Tortured Politics

Anyone who has had the the unfortunate luck of having to talk to me over the last couple of weeks, has had to deal with my constant commentary on whether to prosecute members of the Bush administration over their "Global War on Terror" (GWoT) policies.

I have been rolling the issue over and over in my mind for a few weeks now, and have decided to commit some of it to the Internet machine. From my perspective there seem to be at least three distinct camps of argument on this issue; those who think prosecutions should take place, those who do not, and those who think they probably should take place but now is not the best time because we should "look to the future and not the past".

If I were to describe my feeling on the subject I would place myself squarely in the first group I mentioned. Those who wish to see prosecutions now. All the various camps have their rationales. From commentary on the nexus between National Security and Liberty to simple paeans to the Rule of Law. Listed below are few examples of the types of argumentation I have been seeing in defense of immediate prosecutions or against prosecutions; Joe Klein vs Glenn Greenwald as well as few other commentaries (with the Ignatius and Scarborough pieces being against prosecution):

Klein I

Greenwald

Klein II

David Ignatius

More Greenwald

And this exchange on "Morning Joe" between Joe Scarborough and Krista Freeland.


These are the confines of the argument, that I am interested in. Regardless of whether you think torture is effective or not, it is illegal by U.S legal precedent and law. If that is taken as my thesis statement (in a real thesis it would be backed up by citations of Article II of the constitution and relevant sections of the Geneva Conventions treaty, but this is a blog and I fear this has become too long a post as is!), and it is conceded that under U.S legal code it is illegal to torture prisoners, what is gained from not prosecuting the individuals involved?

I happen to believe it is morally reprehensible as well as illegal. I will try, however to keep it to the legal ramifications ( I will fail, but I thought I should at least state that intent). In that vein I will immediately disregard what I placed in parenthetical! Because I could go on for days about the developed mentality that these acts are less heinous if "we" do them because we have cause. Everyone has "cause" when they do horrible acts, the current Gaza-Israeli conflict is a prefect example of that as well as our current deliberations on possible torture prosecutions.

Okay back on subject. What I am more concerned about is whether we are a nation of laws or not. Either we all are viewed equally under the law, from the lofty perches of the White House down to the dregs of the Louisiana bayou, or we are not. That seems to be what is being glossed over here. Investigations into whether Roger Clemons lied to congress (yes!), but nary a peep from the DoJ on the demonstrably false statements from the Bush Administration about its policies? (See here on the sort inequities I am talking about.)

I am not arguing whether these torture policies were necessary or not in the instances it was used. That is actually irrelevant to me. Whether it provides actionable information or not is relevant either. I am merely concerned that if torture was used, it was illegal. It is fine if you think it was justified, I merely ask that you be held accountable for those actions in a court of law. Lay out your defense, and if a judge, jury or tribunal finds those reasons sufficient then so be it. But laws were most assuredly broken, in the case of whether terrorism suspects were tortured or during the whole FISA debacle.

So it is not as David Ignatius says in the above article:

To underscore the message, Obama indicated that he would oppose retrospective investigations of wrongdoing by the CIA and other agencies, arguing: "When it comes to national security, what we have to focus on is getting things right in the future, as opposed [to] looking at what we got wrong in the past." This is the kind of realism that will disappoint liberal score-settlers, but it makes clear that Obama has a grim appreciation of the dangers America still faces from al-Qaeda and its allies.

It is about whether we are a nation of laws or not, and it is important in a nation of laws that those laws be applied equally to all.

A pleasant note from the confirmation hearings this morning.


This is the sort of thing I want to hear from people in charge of safeguarding our rights and civil liberties, and one part of this has to be prosecuting those who break those laws. It is important for the integrity of the legal system that happens. If you believe that a law is inadequate, change it, do not simple ignore it. If you believe that there are mitigating circumstance which should absolve individuals of criminal penalties then have the laws rewritten to reflect that. Do not try to dodge it.

It is not a matter of "settling scores", it is about what our laws mean, and whether there are any constraints on those we place in power.

For me, the answer will always be "Yes there are constraints, and that is why we have a Constitution."

-cheers