I write this knowing that such prosecutions will be a catastrophe for the country. They will inflame left-right anger to a level we haven't seen since we pulled our troops out of Vietnam. They will derail progress on health care reform, alternative energy promotion, and just about anything else the government might want to do. They may well lead to rioting and violence.
But I think we should do it anyway. I have come to this decision mainly by reading the arguments of people opposed to prosecutions. Those opponents seem to have flat-out forgotten what it means to have laws. Their view is that whether we ought to torture captured terrorists is a political question, to be decided by our politicians. They simply do not recognize that the law has anything to do with how people comport themselves in office.
Here is David Broder, in the Washington Post:
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.This argument makes sense only if you believe that laws mean nothing. If the laws mean anything at all, then what Bush and his cohort did was wrong, and they ought to be prosecuted for it. Broder seems to agree with Bush's view of the matter, when he famously remarked that he had had his "accountability moment" in the 2004 election. Having won, he was free, even required, to do whatever he thought was right, the law be damned.
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.
Here is Newsweek editor Jon Meacham:
The answer depends, at least in part, on how we turn back the page. Is a Watergate- or Iran-contra-style congressional probe the way to go? No, for public hearings encourage—demand, really—dramatic plays for attention from lawmakers. Such a stage would lead to the expression of extreme views.How nice to hear that the President is not "always" above the law! I wonder if Mr. Meacham could explain to those of us who are not insiders when, exactly, the President is above the law and when he is not? What is so horrible about "extreme views" that we should ignore serious crimes to avoid hearing them aired in public? It seems to me that quite a few were aired during the impeachment of Bill Clinton, and we survived that. And, most importantly why would prosecuting political leaders who broke the law, flouted the constitution and tossed our treaty obligations in the trash set a "bad precedent"?
So we do not want that. Nor, I think, do we want to open criminal investigations into those who participated in brutal interrogation methods. And to pursue criminal charges against officials at the highest levels—including the former president and the former vice president—would set a terrible precedent. (The presidential historian Michael Beschloss suggests that the closest parallel to a president authorizing a probe of his predecessor can be found in the 1920s, when Calvin Coolidge appointed special prosecutors to investigate Warren Harding's role in the Teapot Dome scandal.) That is not to say presidents and vice presidents are always above the law; there could be instances in which such a prosecution is appropriate, but based on what we know, this is not such a case.
The attitude that politics is beyond law has gotten so firmly entrenched in Washington that only something drastic can shake our establishment out of its contempt. So, let the trials go forward.
Not that they will. But if they do, they will have my support.