Michael Dorf argues that President Obama should pardon those who approved and fashioned the policy of torture as well as those who employed it. He does not really point a finger at those who sanctioned the policy: Cheney, Rumsfeld, and Bush, as well as many others.
Michael’s argument is a well-traveled one:
Prosecution of political opponents threatens to raise the stakes of politics … of democracy. Lengthy trials of Bush Administration officials for authorizing torture would inevitably be perceived as partisan, and would likely lead to a further cycle of recriminations.
In short, we cannot allow politics to become too bitter. Hence, there is a tacit agreement between the political parties–like tacit agreements between two groups of mobsters. Occasionally, someone will be killed (prosecuted), but the killings (prosecutions) must not get out of control. We would see nothing but flurries of prosecutions as soon as one party gained power.
The most direct counter to Michael’s argument is that more than just Bush appointees are to blame. We have Congressional Intelligence Committees–comprising both Democrats and Republicans, to say nothing of military commanders. If an elected Senator or Congressman knew and had the responsibility for oversight, are not they, too, culpable?
Michael focuses on the careers of the lawyers involved:
Still, much of the publicity itself has been harmful to the careers of some of the Bush lawyers. Alberto Gonzales has had difficulty finding a job, a truly remarkable predicament for a former U.S. Attorney General, even in a severe recession. John Yoo finds himself a virtual pariah in legal academia. Judge Jay Bybee hears repeated calls for his impeachment. And none of the Bush officials involved in detainee abuse is likely to use his passport again.
Will Rumsfeld use his passport? Passports? Careers? Michael is a lawyer, one I respect highly. But he sees the issue in terms of his profession, of his class. Those who are already doing or have done time for torture–or those tortured–have suffered far more than the loss of a passport or a career.
I find Michael’s argument a bit meandering, focusing more on the lawyers involved than on those in the chain of command, from Bush down through senators and congressmen.
The crux of his argument is below:
By pardoning, rather than merely not prosecuting, the architects of and participants in the Bush policy of detainee abuse, the Obama Administration could send a signal that offenses were, in fact, committed. Of course, pardons will not satisfy those who believe–with considerable justification–that prosecutions would be the better course. But pardons would formalize what appears to be the best explanation for the potential Obama policy of simultaneously repudiating the conduct and seeking to reconcile the country.
He does not really say if prosecutions should precede the pardons; nor does he address the chain of command that was involved in the policy. At the very least, I would like to see prosecutions precede pardons. If Obama is to pardon those culpable, then he should also make a public apology, on behalf of the nation, to all those who were tortured. Whether they were guilty or not is irrelevant. He should pardon also those now in jail for torture.
Michael does not address the problem of those still in jail serving lengthy jail sentences for detainee abuse, sexual, physical, and psychological–or those like Lynndie England, for example, who served a lengthy jail sentence. . If she and others like her are not pardoned, then we know there is one law for those in power; another law for those who are powerless.
Setting all this aside…and setting aside the culpability of Bush lawyers, Bush, Cheney, Rumsfeld, et al, I would like to return to that other group of participants: Those that had oversight and knew, i.e., the Senate and Congressional Intelligence Committee members, both Republican and Democratic. How do we shame them? How do we tell everyone–not just the little people like Lynndie–that there is a price to pay for not following the law, not enforcing it, not standing up in its defense if you are responsible for its defense?
If you are responsible for upholding law, are you, too, not culpable if the law is not upheld? Must we look the other way if you are too big or too important to punish?
Why has no one stood up, taken responsibility? How I would like to hear someone in that vast chain of command, stand willingly, and take responsibility. How I would admire such a person who said without being asked, “I failed my country and my office; I did not hold true to what it means to be an American.” Would Pelosi do this? Would Shelby? or any of the others? Are all, all bereft of honor?
Imagine how we would now respect any Committee member if he or she had openly rejected the policy when it was brought before the Committee, told us about it, and accepted the punishment that other senators or congressman would then have heaped upon them for being “treasonous,” for revealing important national security secrets. He or she would have then been disgraced, but disgraced with honor.
We seem to live in a country where systems are the only things that are flawed. Meanwhile Lynndie England served her time, punished by a system that is deeply flawed and profoundly biased. At some point, everyone–in any political party–has to understand that adherence to the law is primary.
Every senator congressman swears they he or she will defend the Constitution. That oath has to mean something.
To those who say that we have more important business to do, I reply, “Yes, we do have an economy in shambles. But self-serving power has run amuck for too long. Rarely is it ever brought before the bar. The torture scandal is simply another lock of the hydra.”
We watch, for example, the revolving lobby door spin ever faster. Even Bill Clinton has stepped into that door, an ex-president, husband of the Secretary of State. Where does it end?
We see greed take ever-deeper bites, passing laws like the Financial Modernization Act of 1999, the act that made possible many of the problems we now have. Those who were party to its passing still comfortably walk the halls of power. Which one of them has stood and taken responsibility? It is not a question of Democrat or Republican. That law was passed during the Clinton years.
Most citizens can understand torture; few have any idea of the FMA. But there is a link between the two. Citizens will complain about the lobby gravy chain; but few understand just how deeply it hurts us all, how profoundly it compromises the writing and passage of legislation. Citizens were shocked when bonuses where paid where TARP money landed; citizens do not understand how that money was passed among the recipients in order to clear credit default swaps.
As I pointed out in an earlier piece, there is a line connecting those who were tortured and we who were fleeced. Their fate, however, is far worse: They lost their sanity; we lost our wealth.
Dumb Private Lynndie England, who enjoyed romping through the sadistic ethos her superiors had fashioned, paid a heavy price. In going to Iraq, she was not only being patriotic but also trying to escape the poverty of her upbringing.
And what do we do now with those who were tortured beyond reason? What country would take them, trust them to act responsibly? Their rage must be beyond belief.
Meanwhile, Bush appointees cannot use their passports.