The calls for an independent prosecutor for Bush-era torture have become considerably louder in the last few weeks, but a new approach has recently been floated as well – and it makes an enormous amount of sense.
For more on pruning back executive power see Pruning Shears.
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During the Bush years it seemed as if the stifling of debate on torture caused a great tension to build, but that pent-up frustration has finally started to release. The last few weeks have seen a dizzying series of developments, starting with Mark Danner’s first article on torture at CIA dark sites. That, along with his subsequent publication of the International Committee for the Red Cross’ report on it, may have removed any remaining arguments against releasing the torture memos. So they were released, all hell broke loose, and we now may be in the early stages of a circular firing squad.
With details of the horrors we engaged in emerging it has become vital for anyone implicated to shift blame. Omertà has been violated, and it has started to look like the political equivalent of the paradox of thrift – actions that benefit individuals harm the larger group. It leads to exchanges like the one detailed here, where Nancy Pelosi claims that she was never told any of the torture methods the CIA briefed Congressional leaders on were actually going to be used (did she think it was a purely academic discussion?) and Porter Goss emphatically contradicts her.
The cascade of revelations has been somewhat disorienting, though. In addition to the sheer volume are the startling new sides of some familiar figures. Dick Cheney has become downright voluble, for example, and made the positively eye-popping request that additional torture documentation be released. Problem is, he has very little credibility left. His assertions are casually dismissed to scattered laughter, not regarded as the sober judgment of a master bureaucrat. Maybe that is the appropriate way to remember him, and for him to know he is thought of: An object of scorn and ridicule, not some kind of dark genius. He should be accountable for his actions, obviously – they were anything but trivial – but as a thinker maybe he is best remembered as a lightweight and a clown.
Perhaps he is talkative because details are emerging far differently than he imagined. Former federal prosecutor Elizabeth de la Vega is an extremely persuasive voice (via) for this new dynamic: Hold off prosecutions for now and let the revelations keep leaking. Why? Well, we need to have a public debate about torture; for as uncomfortable as it may be at times we need to go through the details and arrive at a firm consensus on whether or not to torture, and how to implement it if so. I will yet again invoke Jane Mayer’s “tricky legalisms adopted in classified memos” argument – This is the discussion the Bush administration should have started with the country around December 2001. Let’s have it now, better late than never. As de la Vega notes, a grand jury investigation would largely shut down the public debate.
Holding off on legal action also allows what she describes as an “irrefutable and cohesive factual narrative” to form, which would greatly assist any future investigation. She pointed out on Countdown that the Libby investigation was ultimately unsuccessful because it failed to get at the truth. Would using the same tool against the same people have a good chance at succeeding? Cheney appears to have conducted himself in a way that maximizes his insulation from exposure in just such a criminal investigation. In that sense launching one now gives him home court (har) advantage. What he did not seem to anticipate was a bunch of people blabbing to journalists to save their own skins in a highly irregular form of unsworn public testimony. Having the narrative assemble that way is something he probably never anticipated.
Why not let it continue for a while? Do not forswear investigations or prosecutions, just hold off for maybe a few more months. The system that we trusted in – both in Congress and in the courts – failed to deal with these issues while the principals were in office. Why go back to them in exactly the same way now? Letting everyone whisper to their preferred sources may produce a durable public opinion on torture and aid legal action down the road. At the beginning of last month I wrote strongly in favor of an independent prosecutor and against a Congressional “truth commission”, but de la Vega has persuaded me otherwise. Let everyone get their stories out there, then have Congress hold public hearings. Let their immediate self interest work against their collective long-term interest. Let human nature take its course. There will be plenty of time for criminal investigations after the dam has burst and revelations slow to a trickle.
