Prosecution on American War Criminals?

Should there be a bi-partisan commission to investigate the authorization of torture by the previous administration? Should those who authorized and directed that practice be ostracized, condemned, and disgraced?

Certainly, yes to both questions.

Should the drafters of memoranda giving dubious legal arguments that would justify "water boarding" and similar extreme intensive interrogation techniques be criminally prosecuted? Should those elected and appointed government officials who defend the techniques if torture, including the former Vice President, be prosecuted?

Two or three weeks ago, I would have urged prosecution, perhaps followed by a Presidential pardon. This would, I believe, allow the United States to face up to its immoral and utterly illegal actions. This would, for once and for all, repudiate the Nixonian doctrine that stated the actions of a President could not be illegal. (Of course, this only applied to Republican presidents; Bill Clinton had no such immunity.) David Bromwich, in The Huffington Post, writes forcefully why prosecution is necessary. To refuse that action, he suggests, gives the impression that, somehow, acts of torture by U.S. personnel is somehow justified and excused.

I disagree and acknowledge that the rethinking gives me pause.

I have changed my mind and now concur with President Obama. The price we would pay for criminally prosecuting the highest members of the Bush administration is too great and to put attorneys in jail for giving lousy advice is inappropriate.

Garrison Keillor writes,

What's needed here is not punishment, but truth. When I hear Democrats talk about "holding them responsible," I smell the sour righteousness of the victorious lording it over the vanquished. The guy they really want to put on trial is the old brush-cutter of Crawford, or else the old grouse hunter of Wyoming. They're the guys who signed off on those memos authorizing torture. The buck stopped at their desks.

Holding thBush administration responsible for torture would give us some high political drama that would feed the media goat for the next two years and also sap the body politic. The health care system would go unfixed, schools would crumble, and basic public services would deteriorate, all so that the left could have at the right.

There is another price we would pay: the non-recognition of a tradition that has stood our nation well since the earliest days. Often a changed of administration is a repudiation of firmly held positions. Often there is an implicit determination that the past administration had acted improperly - if not literally illegally. We have a tradition of peaceful and cooperative transitions between parties and getting into a habit of prosecution and retribution would cost our nation.

President Obama has repudiated and condemned torture, including but not limited to water boarding. There must be a public, open and transparent investigation of who approved the acts in issue; if I could guess at this time, I would lay the blame at Dick Chaney's door and I would blame President Bush for being disengaged and blissfully unaware, perhaps intentionally so.

There is a better reason to forgo criminal prosecution.

We, as Americans, were fully aware that our agencies were engaged in torturing those the Bush Administration deemed to be "enemy combatants" and the "deeming" was very expansive, indeed. Jacob Weisberg, in a thoughtful and persuasive column in Slate compared the forced resettlement of Japanese-Americans following the attack on Pearl Harbor with the Bush torture policy.

While the sending detainees to other countries to be tortured and water boarding were ostensibly secret, both Congress and the informed public were fully aware of the practices, raising no real objection. Criminal prosecution would not address the most pressing issue: not just who in the Administration did what and when, but we were collectively complicit in their decisions.

Mr. Weisberg points out that, following the September 11^th attacks, liberal and constitutionally aware individuals joined in the rush to allows and even encourage behavior they now decry. Jonathan Alter wrote in Newsweek that we should consider "transferring some suspects to our less squeamish allies." Alan Dershowitz, a leading proponent of civil rights and liberties, in calling for legitimizing torture through a system of judicial warrants. Wrote, "It is wise for American interrogators to employ whatever coercive methods work,"

And these were the liberal voices.

As was the case of the Japanese internment, no one, Congress, Judiciary, Press and the average person on the street, save but a very few, seriously objected to the United States acting contrary to our ideals. And that is my objection to criminal prosecution. It will be all too easy to through a few people in jail and refuse to acknowledge that we all are guilty.

On the other hand, the Bush apologists keep it up, their hatred of the usurper in the White House, that intellectual black guy, controlling their every thought, I, as Calvin Trillin points out, in The Nation, might change my mind again:

We're hearing every day from Cheney.
With language dripping with disdain, he
insists our policies aren't brainy:
No torture? Why, that's simply zany.
On days with sun and days quite rainy,
Pro-torture noise emits from Cheney.