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Cheney's was the familiar above-the-law attitude, a reprise on his contemptuous "So?"—in this case meaning, "So what are you going to do about it?" With Cheney admitting to his key role in water boarding, Mukasey is no doubt relieved that during his confirmation hearing he obeyed White House instructions to stonewall all attempts to get him to concede what the whole world knows—that water boarding is torture.
Indeed, the law is not in question. Water boarding was wrong during the Spanish Inquisition and during the Spanish-American war in the Philippines. It was illegal during WW-II. Americans as well as Japanese have been convicted and severely punished for it.
Recklessness
For those, who despite the above prefer to give President Bush the benefit of the doubt regarding first-degree intent, should know that the third type of guilty intent, recklessness, also applies—in spades.
For example, Cheney's lawyer, David Addington, and then-White House Counsel Alberto Gonzales dissed the hapless former Gen. Colin Powell, who as secretary of state wrote to the White House in January 2002:
"A determination that Geneva does not apply could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries."
A pity Powell did not have the courage of his convictions, for he now has reason to be concerned about an eventual conviction of a different kind. Beneath the circumlocution quoted above is his clear appreciation that, if he did not fight against what was clearly in the cards, torture was likely to sully the Army and the nation to both of which he owed so much.
"Could introduce an element of uncertainty in the status of adversaries," writes Powell. Could introduce, say, reckless Russian roulette. In his interview with ABC, Cheney put the old law professor's hypothetical smoking gun right out there on the table.
Deterrence
A widespread lack of understanding regarding the purposes served by the criminal justice system—and the penal system—is a major obstacle to even entertaining the thought of prosecuting administration officials for torture. All too many pundits are claiming that the country should simply move on and just close the book on this painful chapter—and that to do otherwise would simply be to try to extract vengeance.
But it is not about vengeance. The key goal here is deterrence—the final and most important goal of our criminal justice and penal systems in such circumstances.
At this point, the emphasis needs to be on establishing the facts—not punishment. Priority must be given to determining how our country ended up torturing people. Just as Cheney has termed water boarding a "no brainer," it is equally a "no brainer" that we must focus now on his self-admitted role, as well as the revelations in the Senate report and other evidence that has come to light. An independent prosecutor like Patrick Fitzgerald would not need a lot of time to establish the facts.
Our country's values and the immorality of torture are important considerations. And the law, of course, is also key—or should be. Seldom have we seen it more cynically twisted and abused. But here is something else that must be thrust into public consciousness—the reality that, TV hero Jack Bauer's mythical exploits aside, torture never can be counted upon to yield reliable information.
THAT is the quintessential "no brainer." For, as the head of U.S. Army intelligence, Lt. Gen. John Kimmons, asserted on September 6, 2006: "No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that."
Stop Torture Now
Let us have no backsliding. Barack Obama must order an abrupt halt to torture, as he has promised—and preferably on January 20, right after he is sworn in as president. A timely report from an independent prosecutor would surely be helpful in buttressing and justifying that order.
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