Mr. Obama, who has been saying that the nation should look ahead rather than focusing on the past, said he is “not suggesting” that a commission be established.
But in response to questions from reporters in the Oval Office, he said, “if and when there needs to be a further accounting,” he hoped that Congress would examine ways to obtain one “in a bipartisan fashion,” from people who are independent and therefore can build credibility with the public.
I’d like to say this is fundamentally a dodge. It is a dodge — he wants to look ahead, not back, he’s not suggesting, he’s leaving doors open… it is a dodge, and frankly a contemptible one.
But fundamentally it is not a dodge. Fundamentally it is something much more horrible. It is the process by which the United States takes on a practice associated with tyrannies and, far from being an endorsement of the rule of law, elevates the assumption to power to the ability to punish the previous regime for “incorrect” — and hence “criminal” — policies.
It is no different from the argument about the supposedly inevitable impeachment of ex-President Bush, also based on supposed crimes arising from torture. As I wrote on a private list, made up mainly of attorneys, discussing that topic (adapted here), there is a tendency among certain people, and in particular those attracted to a certain pole in political debate, to regard their political choices or philosophical conclusions as the sole “moral” choice. In fact, (a) criminalization of political disagreement, (2) the use of penal power to punish players in the previous regime, and (3) the adaptation of legislative bodies as proxies to loose the necessary political “justice” when the traditional judicial organs refuse to comply, have historically been popular options for playing out this partisan outrage and sating the desire for “moral” vindication on the politically deviant.
Just not in this country.
Now, torture — i.e., the question of whether or not the use of torture was ordered by the President of the United States — is indeed the issue regarding which reasonable people can disagree, though I am less sure that reasonably well informed men and women can agree whether it is ever appropriate for a chief executive, much less a commander in chief in times of war, to be amenable to criminal prosecution even for actions that are either violations of U.S. law, or even more so of international law.
This is such a serious category of question that many perfectly moral legal scholars quite horrified by the horrors of the Third Reich had serious questions about the legality — a hard word even to pin down here — even of the Nuremberg Trials. But most of recognize an outer bound of what civilization will tolerate, and we prefer that our intolerance of inhumanity take as humane-seeming a form as we can give it, I guess.
If we are so clear on that question now, however, it would appear that almost every U.S. President in our lifetimes is probably amenable at least to an ham-sandwich-level of probable cause for prosecution; and then why not let the jury be the decider of the facts? After all, Truman’s bombing of Hiroshima and Nagasaki is arguably every bit a violation of the canons of international law as those being suggested to apply to GWB. Moving to more modern times, certainly most members of the world community, if we are to apply the “global test,” would testify quite sincerely to their belief that Bill Clinton, in order to distract the world from his dalliance with a sultry Zionist agent, knowingly destroyed a perfectly innocent aspirin factory for foreign persons of not-so-chalky-miens. War criminals both of them, and of course Nixon and Johnson too, and what with all the victims being otherly-pixilated they are probably criminals against humanity, and genociders, too.
Is this so obviously over the top? Less dramatically, it can hardly be doubted that virtually every chief executive in our times except perhaps the impotent Jimmy Carter could be credibly accused of a raft of extralegal — that means illegal, right? — strategies, tactics and means in the pursuit of what they perceived as national security goals, including the assassinations of foreign leaders, interventions in other countries without the permission of the United Nations, unauthorized shipments of arms in violation of neutrality legislation (who are we to say Churchill is right and Hitler is wrong?) and all sorts of “wet operations” by intelligence agencies, and so on.
And, again, all this is raised without even piercing the thick shell around the loaded word “torture,” or even the armor surrounding the degree of discretion to be afforded in particular to the constitutionally empowered commander in chief of military forces during a time of war.
Does my argument prove too much? Yes, of course, because arguably I could deflect almost any demand for the prosecution of a lawless former commander in chief with these arguments. But my point is that this problem of logic, consistency and expediency cuts both ways.
In the end, it is a generalized moral outrage, and a political anger that, while heartfelt, cannot possibly substitute for judicious application of the law, that lies at the root of any such indictment.
It’s the same thing with prosecuting mere “functionaries” and officers, really. They do what the Chief Executive (if they’re civilians) or the Commander in Chief (if they’re uniformed) tells them to do. In this case, they were told to execute a policy whose supposed lawlessness is — in reality — completely beside the point.
And what is the point?
Political revenge, pure and simple.
And despite what I continue to believe are his much better moral instincts, President Obama does not seem to be man enough, nor far enough removed from his political and legislative umbilical cord, to close the door to it.
Who knows who will come to regret it if he ultimately does not?
Cross-posted on Likelihood of Success, Ron Coleman’s pretty good blog.