Crocker on Why We Must Prosecute

Words of wisdom from Tommy Crocker at The Faculty Lounge:

Comments today by Gen. Michael Hayden make clear a further reason why the Obama Administration should name a special prosecutor to investigate potential war crimes in light of everything we know, and have recently learned, about CIA interrogations of “high value al Qaeda detainees.”  Gen. Hayden has played a vocal role in arguing against the release of additional Department of Justice memos regarding the legality of certain “enhanced interrogation techniques” (i.e., torture).  Today he commented as follows as reported in the NY Times:  “It describes the box within which Americans will not go beyond.  To me, that’s very useful for our enemies, even if, as a policy matter, this president at this time had decided not to use one, any, or all of those techniques.”  Without prosecutions, the very real possibility that the next Administration will revert to these practices remains.  To Gen. Hayden these memos reveal “policy matter[s],” not legal ones.  The Times also reports Sen. Ensign as commenting that “The harm [in releasing the memos] is that if we ever return to those policies, one is they can train against them now.”

Without prosecutions, torture becomes a policy preference, not a matter of domestic and international law.  The next Administration’s aspiring Judge Jay Bybee will be free to issue new memos reading statutory, treaty, and constitutional restraints on practices that can only reasonably be described as torture out of the law books (on calls for Jay Bybee’s impeachment see here and here).  Without prosecutions, our laws become merely “the box within which Americans will not go beyond” as Gen. Hayden put it.  Gen. Hayden’s argument would make our Constitution, laws, and traditions of respecting the “opinions of mankind” (in the Declaration of Independence’s language) troublesome restraints that will only be useful to our enemies.  Today’s comments suggest that more is at stake than the revelation of these memos.  Gen. Hayden and others are laying the groundwork for returning to these “policies” at the next available opportunity.

Tommy’s comment lays bare the utter folly of Obama’s defense of refusing to prosecute the CIA interrogators who tortured — that “[t]his is a time for reflection, not retribution,” and that, having been through “a dark and painful chapter in our history… nothing will be gained by spending our time and energy laying blame for the past.”   The sad truth is that the only thing many conservatives see as dark and painful about the recent past is that America’s torture regime was revealed to the world, undermining its “effectiveness.”  These people do not believe that Bybee, Yoo, Bradbury, and the CIA interrogators did anything wrong.  These people do not believe that waterboarding someone 183 times is torture.  These people do not believe that there should be limits on what the CIA can do to detainees to extract information from them.  These people are simply biding their time, waiting for a future Republican administration that will “return to those policies,” to quote the admirably forthright Sen. Ensign.

These people reject the “core values” that Obama lauds and that make America great.  No amount of calm reflection will convince them that torture is wrong.  They cannot be rehabilitated — only deterred.  And the only way to deter them is to prosecute those who engaged in the torture they valorize.  Anything short of that and the Obama administration will be a temporary hiatus from torture — the transient policy preference, in Gen. Hayden’s words, of “this president at this time” — not the vehicle for ending torture once and for all.