The New York Review of Books yesterday admitted the obvious in point #1 above: our president was a criminal. But Danner and others suggest that perhaps that's not enough, that we must first persuade a majority of Americans to oppose torture before action can be taken to seriously deter its future use. As I've already noted, this misses the fact that a majority of Americans want action now. But it is also a strangely selective transformation of our Constitutional republic into a direct democracy. A majority of Americans disapprove of our punitive system for drug use, but the prosecutions continue. A majority of Americans want an end to corporate tax loopholes, but the holes go right on looping. A majority of Americans think taxes are too high on working people, yet the tax bills keep coming. A majority of Americans want a higher minimum wage, but they can't get employers to pay it. A majority of Americans want habeas corpus maintained for everyone, but it isn't. Almost all Americans want higher auto fuel efficiency standards, but gas guzzlers keep coughing out black smoke. And so on. Why is it that when very important people's crimes are involved, we suddenly throw out laws and institute direct democracy (and then ignore the will of the people to boot)?
Enforcement of the law is not legally an option, and is required by treaty obligations. Attorney General Eric Holder effectively admitted awareness of the crimes at his confirmation hearing. Not to do so would have brought into question whether he'd been conscious the last several years. And yet his loyalty is clearly to Obama, not the law.
The Detainee Treatment Act and Military Commissions Act do not provide an excuse. Article VI of our Constitution makes treaties we ratify the supreme law of the land. Torture cannot be legalized and torturers cannot be immunized. Even assuming such things to be possible, these legislative attempts at immunity left holes, as Larry Velvel has pointed out, including for cases in which the victims were citizens, and cases in which the victims are not "enemy combatants." Many victims were never determined to be "enemy combatants," a court could easily throw out the term as legally meaningless, and Obama's administration has ceased using it (even while continuing the policies of detention and rendition).
Keeping secret agencies secret is not an excuse. Holder could create a prosecutor for torture by the military if he wanted to let the CIA off. Or he could target Bush, Cheney, and other top officials, leaving the underlings alone. But the secrecy of government operations is what facilitates criminal behavior, and therefore makes a lousy excuse for not punishing it.
In June 2008, 56 Democratic Congress members, led by Congressman John Conyers, wrote to Attorney General Mukasey asking for a Special Prosecutor. Conyers and Congressman Jerrold Nadler wrote to Mukasey again in December 2008. Nadler said weeks ago that he was drafting a new letter. Just as with Holder, Congress members tend to obey people, not laws or moral requirements. Nadler is unlikely to act without Conyers. Conyers is unlikely to act without Nancy Pelosi. And Pelosi shares blame because she and a handful of other top Congress members were privately told to some extent about the torture early on and kept silent. Pelosi's comments in the media suggest that she would prefer prosecutions to public hearings, but there is no doubt that her first choice would be neither, and as long as Democrats join Republicans in opposing calls by Conyers and Senator Patrick Leahy to create "truth commissions," and as long as powerful members of government all refrain from asking Holder to enforce the law, the option of doing nothing will remain available.
The Senate Intelligence Committee is holding secret hearings, or claiming to. But the value of that may be nil, and the point may be to weaken the push for a commission by the Senate Judiciary Committee or to assert jurisdiction over CIA materials that the Judiciary Committee could conceivably make public. Meanwhile, the proposals by the two Judiciary Committee chairs (Leahy and Conyers) appear counterproductive unless usable as tools for scaring up support for prosecutions instead. Investigations substituted for impeachment for two full years. Actually holding a "truth and reconciliation" commission as a substitute for prosecution would be counterproductive, as argued by Jonathan Turley, Peter Dyer, David Swanson, Bob Fertik, and Martin Garbus. The Justice Department itself has argued for "state secrets" blocks on prosecutions on the grounds that commissions can substitute for enforcing laws. They cannot. And they are unlikely to reveal as much information as are whistleblowers and the occasional journalists who do their jobs.
The truth that I think we should all insist upon is that Bush and Cheney committed serious crimes and have yet to be held accountable, and that we risk a slide into presidential dictatorship if we allow our nation to become reconciled to that.
There are several easy steps anyone can take to correct this situation.
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