The executive orders are so far very subtle but very smart. Scott Horton's analysis is the most telling. Some will be disappointed that Obama is not about to condemn the out-going war crimes of Bush, Cheney et al. in ringing terms. But the election did that. And as the era of the dark side recedes a little, my sense of the looming reality is as follows. The men who ordered a man tied to a chair, doused in water, and chilled to hypothermia so intense he had to be rushed to emergency medical care, the men who presided over at least two dozen and at most a hundred prisoners tortured to death, the men who ordered an American servicewoman to smear fake menstrual blood over a Muslim's face in order to win a war against Jihadism, the men who ordered innocents stripped naked, sexually abused, terrified by dogs, or cast into darkness with no possibility of a future, and did all this in the name of the Constitution of the United States, the men who gave the signal in wartime that there were no limits to what could be done to prisoners of war and reaped a whirlwind of abuse and torture that will haunt American servicemembers for decades: these men will earn the judgment of history. It will be brutal.
We will need some formal and comprehensive record of all that happened, and the Congress will surely begin to move on that (and they should not exempt their own members from scrutiny either). And as specific allegations of torture emerge, the Justice Department will have no option but to prosecute. To ignore such charges is itself a dereliction of constitutional duty.
In the last two weeks, two very important things have happened that make that especially hard to avoid. The Bush administration's chief prosecutor at Gitmo, Susan Crawford, has herself conceded that torture did indeed take place in that camp, and specifically against Qahtani, the prisoner whose torture was personally monitored by Bush, Cheney and Rumsfeld, and whose torture log is in the public domain. An attorney general presented with clear evidence of torture engaged in by public officials has no choice but to prosecute - or to make a mockery of his office. It is absurd to ignore the men who have primary responsibility for the crime.
The second big thing is that the perpetrators of war crimes are no longer in power. I predict that as fear of administrative reprisal ebbs, more and more whistle-blowers will come forward with evidence of what was done under Bush and Cheney, in defiance of domestic and international law. That Bush and Cheney got hacks to write absurd legal memos saying that, in Bush's own words, "whatever we wanted to do" was legal will mean nothing. Yoo and Bybee are the kind of useful, amoral sycophants and apparatchiks that always emerge and flourish in lawless states eager to put up a facade of legalism to defend their power-grabs.
I do not believe in a witch-hunt in the CIA, whose many hard-working officers deserve support not censure. I do believe in holding responsible those high elected officials who broke the law and violated the Constitution in authorizing war crimes. It should take as much time as needed for a thorough accounting; it should be meticulously fair; it should be geared solely to ensure that the rule of law is no longer in question; and that only those truly responsible at the top of the chain of command are held liable. But if we do not hold these men to account, the precedent they set is alarming.
They have, after all, argued that the executive branch can do anything to anyone to defend the nation's security as defined and measured by that executive branch itself. They have argued that that power is permanent and not restricted to a discrete length of time. They have declared the Constitution to be entirely subject to the executive's will, checked only by a four year "moment of accountability". And they are unrepentant - even boastful of their actions. We cannot leave that precedent in place. Why? I know no better popular expression of the case than that made by Robert Bolt in this imagined conversation between Thomas More and the John Yoo of his day, William Roper:William Roper: So, now you give the Devil the benefit of law!Yes, I give prisoners of war, even the demons of al Qaeda, the benefit of the law. For my own safety's sake. And ours'.
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
There Will Be Trials
Sully said there would be Obama; and so it was. He now is saying there will be war crimes trials. Just sit tight. I happen to agree with Sully's hope. Though, it's just hope.