I just can’t let David Broder’s column defending torture go. I have to revisit it. Broder starts off weakly:
If ever there were a time for President Obama to trust his instincts and stick to his guns, that time is now, when he is being pressured to change his mind about closing the books on the “torture” policies of the past.
Actually, we are not asking Obama to change his mind. We’re asking him to stay out of decisions that should by law be made by the independent Department of Justice. We had enough of political decision-making and pressure on the DOJ during the Bush administration. Broder might remember that Bush’s DOJ was basically gutted by resignations once it became clear that they had been firing prosecutors for being insufficiently political. If Broder needs a refresher he can read this Murray Waas piece on Dan Bogden, who served as the United States attorney from Nevada until he was sacked in 2006. Broder is asking Obama to act like a dictator and order his Attorney General around. That’s a step in the wrong direction.
Broder continues:
Obama, to his credit, has ended one of the darkest chapters of American history, when certain terrorist suspects were whisked off to secret prisons and subjected to waterboarding and other forms of painful coercion in hopes of extracting information about threats to the United States.
He was right to do this. But he was just as right to declare that there should be no prosecution of those who carried out what had been the policy of the United States government.
As the Christian Science Monitor and others have noted, the torture authorized in the OLC memos spread to Guantanamo, Afghanistan, and Iraq. In February 2006, Human Rights First released a report called Command’’s Responsibility:
Detainee Deaths in U.S. Custody in Iraq and Afghanistan (.pdf). David Broder can read the Executive Summary here. Among other things, it identifies eight people that were tortured to death, thirty-four cases of confirmed or suspected homicide, and eleven cases where there is suspicion that interrogation and detention conditions resulted in death. It’s over three years later now. Do these murders also constitute ‘U.S. policy’ for which no one should be held accountable? No investigations, right?
But even if we hadn’t killed dozens of people in our custody through abuse and neglect, we also have to face up to the fact that this torture wasn’t ordered only to find evidence of future terror attacks. According to the unanimously approved Senate Armed Services report on the treatment of detainees, torture was used to get information linking Saddam Hussein to the 9/11 attacks. Is it okay to start a war of choice based on coerced false testimony? That’s okay, Broder?
Broder goes on:
And he was right when he sent out his chief of staff, Rahm Emanuel, to declare that the same amnesty should apply to the lawyers and bureaucrats who devised and justified the Bush administration practices.
But now Obama is being lobbied by politicians and voters who want something more — the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps — or, at least, careers and reputations.
Here’s a test, Broder. What should be the penalty for a member of the Office of Legal Counsel if they make a ruling that the forcible rape of prisoners is permissible because it doesn’t cause organ failure or the threat of imminent death? At what point does legal reasoning become so implausible that it cannot be considered a mere difference of opinion and actually constitutes a crime? Until you can define where that point is and confirm that such a point actually exists, what do we have to talk about? Here’s another test, and it bears on your next point as well as your last. If someone broke into your home and murdered your family, would your desire for justice be less legitimate because you wanted a ‘scalp’? Isn’t that what this means?
Their argument is that without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.
You know, if that guy that murdered your family is not punished, he’ll probably murder another family. He’s crazy like that. But, because you have an unworthy desire for vengeance, we’re just gonna let him go. Do you even listen to yourself, Broder? Do you even understand the law?
The torture issue is much more serious [than the AIG bonuses], and Obama needs to take it on himself, as he started to do — not pass the buck to Attorney General Eric Holder, as he seemed to be suggesting in his later statements on the issue.
But the truth is exactly the opposite. Attorney General Eric Holder should not suffer any political pressure from the president or any member of his staff. That’s how it is supposed to work. Anything else is an abuse of office. But you don’t think a president can be limited in power, do you, Broder?
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.
You’re always a stickler for propriety, aren’t you? Do you think it is proper to pretend that the torture was limited to the few people covered in the OLC memos? Isn’t that the worst kind of bullshit? You know, the Final Solution was authorized at the end of a deliberate and well-debated conference by the proper authorities. I don’t see how the fact that the president, the Director of the CIA, and the Attorney General authorized torture that led to the deaths of dozens of people is exculpatory, but you have a different view of the world.