Friday, May 1, 2009

Cooler heads might have prevailed

In 1945, President Truman appointed Supreme Court Justice Robert H. Jackson as the chief prosecutor for the planned tribunals to try accused Nazi war criminals:
The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

This Tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 17 more, to utilize international law to meet the greatest menace of our times-aggressive war. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which. leave no home in the world untouched. It is a cause of that magnitude that the United Nations will lay before Your Honors.

In the prisoners' dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it. Merely as individuals their fate is of little consequence to the world.

What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.


No charity can disguise the fact that the forces which these defendants represent, the forces that would advantage and delight in their acquittal, are the darkest and most sinister forces in society-dictatorship and oppression, malevolence and passion, militarism and lawlessness. By their fruits we best know them. Their acts have bathed the world in blood and set civilization back a century. They have subjected their European neighbors to every outrage and torture, every spoliation and deprivation that insolence, cruelty, and greed could inflict. They have brought the German people to the lowest pitch of wretchedness, from which they can entertain no hope of early deliverance. They have stirred hatreds and incited domestic violence on every continent. These are the things that stand in the dock shoulder to shoulder with these prisoners.

The real complaining party at your bar is Civilization. In all our countries it is still a struggling and imperfect thing. It does not plead that the United States, or any other country, has been blameless of the conditions which made the German people easy victims to the blandishments and intimidations of the Nazi conspirators.

But it points to the dreadful sequence of aggressions and crimes I have recited, it points to the weariness of flesh, the exhaustion of resources, and the destruction of all that was beautiful or useful in so much of the world, and to greater potentialities for destruction in the days to come. It is not necessary among the ruins of this ancient and beautiful city with untold members of its civilian inhabitants still buried in its rubble, to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have "leave to live by no man's leave, underneath the law."
Robert H. Jackson, Chief of Counsel for the United States, Nuremberg, Germany, November 21, 1945

To compare al-Qaeda directly to the Nazis is of course to give al-Qaeda far too much credit, but there is an obvious analogy to be made. Of all the reasons that the torture and other depredations of the Bush years should be investigated and prosecuted, perhaps one of the greatest and least-mentioned is this: in addition to losing our moral standing in the world, consider what the world has lost in terms of opportunities to bring organizations like al-Qaeda to light, to expose them for the cowards and liars that they are, and to begin the process of redressing the conditions so as to make such acts as the 9/11 attacks inconceivable to all humanity. I am not naive enough to think that war and terror can be stamped out solely through honesty, but the fundamental laws of human dignity and decency did not cease to function in September 2001. It is precisely the calm and measured tone of Justice Jackson that has been sorely missing for the past 7+ years. What if the knowledge gleaned from Khalid Sheikh Mohammed's (pre-torture) interrogation had been made known to the world in 2003 or 2004? What more could have been accomplished in stemming the tide of hatred and violence fomented by the bin Ladens of the world if we had kept our sights on them the whole time? We will never know, and that is a loss that should not go unredressed.

America either tortures people or it doesn't (updated)

Remember the debate over the torture issue? It was back before the fears of swine flu surfaced, so it's pretty ancient now...I think it was last Friday. Near as I can tell, the position of the old Bush guard (pun intended) is that we do not torture, but it doesn't matter anyway because it's not illegal to torture, which is not something we do, anyway. I'm pretty much sick and tired of the debate, but it is a debate that apparently must be had, because there are seemingly honest, intelligent people in this country who will say with a straight face that simulating drowning by covering a person's face and repeatedly dowsing them with water until they think they are on the verge of death is not torture, but "enhanced interrogation techniques," and that we shouldn't bother with any sort of investigations into the legality of such actions because...well, I guess it's because we have better things to do. Of course, Republicans are always complaining that government is too big, so perhaps we can just use some of the extra weight to conduct investigations and prosecutions, while the important and necessary parts of the government carry on. If the alleged wrongdoers didn't do anything wrong, then they've got nothing to hide, and what would be the harm in investigating, right? Right?

I can throw the quotes of Bushies back in their faces all day, and I'd love to do so, but here's the thing: to say that investigations and prosecutions of torture would "tear this country apart" is bullshit, plain and simple. This is not an issue of right vs. left, conservative vs. liberal, or whatever. It's a question of basic human dignity. It doesn't matter what our opponents do, or what they plan to do, or what they'd like to do to us. We (and by that I mean America) hold ourselves out as the "shining city on a hill" to inspire the peoples of the world. We have squandered every last bit of goodwill that we spent the first 200+ years of our history earning from the rest of the world in the supposed name of keeping ourselves safe from...something. The Bushies never would tell us exactly what...

Investigations and prosecutions are not just necessary, they are essential...not just to regain the world's respect, but to regain respect for ourselves. If this truly is a partisan issue, if there really is an argument to be made for legally sanctioned and clandestine torture, then let that argument be made out in the open, within the hearing of all Americans and the world, open to discussion and debate. If having such a debate would be damaging to our republic, if it would somehow damage our ability to "move forward," it does not matter. If we cannot address our own wrongdoing without ripping ourselves apart, then we are just prolonging the inevitable. America is more than a nation, and at the risk of sounding trite, it is an idea that has endured longer than most states ever have. America is a dream of freedom and liberty under law. Let those laws work, and if it tears us apart in the process, what was it that we were really holding together in the first place?

UPDATE: Gene Lyons at Salon has two excellent pieces on the genesis of this whole debacle here and here.

UPDATE II: Ditto for Gary Kamiya:
Those opposed to reopening the book on the Bush years argue that doing so would tear the country apart. They're right -- but they forget that the country is already torn apart. The gulf between Democrats and Republicans has never been wider. The Republican Party, the home of those who still defend the Bush years, has become a reactionary and increasingly marginal movement that is in fealty to crude demagogues like Rush Limbaugh and whose hysterical denunciations of Obama sound more and more unhinged.

What this means is that those Americans who would be truly outraged by an investigation are already outraged. It could not make them any angrier or more bitter than they already are. And even if it did, how much difference would that make? The GOP base already regards Democrats as terrorist-coddling communists. Are they going to all join militias?
I kind of suspect that Mr. Kamiya has not been to Texas recently, or he might not be so sanguine about the idea of Republicans joining militias. I still prefer that to everyone hiding their true colors.

I suppose it's possible that for some the battle lines have not yet been drawn. I certainly hope not, though.