Posted by Thomas Nephew on April 27th, 2009
We have, in my view, a fairly simple set of connected propositions:
- Torture is illegal under United States law and international law.*
- The United States of America knows of Americans who have committed torture, as well as of Americans who have conspired to commit torture.**
- The United States of America is required by U.S. statute and international treaty to prosecute such crimes when it becomes aware of them.***
It’s really all over but the shouting and denials when you set these propositions next to each other.
Of course, shouting and denials there will be. But while I’d expect it from borderline psychopaths like Karl Rove, Rush Limbaugh, and Dick Cheney, it remains unsettling to see it from David Broder, who this weekend penned the most shameful editorial of a once illustrious career. Broder’s Sunday “Stop Scapegoating” piece is a kind of negative Gettysburg Address: a radical downward redefinition of the American creed. His lazy, deeply dangerous argument against prosecution boils down to one irrelevant canard, one telling assertion, and one pitiful abdication of what it means to be an American citizen.
Accountability cloaks vengeance – so no accountability
Broder’s irrelevant canard comes early in the piece in guessing at the motives of those who want prosecution, and pretending that should matter:
Obama is being lobbied by politicians and voters who want something more — the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps — or, at least, careers and reputations. Their argument is that without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.
As hilzoy writes, “First, who died and made David Broder Sigmund Freud? How on earth does he presume to know what the actually motivates those of us who think that the people who authorized torture should be investigated?” But also: “So what? Suppose our “plausible-sounding argument” is actually true: “without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations.” In that case, by not investigating torture now, we would be setting ourselves up for future government lawbreaking. Isn’t it obvious that preventing this matters more than anyone’s motives?”
Everything was done properly
But Broder’s most telling assertion — and, in the context of the rest of his opinion piece, the most deeply shameful one — comes next:
The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places — the White House, the intelligence agencies and the Justice Department — by the proper officials.
Let’s assume Broder was right (although he isn’t****). Would that be sufficient?
No it absolutely would not. No doubt the Bad Wannsee Conference featured all the proper officials, too; there were agendas, documents, minutes and meetings. Everything properly done, by the proper people — and irredeemably corrupt and evil all the same.
Mr. Broder asserts that since these things were decided by the right people, they were therefore defensible and legal. Nothing could be further from the truth, nothing could be further from anything our common law, the U.S. Constitution, and the rule of law, and hundreds of years of struggle stand for. It is precisely when people in power break the law and bonds of humanity that they must be held accountable; distrust of power and penalties for its abuse are (or were) the hallmarks of the American political system. Like some child or imbecile angrily tearing apart an annoying puzzle he can’t solve, Broder is helping tear down something he barely understands.
You say war crimes, I say policy disagreements, let’s call the whole thing off
That assertion is followed on its heels by a rank abdication of citizenship and responsibility:
One administration later, a different group of individuals occupying the same offices has — thankfully — made the opposite decision. Do they now go back and investigate or indict their predecessors?
That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness — and injustice.
Suppose that Obama backs down and Holder or someone else starts hauling Bush administration lawyers and operatives into hearings and courtrooms.
Suppose the investigators decide that the country does not want to see the former president and vice president in the dock. Then underlings pay the price while big shots go free. But at some point, if he is at all a man of honor, George W. Bush would feel bound to say: That was my policy. I was the president. If you want to indict anyone for it, indict me.
Is that where we want to go? I don’t think so. Obama can prevent it by sticking to his guns.
Perhaps if it’s said very slowly and loudly, Mr. Broder will understand: if Obama commits war crimes, I’ll want him prosecuted, too. If he doesn’t, I won’t. No doubt there will be some wingnuts who’ll want him prosecuted, anyway, to teach us all a lesson, but they won’t matter and it won’t happen. The reason that Bybee and Yoo, Rumsfeld and Gonzales, and Cheney and Bush are in hot water now — or at least see the steam rising off in the distance — is because they deserve to be, and certainly not because they face unusually cunning or powerful political foes.
Now I’m inclined to agree that it would be an injustice to stop at the underlings before getting to the higher-ups. Trouble is, that’s what we’ve done already. How is it that Lynndie England served time for her pitiful role in Abu Ghraib, or Spc. Glendale Walls for his in Bagram — and John Yoo hasn’t? Or are grunts like England and Walls too lowly to even qualify for “scapegoat” status? To paraphrase Lincoln’s famous question (and with at least as much if not more justice), “Must I jail a simple-minded soldier girl who leads a man on a leash, while I must not touch a hair of a wily lawyer who approves waterboarding and stress positions?”
As for Broder’s big nightmare — bring it on. First and least, say the words “man of honor” in connection with George W. Bush, and the phrase “fat chance” powerfully suggests itself. Second, Bush can say whatever he wants, that won’t drive a prosecutor’s decision, the ability to get a guilty verdict will. And should.
But third, and most importantly, far from being something to be feared, ’tis a thing devoutly to be wished that a President be proven not to be above the law. Don’t let them tell you it’s happened before — it never has: Ford famously short-circuited the possibility with Nixon, no doubt to Broder’s strong approval.
No, this is arguably a test all of American history has been preparing for — the proof that no one, not even the most powerful person in the land, is above the law. Broder acts as if that’s a shameful possibility driven by nothing more than the desire for partisan vengeance. To the contrary, it would be the most glorious demonstration of the rule of law, and of the primacy of human rights — anyone’s human rights– humanly conceivable. And Wormtongue Broder counsels us to avoid it.
There’s more, of course. There’s a whole post, no, a whole magazine article in Broder’s (and his ilk’s) euphemisms for torture — Broder’s own weasel phrase is “painful coercion.” There are also the familiar Broderian tropes of “standing up to the grassroots” and “confronting populist anger” — as if truths become less convincing the more people strongly hold them to be self-evident.
The one good thing about Broder’s piece is that it’s hard for me to imagine Obama reading it and not feeling a flush of shame creep over his cheeks. True, Obama is all too much like Broder in putting a premium on avoiding conflict. He’s all too slippery when it comes to honoring campaign promises (like the ones about not supporting FISA bills with telecom immunity, or about not undermining a publicly financed presidential election campaign.) And he’s been far too willing to take up Bush administration arguments — from secrecy to habeas corpus — and make them his own.
But it’s hard to imagine him reading this piece and saying “Yes, exactly; that is who I am; the chance to duck this responsibility is why I’m President. David Broder’s way with words has convinced me at long last!” At the end of the day, I pray that Broder’s approval — based on such a pitifully weak sense of what America is, and based on such an embarrassingly self-centered sense of what it should be — cannot mean more to Obama than his own self-respect, and his own deeper sense of what this country should stand for.
* U.S. Code § 2340A. Torture; CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment
** Holder: Waterboarding Is Torture, And The President Can’t Torture; OLC memorandum: Khalid Sheikh Mohammed was waterboarded 183 times in one month; Judge Susan Crawford: Detainee Tortured, Says U.S. Official Trial Overseer Cites ‘Abusive’ Methods Against 9/11 Suspect; International Committee of the Red Cross report: “the ICRC clearly considers that the allegations of the fourteen [Guantanamo interviewees] include descriptions of treatment and interrogation techniques — singly or in combination — that amounted to torture and/or cruel, inhuman or degrading treatment.”
*** See, e.g., U.N. Rapporteur on Obama Amnesty for CIA Agents (Scott Horton translation of Austrian newspaper DER STANDARD interview with Manfred Nowak); Glenn Greenwald interview with Mr. Nowak.
**** See various items listed under “Practice to Deceive,” and more recently, Philip Zelikow’s revelation that copies of his memorandum opposing an OLC memo were gathered up and destroyed.
OTHERS ON BRODER: Andrew Sullivan, digby (“Hullabaloo”), Glenn Greenwald, Scott Horton, Brian Tamanaha: “Broder is wrong because the OLC lawyers were not asked for their opinion on policy. That lies beyond their charge. They do not have final authority on policy. They were asked to render a legal opinion on the legality of the proposed use of the abusive interrogation techniques. If the policy was illegal, it was the job of the OLC lawyers to say “NO,” as Bradbury asserts in his OLC Best Practices Memo, “even when that advice may be inconsistent with the desires of policymakers.””
MORE AMUSINGLY: Charles Pierce’s “Trust Me, Mr. President, I can take it,” excerpted here by Patrick Nielsen Hayden.
UPDATE, 4/28: Fareed Zakaria joins the “prosecutions would be criminalizing policy disagreements” brigade.
UPDATE, 4/29: So does Garrison Keillor — under the inexcusable title “Let War Crimes be Bygones.” Also: Thomas Friedman (h/t RobertNAtl).
UPDATE, 5/1: Et tu, Michael Kinsley. Also (but somewhat less of a surprise) Charles Krauthammer.