Friday, May 15, 2009


In most instances, the law allows one to plead inconsistent and alternative defenses. The Bush administration has used it to a fare-thee-well. For instance, 1) it denies that it tortured; 2) if it did torture, the torture was authorized by advice of counsel; 3) even if the advice of counsel was tainted, the torture was justified by the thousands of lives it saved; 4) and in any event, the Democrats are jointly responsible because they knew and acquiesced in the mistreatment of detainees. The latter accusation is apt to keep the issue burning indefinitely and fires the demand for the further release of photos, documents and an independent "truth commission". It certainly detracts from the more important crises facing the country. What Nancy Pelosi knew and when she knew it hardly stems the flood of foreclosures, and whether she knew and failed to complain doesn't quite equate with actually authorizing and directly ordering torture. Somehow the Republicans see no inconsistency in claiming that the Bush administration did nothing wrong in their treatment of detainees, BUT Nancy Pelosi knew what they were doing and failed to complain or take steps to stop it!

As a result, the current administration and the country face a dilemma. The release of more photos and further evidence of prisoner abuse is certain to arouse our enemies and increase their recruitments. The failure to do so runs contrary to the President's commitment to transparency and results in concealing what may actually turn out to be war crimes. Some suggest it is the Pentagon Papers redux----that unless some real and imminent threat can be established the First Amendment trumps hypothetical harm---no matter how likely it is to occur. Despite the denials by the Bush administration, by now the country knows that acts of torture were committed against detainees. If the purpose of a commission is to determine the extent of the torture and who authorized or directed it, I think that merely serves to lay political blame and would not be warranted with so many other issues facing the country.

On the other hand, if such a commission, independent counsel or grand jury is created with the expectation and purpose that it might recommend criminal prosecution or other sanctions, to me that would be a worthwhile purpose. I understand the President's concerns about looking back rather than going forward and that such an investigation and possible indictments might appear to be viewed as politically motivated. But we criticized the previous administration for using the Justice Department for political purposes, can we now justify failing to use it for the same reasons, although conceding the current motives are laudable while the past were not. Admittedly, indicting and trying high level officials of the opposition party, particularly for such high crimes, is a wrenching prospect and establishes a dangerous precedent. The questions are:

What will it do to us as a nation if we pursue it? What will it say about us, if we do not?

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