Reprinted from Reader Supported News
9/11 Memorial, New York City.
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ACLU director Anthony D. Romero -- some might say the lead attorney for the progressive movement -- authored a piece for The New York Times on the eve of the release of the Senate Intelligence Committee's report on torture titled "Pardon Bush and Those Who Tortured." It's a curious piece, at a baffling time.
Full disclosure: I am an ACLU member and a monthly contributor at $20 per month.
The logic that Mr. Romero applies is that issuing pardons "may be the only way to establish, once and for all, that torture is illegal." Mr. Romero takes great pains to establish that the ACLU has for years been active and diligent in "arguing for accountability," and that this is essentially a departure of necessity.
Mr. Romero is a good attorney and his argument, while novel, is certainly not without merit. The problem is that, in at least one critical regard, he now stands on the same slippery slope that John Yoo and Jay Bybee ventured onto while making legal preparations for the events chronicled in the Senate torture report to commence.
In arguing that "enhanced interrogation techniques" could be used by US agents and soldiers, Yoo and Bybee sought at a bare minimum to make actions that they admitted were illegal permissible. In doing so they granted a quasi-immunity that, however poorly constructed from a legal standpoint, proved an effective makeshift shield for "Bush and those who tortured."
Mr. Romero ultimately drinks from the same cup. In saying that pardoning the torturers confirms their guilt, Romero, like Yoo and Bybee, admits illegality but accepts that there will be no consequence. The trade-off is that the illegality will be confirmed. Not established, of course -- the Geneva Conventions did that 65 years ago.
Bush and the torturers knew full well that they were acting illegally. As did everyone who knew what they were doing then, or anyone becoming aware now. The illegality is well established, and well understood.
When self-styled American freedom liberator Eric Frein shot and killed Pennsylvania state trooper Bryon Dickson, authorities there asserted that Frein's attack was not just upon peace officers, but upon the rule of law itself.
That's the point. If we legitimize torture by pardoning it, we normalize it and the affront it represents to the rule of law. That is tantamount to lawlessness itself -- the abyss we now look into.
The time has come to prosecute.
The same must be said in the cases of Ferguson police officer Darren Wilson and NYPD officer Daniel Panteleo. The grand juries in both cases were manipulated by the prosecutors to produce acquittals rather than indictments.
By failing to act, the Department of Justice would be further institutionalizing the violent actions that took the lives of Michael Brown and Eric Garner. As it stands today it is all but impossible to indict a police officer for any act of violence. They enjoy nearly absolute immunity.
If lawless and violent conduct by American police is to be confronted through the rule of law, then federal authorities are going to have to do it. The local justice systems have clearly demonstrated that they cannot or will not.
While we are still a nation of laws, if we are -- we must prosecute the lawless, whoever they may be. Anything less invites disaster.