On the Need to Prosecute Those Who Authorized and Committed Torture

            Let’s acknowledge that the “enhanced interrogation techniques” that included the infamous waterboarding of suspected al Qaeda terrorists were a violation of international law.  No responsible international law expert argues otherwise. 

            Let’s also acknowledge that those techniques were also a violation of United States law, as most jurists and lawyers, apart from Bush administration apologists, assert.

            Let’s finally agree that the current administration, as stated by the president himself, has re-established as a matter of U.S. policy and law that the United States does not engage in acts of torture and that, implicit in that statement is the recognition that the actions and policies of the previous administration that permitted and encouraged the use of torture were clearly illegal.

            What remains to be decided if those points are all accepted is whether those who engaged in or authorized those actions should be prosecuted by their own country.

            On this point, the debate has been multi-faceted.  The Bush-Cheney apologists, principally consisting to this point of former Vice-President Dick Cheney, argue vociferously that those responsible not be prosecuted. 

In fact, if the Cheney argument (that waterboarding and its kin actually saved American lives) is taken to its logical conclusion, the American initiators and perpetrators of torture over the last seven years probably deserve medals akin to those awarded to Paul Bremer and George Tenet by President Bush for their roles in the war in Iraq.

            The current president takes what might be considered a more lenient position.  Obama argues, somewhat incoherently in the view of his critics, that prosecutions for carrying out illegal orders would be wrong, while he leaves open the possibility that some who authorized the techniques might be subject to prosecution provided the Attorney General makes such a decision.  He is less open to prosecutions resulting from the study of a “commission” or a Congressional inquiry.

            And then there are those, epitomized by Senator Patrick Leahy of Vermont, who adamantly demand that those responsible for the criminal acts perpetrated against terrorist suspects be fully prosecuted.  At the least, Leahy and many of his colleagues argue that the “rule of law” requires that past-committed crimes are no less crimes because they have ceased to be committed.  (The point sounds so obvious as to be laughable, but it is made in an effort to thwart the apparent attempts by Mr. Obama to leave the past to history, presumably so as to deal more forcefully with the real problems/crises of the present.)

            The debate might well be almost trivial for most Americans as the country struggles to regain its economic bearings.  Most average folks are more concerned with whether their retirement accounts are going to be worth anything when they need them than they are with whether CIA agents and government policy-makers should be sent to jail for doing nasty things to people who were intent on killing Americans.

            But it is for precisely this reason, the lack of concern and interest by most Americans, that a vigorous prosecution should be explored of all who were involved in the perpetration of acts against enemy belligerents that, if those belligerents had inflicted those acts on Americans, would have led to an international tribunal to bring the guilty to justice.  (Indeed, just such tribunals were commissioned to try and punish Japanese perpetrators of similar acts of torture following the allies’ defeat of Japan in World War II.)

            In the end, however, the question isn’t so much one of bring wrong-doers to justice as it is rediscovering a country’s soul. 

            Under George W. Bush, America lost its way.  Buffeted by the 9/11 attacks, most Americans rightly felt outrage.  Patriotic fervor soared, as did the president’s approval ratings.  He stood for the country, and the country stood with him.  When Bush led the country to war against the Afghanistan government that had provided a safe haven for the 9/11 terrorists, the country, and much of the rest of the world, was united behind him.  But that president and his administration were negligently, if not criminally, misguided in their identification of the over-riding purpose of that war.

            The “war on terrorism” was an all-too convenient moniker for what soon became an American “crusade” – as Bush initially referred to it – in which any means that had the potential of crushing anti-American terrorist plots was deemed legitimate.  By so defining the war, the Bush administration was able to justify torture.  And, as the record will most likely establish when all the evidence is revealed, the acts of torture that surfaced at Abu Ghraib were not isolated incidents, but were rather implicitly authorized and sanctioned by the highest levels of the U.S. government.

            The Justice Department memos, by John Yoo, Jay Bybee and others, that claimed to authorize as lawful specific acts of torture, were another aspect of this misguided purpose.  No longer was America acting lawfully; it was, instead, creating its own ad hoc view of the law, modifying it to meet its own designs.

            This line of thinking – something of a variant on “the end justifies the means” – also led to the invasion of Iraq, an act that marked the first time a major war had been initiated by the United States without any basis of lawfulness other than a claim of “preemption,” another word created out of thin air to justify what would otherwise be unjustifiable conduct. 

            So, why then must those responsible for the acts of enhanced interrogation (note the creation of yet another “convenient” term) that were really torture, pure and simple, be prosecuted by the current government of the United States? 

            Because only by fully revealing to the American public what its leaders perpetrated can the people who elected those leaders begin to take responsibility for their part in those acts.  Only by gaining a sense of what led to those decisions can the country acclimate itself once again to its own moral compass. 

            Only by accepting the horrors of torture, of unjustified war, of illegal wiretaps, of unconstitutional detentions, of the politicization of the Justice Department, of the destruction of the rule of law, can America rediscover its soul.