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Tortured Democracy (Zeus Y., May 7, 2009)
"Good faith" may have limited application in contract law, but it has no place in constitutional law. If you flout the highest law of the land, especially if you are a top-level decision-maker, you should be brought to justice. If you provably condoned, approved, and justified torture against established national and international law, you should be prosecuted. Your reason for breaking the law is immaterial to prosecution itself, even as it may have a mitigating effect on filed charges and punishment. When I get caught for speeding, I can’t simply say, "I was trying to obey the speed limit in good faith. I just didn’t realize I was going 20 miles per hour over the speed limit (and besides I had some really important job to do)." "Okay, we’ll have to let you off with a warning because we can’t prove bad faith." What?
Reasons for breaking the law cannot be the basis for running a fair and equitable legal system. If any nation is to be a nation of laws and not of men, “good faith” cannot be the arbiter of what is prosecutable or not. I’m disturbed by all the D.C. beltway talk about how hard it would be hard to prove bad faith with Dick Cheney’s and George W. Bush’s flagrant transgressions, as if intent decides who does and doesn’t break the law. Will there be a different standard of law for top-level decision makers— bad intent, not bad actions? If that is the case for everyone, any time a miscreant, vigilante, or nut job decided to take matters into his own hands, we’d have to let him off.
A corollary of this insane line of thinking is the policy angle. This decision to systematically torture wasn’t extralegal; it was simply a "policy choice," and we can’t go about impugning the authority of previous leaders otherwise we become a banana republic (or so goes the Republican talking point). Actually, NOT prosecuting people for war crimes at Nuremburg or waterboarding in WWII Japan, is what makes us, if not tin-pot dictators, parties to the crimes of such dictators. I thought Nuremburg established that following orders was no defense. I thought ignorance of the law was no offense. I cannot believe that something superseding both of those in violence against law and human decency, top-level executive decision-makers actively deciding to break and/or rewrite the law on torture could be simply given a pass.
To allow this to happen without any attempt to bring the lawbreakers to justice is to cede any sense of principle whatsoever and to enable increased abuses against democracy. Are we prepared for that? The current “moving forward, not looking back” argument does not appear to have worked historically (Democrats' 'Battered Wife Syndrome'). Nixon’s men were caught by LBJ leading up to the 1968 presidential election carrying on clearly illegal, and frankly treasonous, side negotiations with the South Vietnamese in an effort to delay peace talks to give Nixon a better chance to win. Democrats remained silent and let him get away with it to “spare the country” the pain of such a revelation. Nixon, elected and emboldened as a result, created Watergate. Nixon’s men, Dick Cheney, Donald Rumsfeld, and Paul Wolfowitz took the lesson from this prosecution that a secret, "unitary" executive was the only way to push through a muscularly righteous foreign policy. Ronald Reagan made back channel talks with Iran to delay the hostage release to defeat Jimmy Carter, then got embroiled in his own Iran-Contra scandal. So it continued to gain strength up through Bush II in warrantless eavesdropping, torture, presenting false evidence for war, because these practices were covered over and not effectively and consistently brought to accountability and transparency.
This same refrain continues to repeat itself even in the Obama presidency: Republican use
of illegal and dirty backroom deals for political power (and unapologetic hubris when
caught) and Democratic capitulation, enablement, and silence, each time in an effort to
"spare the country" and "move things forward." This pattern and dynamic has only served
to degrade this nation’s moral character, standing, and morale. Unless a fierce and
principled compassion can replace this kind of "don’t ask, don’t tell" approach to justice
we will continue to shrink from being a nation of the people, by the people, for the
people. It makes no sense for President Barack Obama and Attorney General, Eric Holder
to declare, "Waterboarding is torture," to have Dick Cheney publically admit that he
personally okayed waterboarding, and then not prosecute. "We won’t do it going forward"?
What sway does that have, except to imply, "But if you have a different opinion and
you’re elected President, go for it!" This is not a matter of opinion or of policy.
It’s a matter of law, and we are signatories to treaties that say we are obligated to
prosecute torture. We are thus required, by all that we are, to fulfill our obligation.
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