Front & Center: Should Torture Regime Architects Be Charged As War Criminals?

Despite the excesses of the Age of Bush -- notably the embrace of torture and willful subjugation of the rule of law -- the U.S. remains a substantially open and just society. So it was inevitable that the consequences of the administration's foulest deeds would begin nipping at the heels of the perpetrators sooner or later.

As far back as 2004, participants in White House meetings with Vice President Cheney, David Addington and Alberto Gonzalez understood that these torture regime architects were objecting to calls for minimum treatment standards for detainees not just because of their belief that the U.S. had to be protected from future terror attacks but because they needed to protect themselves from future legal repercussions, and backpedaling would be evidence that they understood they were legally liable.

And so amidst the first U.S. war crimes trial since World War II, a proceeding that comedian Stephen Colbert darkly joked was "the most historic session of traffic court ever," there are the first serious discussions about whether Cheney, Addington, Gonzalez and others should be considered war criminals themselves.

While charging these officials with war crimes would certainly appeal to the emotional side of people like myself who as a proud American takes personally how my country has been hijacked by thugs in pinstripes, it is beyond the pale to think that a U.S. court of law would address the war-crimes issue as such. (That would be more likely were any of these officials to set foot in a number of European countries.)

More pertinent to the discussion -- and there must be a discussion and not merely a partisan lynching party led by left-leaning screaming memes -- is whether these officials knew that what they were doing might be illegal.

The answer is an emphatic "yes" because of the great lengths to which they went to first deny the existence of torture as a policy and then to wrap themselves in the obfuscations of a handmaiden by the name of John Yoo, whose singular talent in the Justice Department's Office of Legal Counsel was to take desired outcomes such as giving torture a veneer of legality by green lighting its use by backfilling with gibberish-filled memos. Attorney General Michael Mukasey actually has managed to outdo Yoo in advancing legal flotsam such as his view that Justice's lawyers cannot commit crimes when they act under the orders of the president and the president cannot commit crimes when he acts under advice of these lawyers.

How then to proceed?

As much as I would like to see Cheney, Addington, Gonzalez and others in the dock as defendants in a war crimes proceeding, I have to defer to the absolute requirement that the initial phase of any proceedings must be as bipartisan as possible.

This creates a big problem:

Republican and Democratic congressfolk aided and abetted the terror regime, and any accounting should necessarily reprise their role.

This includes their amending the federal War Crimes Act, which makes prosecutable "grave" breaches of the Geneva Conventions, to in effect immunize administration perpetrators.

Furthermore, it is a leap of faith to believe that a substantial number of Republicans would join in any Democratic effort to set up the mechanism that must precede any criminal investigations.

It probably is safe to say that Barack Obama would agree that the bipartisan way is the right way, and there is no question that Cass Sunstein (small photo), an advisor to Obama, is channeling the presumptive Democratic nominee and probable next president in saying that:

"We’re talking about some pretty serious issues here, and I think it’s good to distinguish among various ones. So, are we in favor of immunizing people who worked in the White House in the last eight years from accountability for criminal acts? I don’t think anyone should be in favor of that. We're in agreement on the need to hold people accountable for criminal wrongdoing.

"Then there’s a second question, which is the impeachment question, which is analytically very different.

"Then there’s a third issue, which involves pardons. For the President to issue a preemptive pardon of all illegality on the part of those involved in his administration would be intolerable, and the political retribution for that should be extreme. I expect the President won't do that.

"With respect to holding people accountable, the first things that’s needed is sunlight. Justice Brandeis, the Supreme Court justice, said sunlight is the best of disinfectants. So I agree very much that we want clarity with respect to what’s been done. It's important to think, not in a fussy way, but in a way that ensures the kind of fairness our system calls for. It's important to distinguish various processes by which we can produce accountability. I don’t believe the courtroom is the exclusive route. Congress is our national lawmaker, and there are processes there that could have a bipartisan quality. There are also commissions that can be created, commissions that can try to figure out what’s happened, what’s gone wrong and how can we make this better."

I'm with Sunstein, and could not disagree more with Stewart Taylor Jr., a writer for Newsweek, who opines that:

" . . . Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers. (It would be unseemly for Bush to pardon Vice President Dick Cheney or himself, but the next president wouldn't allow them to be prosecuted anyway—galling as that may be to critics.)"

In other words, Taylor believes that there cannot be a full accounting -- his preference would be a feel-good truth commission -- without letting all of the bad guys off.

Besides which, he argues unconvincingly:

"Pardons would not be favors to criminals. One can argue that officials could have or should have resigned rather than implement questionable legal judgments, but there is no evidence that any high-level official acted with criminal intent. The officials involved appear to have approved only interrogation methods found legal by administration lawyers, and in particular by the Justice Department's Office of Legal Counsel (OLC). According to long tradition, the OLC is considered a sort of Supreme Court of the executive branch."

Well, a slew of administration officials did resign or otherwise object to the torture regime precisely because they understood that it was not just immoral, but possibly criminal.

They include Jack Goldsmith, head of the OLC; Solicitor General Ted Olson; John Ashcroft, Bush's first attorney general; Alberto Mora, Navy general counsel, and Army Major General Anthony Taguba, who headed the investigation into the Abu Ghraib torture scandal. Condoleeza Rice, Bush's first national security advisor and second secretary of state, and Colin Powell, her predecessor at State, also reportedly objected.

Dan Fejes, writing at Pruning Shears, says the crux of the problem is that the Republican Party has come to view the law as entirely political:

"When Congress passes a law, or a President follows it (or doesn’t), or the Justice Department enforces it (or doesn’t), or the Supreme Court rules on it -- these are all political footballs to be kicked around, not fundamental building blocks of a functional society. In other words, lawless, ignorant, contemptible hacks are fine as long as they are our lawless, ignorant, contemptible hacks. The collapse of integrity and wholesale politicization at Justice is not a problem in and of itself; it only is a problem if a Democrat does it."

Fejes is on to something, but laying the blame entirely at the feet of the GOP excuses too many Democrats.

As someone who has opposed impeaching Bush and Cheney, I have been fond of saying that the worst punishment they will face is their shattered legacies. As John Ashcroft remarked at one White House meeting on torture, "History will not judge this kindly."

But as the revelations have trickled out, most recently with publication of Jane Mayer's horrifying The Dark Side, the truth is that the use of torture did not begin with rogue commanders at Guantánamo and interrogators at Abu Ghraib prison in Iraq, but at the very highest levels of government. In the end, Cheney, Addington and Gonzalez in particular, and possibly Donald Rumsfeld and Douglas Feith, as well, should be prosecuted at minimum for knowingly violating their oaths of office, something that will take a whole lot more than bipartisan kum-bay-aying.

Photo illustration for Vanity Fair by Chris Mueller