Back in January,
I encouraged everyone to read Tom Junod's piece from Esquire, "
What the Hell Just Happened? A Look Back at the Last Eight Years". In it, he called us all to take our share of the blame for the Bush torture policies. Now, in Slate, Jacob Weisberg uses our collective guilt as a rationale for not going after criminal prosecutions of the people responsible. In his piece "
All the President's Accomplices: How the country acquiesced to Bush's torture policy" he essentially argues that because we all knew the gist of what was going on, and because we allowed it (and even re-elected the people doing it), there's no point in going after the people who wrote the memos, gave the orders, or carried out the torture. After all, we would be going after more than 51% of the population, right? Instead, he says we should have a South African style truth and reconciliation commission and move on.
I completely disagree.
This is a representative democracy, not a direct one. We elect people to enact the popular will, but we also choose people who should know when to stop in those cases where the majority of people are simply wrong. The day of 9/11 I was teaching at a high school. One of the kids in the class said, "We should just nuke Baghdad." I was appalled. I convinced him that killing millions of innocent people when we didn't even know who was responsible was simply wrong. Then, when I tried to share how horrified I was by the student's reaction with another teacher, she basically agreed with him. Now we know that there were no Iraqis responsible for 9/11, but what if this teacher and this student had been expressing the popular will? Would we have caused the unnecessary deaths of hundreds of thousands of innocent Iraqis because we were reacting out of ignorance and fear?
Oh, wait, we did that.
I understand that a full blown prosecution could create a myriad of problems. It will tie up the Obama administration in accusations of partisan recrimination, and they will lose some political capital necessary to do good work. It will redirect the national focus from more pressing issues. It could create paralysis for future legal and political actors who are afraid of recriminations from future administrations. All of these are real fears. They can be minimized in some ways. The President can separate himself as much as possible from an independent prosecutor. The trials could be held slowly, deliberately, and with as little flashiness as possible, to bore the hell out of the American public so that they keep their attention focused on more immediate concerns. And as for paralyzing future leaders, that moment's hesitation might not be a bad thing at all. Reagrdless, these concerns are outweighed, at least in my mind, but a much greater danger that would come from inaction on the issue of torture.
If we don't hold anyone accountable, we will have created a nightmarish precedence: the ultimate Nuremberg defense for the most vile, evil politicians of the future. They will be able to say, in coming times of crisis, that the people were scared and wanted them to ignore any legal and moral boundary in order to be made to feel safe, so they did what they thought was right. They will look back into history and say, "Look what people have gotten away with in the past. Why should we be held to a different standard?" In fact, Weisberg does this same thing for them. He brings up examples of what he calls "American history's hall of shame," including "the Alien and Sedition Acts, Japanese internment during World War II, and the excesses of the McCarthy era." What do those have in common? Not only were they shameful, but no one was held accountable. In the American hall of shame, each shiny brass placard reads, "The perpetrators got off scott-free."
Whatever the negative consequences of criminal prosecutions for those responsible for illegal torture of detainees may be, they are outweighed by the power said prosecutions would hold in preventing future illegal and immoral acts in times of crisis. This time it's torture. The next time it could be a nuclear bomb dropped on Baghdad.
