Instead of looking closely at what high-level officeholders in the Bush administration have done over the past eight years, and recognizing what we have tacitly permitted, we would rather turn our faces forward toward a better future, promising that 2009 and the inauguration of Barack Obama will mean ringing out Guantánamo Bay and ringing in due process; it will bring the end of waterboarding and the reinstatement of the Geneva Conventions.
Indeed, the almost universal response to the recent bipartisan report issued by the Senate Armed Services Committee — finding former Secretary of Defense Donald H. Rumsfeld and other high-ranking officials directly responsible for detainee abuse that clearly rose to the level of torture — has been a collective agreement that no one need be punished so long as we solemnly vow that such atrocities never happen again.
This hope that the election represents some kind of legal self-cleansing, a constitutional “rebooting” of the rule of law, is of course not the language of the law. It is the language of recovery, of religion, of political pragmatism.
Those who say that there should be no investigation or prosecution of senior officials who authorized torture and warrant-less surveillance rarely even bother offering legal justifications. They argue that the Obama administration has more urgent problems to contend with. They insist that any such process would devolve into partisan backbiting from which this country could never recover. And they insist, as did Attorney General Michael Mukasey in early December, that there is no basis on which to prosecute the architects of torture and wiretapping policies because each was acting to “protect the security in the country and in the belief that he or she was doing something lawful.”
Others — including unnamed officials on the Obama transition team — have already claimed that there is simply no political will for criminal prosecutions, or even a truth commission.
Of course all this is not the language of the law either. It is the language of self-fulfilling prophecy. With each successive recitation that there is no political will, the political will dissipates. With each repetition of the mantra that Americans just want to turn the page on the past eight years, Americans feel ever better about turning the page.
And why wouldn’t we? We aren’t merely forgiving Mr. Rumsfeld and Vice President Dick Cheney (who admitted in December to approving torture techniques) and others for their actions. We are also forgiving ourselves. We are telling ourselves that what happened at Abu Ghraib is behind us, and that what happened at C.I.A. black sites is over. We are telling ourselves that bad people did bad things under bad circumstances, but that it’s better to forgive and forget, that we are really truly sorry and it won’t happen again. We sound like a nation of drunks after a bender. We are full of good intentions, but unwilling to hold ourselves to account.
Nobody is looking for a series of public floggings. The blueprints for government accountability look nothing like witch hunts. They look like legal processes that have served us for centuries. And, as the Armed Services Committee report makes clear, we already know an enormous amount about what happened to take us down the road to torture and eavesdropping. The military has commissioned at least three investigative reports about the descent into abusive interrogation. Michael Ratner, the president of the Center for Constitutional Rights, has compiled what he believes to be sufficient evidence to try senior Bush administration officials for war crimes. More previously secret memos from the Office of Legal Counsel were released just last week.
Nevertheless, it’s clear that the first step will be a thorough determination of what has occurred. To that end, this week the House Judiciary Committee chairman, John Conyers Jr., introduced legislation for a panel to investigate the “broad range” of policies pursued by the Bush administration. Such a commission would not constitute a criminal investigation, but it would not preclude one either.
Some commentators have suggested that any such truth commission should promise immunity or a pardon in exchange for truthful testimony, but I believe that if it becomes clear that laws were broken, or that war crimes were committed, a special prosecutor should be appointed to investigate further. The Bush administration made its worst errors in judgment when it determined that the laws simply don’t apply to certain people. If we declare presumptively that there can be no justice for high-level government officials who acted illegally then we exhibit the same contempt for the rule of law.
It’s not a witch hunt simply because political actors are under investigation. The process of investigating and prosecuting crimes makes up the bricks and mortar of our prosecutorial system. We don’t immunize drug dealers, pickpockets or car thieves because holding them to account is uncomfortable, difficult or divisive. We don’t protest that “it’s all behind us now” when a bank robber is brought to trial.
And America tends to survive the ugliness of public reckonings, from Nixon to Whitewater to the impeachment hearings, because for all our cheerful optimism, Americans fundamentally understand that nobody should be above the law. As the chief prosecutor for the United States at the Nuremberg trials, Robert Jackson, warned: “Law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power.”
[Source: By Dahlia Lithwik, NYT, Carlottesville, Va., 10Jan09]
State of Exception
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