Righteous Dahlia

Writing in Newsweek, Fareed Zakaria remarked that, in our current worldwide economic crisis, we are living history: are living through a seismic shift that will permanently alter many of the conditions of life that we’ve taken for granted. TNR’s Michael Crowley responded: gee, what about 9/11? Wasn’t that a momentous historical event, huh, Fareed? Granted, these were throwaway remarks, but Crowley’s response was small-minded. Sure, 9/11 was a major shock to many classes of Americans, with a terrible ricochet effect in Iraq and Afghanistan and elsewhere. But many people around the world were untouched by 9/11. The loss of innocent life was terrible, but not more terrible than terrorist events (some state-sponsored) in the Balkans or East Africa or other parts of the world in recent years. Meanwhile, the global financial downturn will touch just about every human being on the planet.

9/11 didn’t change everything, as some Americans have said. It was just a major wake-up call, signaling the end of American exceptionalism. As the world gets smaller, perhaps even flatter, the destinies of nations become more intertwined, more similar. None of us is that much safer than the rest. Americans' sense of ourselves as a chosen people, blessed by divine providence, or simply protected by power and geographic isolation, was brought crashing down. Tragically, in the wake of this disillusionment, we squandered our highest claim to being exceptional: our faith in inalienable human rights and the rule of law.

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I want to thank Dahlia Lithwick for this tightly-argued, righteously angry column about the prospects of investigating and punishing the worst abuses of the U.S.’s so-called War on Terror.

I was growing resigned to the thought that, for the sake of partisan comity, the incoming Obama administration would not aggressively prosecute cases of torture and other war crimes by Bush Administration officials. Silly me. The voices of civility and seriousness and jaded moral flexibility have led down the wrong path over and over again, and the same voices haven’t suddenly become wiser just because Barack won the election.

Many liberal commentators, thinking perhaps of South Africa’s Truth and Reconciliation process after the end of apartheid rule, have argued there is a trade-off between truth-telling and legal remedies. Some propose a truth commission offering legal immunity in exchange for testimony, and Obama's leaky transition team have telegraphed some sympathy for this approach.

Lithwick demolishes this supposed trade-off.

…I just cannot bring myself to believe that the full story will ever be told to our collective satisfaction. Even if every living American were someday to purchase and read the truth commission's collectively agreed-on bipartisan narrative, weaving together John Yoo's best intentions and Khalid Sheikh Mohammed's torment on the water board, sweeping national reconciliation will elude us.

This passage breaks my heart, but it’s so true. Who can place any real hope in the charade of a bipartisan commission? In this country, they are invariably exercises in ass-covering, with an end product that both parties can interpret to their liking. Hawks and Doves, Idealists and Realists: call the two sides what you will, it's not a dispute over facts that is the source of their differing views.

…[W]e already know the truth of what happened… We may not have every memo, and we may not be able to name every name. But do truth commissions alone ever reveal the full story? If we decline to hold lawbreakers to account, we may find out a whole lot of facts and arrive at no truth at all. Is the truth that if the president orders it, it isn't illegal? Or is the truth that good people do bad things in wartime, but that's OK? Is the truth that if we torture strange men with strange names, it's not lawbreaking? What legal precedent will this big bipartisan narrative set for the next president with a hankering for dunking prisoners?

…It seems that after 9/11, the solution to the problem of too much law was to simply do away with the stuff. And the solution to the lawlessness that followed 9/11? Do away with any legal consequences for the perpetrators. If there exists a more perverse method of restoring the rule of law in America than announcing that legal instruments are inadequate to address them, I can't imagine it.

…Nobody is suggesting that those who authorized torture and wiretapping were sadists or brutes. But they did a lot worse than mix stripes and plaids. They broke the law. They violated domestic and international laws, and they committed war crimes. They did so deliberately and with the "cover" of cynically bad legal memoranda. And those who have been entrusted as the nation's top law enforcers now claim that public disapproval is punishment enough.

…[As we try to imagine] a perfect truth commission or a perfect congressional inquiry (done by a perfect Congress that had suddenly grown a perfect spine),

(Bullseye, Dahlia. Are we going to leave this to Harry Reid and Joe Lieberman?)

it occurs to me yet again that we already have a pretty perfect system for investigating terrible wrongdoing and punishing wrongdoers. And we call it the justice system for a reason. For eight years we've been told, time and again, that the U.S. courts just aren't good enough to try terrorists, and that they aren't smart enough to monitor wiretapping, and that they aren't capable of keeping state secrets. Anyone who believes they are also not good enough to investigate government lawbreaking might reasonably be asked what's changed.

Not that anybody asked me, but I would suggest that sadists and brutes were making policy with respect to torture and eavesdropping. We persisted for so long in inhumane interrogation methods that were plainly illegal, and plainly ineffective at getting accurate evidence, that the only rationales are (1) the pursuit of brutal pre-ordained "intelligence findings," or (2) the fact that somebody or -bodies liked the way it felt, being an all-powerful ruthless inquisitor. But we have such a terrible time in our culture separating the criminal from the crime. We can accept that a leering jarhead holding a dog leash is a torturer. We have trouble accepting that a man in a Savile Row suit might be one as well.

Let's face it. No one should expect Bush, Cheney, and Rumsfeld being handed over to officials in the Hague, however richly they deserve that fate, or being dragged into an American court. The GOP obviously wouldn’t stand for it, and most likely the public wouldn’t stand for it. But take someone like John Yoo. He’s not a household name. Yet he’s the author of the egregious torture memos, the fabricated fig leaf that the Bush White House used to get away with their sadistic interrogation regime. His name is mud in liberal legal circles. But Yoo is a young man, a professor in good standing at a leading law school, and I find it disturbingly easy to imagine in 10 to 20 years, when the political carousel spins around again, hearing John Yoo and Supreme Court in the same sentence.

The guys at the very top, Cabinet-level men, shielded from legal harm by their visibility, are finished in public life, permanently tarred by the Bush record of failure and dishonor. We can be relieved to that extent. But some of their lieutenants could do damage for years to come. The Obama Justice Department can’t throw up its hands in the cases of people like Yoo and David Addington. It needs to state for the public record that John Yoo implicated the people of the United States in crimes against humanity. Dubya himself is one thing. If Republicans want to argue that John Yoo is above the Geneva Conventions, well, bring it on.