In the wake of the Senate report on torture by the CIA (and its contractors - leave it to we Americans to privatize our atrocities), there hasn't been a whole lot of ink spilled on what should be done to those who engaged in illegal behavior. Generally that means prosecution, but should it? There are at least a couple of arguments that it shouldn't, even if the folks are guilty as sin.
The first, and more persuasive argument, was set out by Anthony Romero, head of the ACLU* in the New York Times the day the report was released. Although the ACLU has been in the forefront of trying to get all the details of our torture programs out in the open, he argues against prosecuting those involved (up to and including Bush, Cheney, and Rumsfeld). It's not a matter of giving up - it's a more clever gambit:
with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.
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Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.
Problem is, I don't think pardons really work that way. For one thing, I don't think one needs to formally "accept" a pardon for it to become effective, much less do so with conditions attached. For another, I don't think accepting a pardon would concede that the conduct at issue was a crime.
In fact, just the opposite could be true. I might take a pardon precisely because I think my conduct wasn't criminal, in order to head off politically-motivated prosecutions in the future. It would be no different than the West Memphis Three agreeing to enter an Alford plea to a lesser charge in order to be released from prison (and death row, for one guy), even though they maintain they're innocent.
So, while Romero gets some credit for creative thinking, I don't think handing out pardons would get him where he wants to go.
Eric Posner, on the other hand (writing over at Slate), has a much more disturbing take. He argues that there should be no prosecutions because, well, in essence, politicians are untouchable:
But Obama’s best argument for letting matters rest is the principle against criminalizing politics. This is the idea that you don’t try to gain political advantage by prosecuting political opponents—as governments around the world do when authoritarian leaders seek to subvert democratic institutions. Of course, if a Republican senator takes bribes or murders his valet, the government should prosecute him. But those cases involve criminal activity that is unrelated to the public interest. When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.
Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.
The full impact of Posner's reasoning is that no politician could ever be held accountable for a crime he or she commits, aside from something like garden-variety murder. Crimes committed in the service of a political office can be committed with impunity, because of the danger of political justice. I certainly agree that a series of bilateral criminal investigations done only for political motives would be bad for the country (although, honestly, how much worse?). But that doesn't mean winning an election means immunity from wrongdoing just to avoid that fate. Surely there's a line - doesn't sanctioning and carrying out a regime of torture that includes acts previously prosecuted as war crimes by this very country cross it?
One thing that both Romero and Posner say, and that I agree with completely, is that no prosecutions will actually happen. it's naive to think otherwise. That doesn't mean we have to shrug and accept it or, much worse, justify it.
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