their best and bravest were done to death.
Emphasis is mine. We could have done that.
Lincoln, the wise, chose differently:
With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.