As my regular readers know, I have written in the past that I believe the actions of the Bush Administration in authorizing torture broke American and international law and some accounting is necessary in order for us to confront what the government did in our name.
I will not rehash the arguments for and against torture. Suffice it to say, I reject the notion that the ends justifies the means for a variety of reasons, and that I believe those who are sincere in their support of Dick Cheney’s rationale for “enhanced interrogation techniques” have lost sight of one of the things that makes us an exceptional nation; our respect and reverence for the rule of law.
That said, I have also rejected the idea of torture prosecutions - not because I believe the guilty should get off scott free but because any reasonable and fair minded person looking at the matter knows that the administration believed they were acting in the best interests of the nation, and that they honestly believed they had finessed the treaties and statutes by their stretched, and ultimately legally incorrect justifications for torture. Was it wrong for the Bushies to try to extend a fig leaf of legality over what turned out to be serious violations of domestic law and international agreements? I believe they felt they had little choice. To my mind, that doesn’t make it right, nor am I convinced (nor are interrogation experts) that non-torture techniques couldn’t have elicited the same information.
Yes, torture was probably responsible for Khalid Sheikh Mohammed spilling some secrets. But what we’ll never know is if the professional interrogators would have been able to break him down using legal methods. Rejecting the “ticking bomb scenario” as unrealistic, I and many others - including many in the military and intelligence communities who interrogate for a living - have come to the conclusion that the plots broken up because of our waterboarding KSM would probably have been foiled using perfectly legal means of interrogation.
But this doesn’t answer the question about prosecuting or not prosecuting offenders - including high level officials who ordered underlings to break the law. Fred Hiatt, writing in WaPo today, has a thoughtful, but ultimately flawed analysis and recommendation:
On the one hand, this is a nation of laws. If torture violates U.S. law — and it does — and if Americans engaged in torture — and they did — that cannot be ignored, forgotten, swept away. When other nations violate human rights, the United States objects and insists on some accounting. It can’t ask less of itself.
Yet this is also a nation where two political parties compete civilly and alternate power peacefully. Regimes do not seek vengeance, through the courts or otherwise, as they succeed each other. Were Obama to criminally investigate his predecessor for what George W. Bush believed to be decisions made in the national interest, it could trigger a debilitating, unending cycle.
By attempting to navigate between these two principles, Obama has satisfied neither. Last week his administration took another step down a path of investigation and recrimination, without coming any closer to truth-telling or justice as most Americans would understand it.
Even with the best of intentions - and I do not grant the Obama administration that desire based on the rank partisanship they have demonstrated from top to bottom - any prosecution would necessarily be perceived as being politically motivated. The same holds true for any congressional hearings. The idea that the Democrats could conduct anything approaching non-partisan, or at least fair hearings on this issue, involving the Bushies, is laughable. The pressure on Democrats in Congress to turn the hearings into an inquisition from their rabid, partisan base would be overwhelming.
Hiatt suggests a presidential commission:
There is a better, though not perfect, solution, one that the administration reportedly considered, rejected and should consider again: a high-level, respected commission to examine the choices made in the wake of Sept. 11, 2001, and their consequences.
Such a commission would investigate not just the Bush administration but the government, including Congress. It would give former vice president Dick Cheney a forum to make his case on the necessity of “enhanced interrogation techniques.” It would examine the efficacy of such techniques, if any, and the question of whether, even if they work, waterboarding and other methods long considered torture ever can be justified.
Some on the left would object because the goal would not be prosecution and punishment; as in South Africa, amnesty might be promised in exchange for truth-telling. Some on the right, and some in government now, would worry about damaging national security with public airing and rehashing of past misdeeds.
Hiatt bases the idea for this commission on what he believes is a pre-requisite for such a body to be effectve: that “the two political parties compete civilly…” I don’t know where Mr. Hiatt has been spending his days these last couple of decades but it certainly hasn’t been in Washington if he truly believes what he wrote.
There is no civility between the parties. It is all out partisan warefare on any and every issue of consequence - and usually on trivialities as well. Both sides blame the other for this state of affairs, which would be amusing in any other context. The parties are locked in a death grip, driven to hold on with bulldog tenacity by their rabid, uncompromising, unforgiving bases of support whose influence is all out of proportion to their numbers.
But these hysterical party men are also their most reliable voters, as well as being a significant source of volunteer campaign help, and a wellspring of donations for the member’s re-election. It doesn’t take much for the base to turn against a member and given how organized they have become, can turn out a primary candidate to challenge the member on a whim.
For civility to return to politics, there must be a basic recognition by both sides that the other side has the best interests of America at heart. This does not seem possible when the leadership of both parties toss around epithets like “evil mongers” or “culture of death” to describe the other side.
A presidential commission of the kind suggested by Hiatt might succeed in gathering relatively non-partisan members, but couldn’t help being caught up in the vortex of partisan wrangling. Every finding, every witness, every statement made would be filtered through the unique prism found in the base of both parties. It would be marginally different than a select congressional committee and much better than prosecutions. But it would ultimately fail to satisfy either side because it’s mandate would not be to score political points but to find some elusive “truth.” Rather than serve to illuminate what happened and heal the nation, such a commission would eventually be seen by both sides as favoring the opposition.
We live in a different country than existed at the time of the 9/11 Commission. The undisguised hatred of President Bush and the virulent reaction of his supporters to defend him by trashing the opposition over the last 8 years has made the atmosphere in Washington worse than it was in 2002.
It may be that Hiatt’s idea will turn out to be the best option in a universe of bad choices. But it is not a solution as long as neither side trusts each other enough to put aside the massive distrust each holds for the other and see the wisdom of trying to come to grips with this unique, and to my mind, tragic interlude in our nation’s history.