Wednesday, April 29, 2009

Waterboarding the Rule of Law

Waterboarding the Rule of Law

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Asked what he thought of Western civilization, the nonviolent Mahatma Gandhi famously replied, "I think it would be a good idea." Unless millions of Americans now demand better, we can say the same of "the rule of law." What a good idea it would have been, but - like the tooth fairy - it will not exist, not when competing priorities get in the way. The balancing - and trimming - is well on its way.

Should a special prosecutor hold Bush, Cheney, Rice and Rumsfeld accountable for violating the law against torture when they specifically authorized waterboarding, sleep deprivation, stress positions and sexual humiliation of detainees? "No one is above the law," President Obama repeatedly tells us. But, prosecuting Bush & Co. would tear the country apart, the Republican chorus chimes in. And it would create a precedent for prosecuting future presidents whose policies we might not like, just as in a banana republic.

Should Congress or a truth commission investigate torture and other war crimes so they will never happen again? Better not, the White House tells us. The country needs to look ahead and not to the past, and the administration needs to focus on fixing the economy and creating a universal health care system.

Should Congress impeach former Deputy Attorney General Jay Bybee, now a federal appeals court judge, for giving his superiors the legal arguments they wanted to justify the torture they had already decided upon? Absolutely not, his defenders insist. Lawyers must feel free to give officials their best legal advice, and officials must feel free to get the legal advice they need.

None of these alternative priorities are trivial. America should never criminalize differences over lawful policies. Obama and his administration should focus on ending the economic crisis and fulfilling his campaign promises. And senior officials should feel free to consult with government lawyers. But all these priorities must remain within legal limits, and none of them justify giving a pass to those who commit criminal acts, no matter how high their office. Either we uphold the rule of law or we make political priorities paramount. We cannot have it both ways, and we should stop pretending that we can.

The stakes here go far beyond whether or not we torture our enemies, our suspected enemies and then our own people, though these are obviously life-and-death concerns. What should scare us even more is whether or not we maintain even the fa├žade of democracy.

In overriding the Geneva Conventions, other treaty obligations and American laws banning torture, the Bush administration explicitly claimed that the president could do whatever he thought necessary to full his constitutional obligation to defend the country. He was the decider in chief, and neither Congress nor the courts could overrule his decision. As Jay Bybee's torture memo put it, "the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces."

Right-wing legal ideologues call this view of sweeping and unchecked presidential power "a strong unified presidency." Those who believe in it would turn our chief executive into an elected monarch, and some proponents would even grant him or her the right to call off elections in time of crisis, real or contrived. Following this grandiose view, President Bush usurped powers that the Constitution does not permit, and his administration used those powers to commit other crimes, from torture to invading Iraq on a pack of lies. Do we prosecute Bush's power grab as a criminal violation of the Constitution? Or, do we accept a crime bordering on treason as just another policy decision with which we may or may not disagree?

Either way, we set a precedent. Prosecute Bush, Cheney, Rice and Rumsfeld and we confirm that every future leader must operate within the rule of law. Give them a pass and their successors will feel free to rule as they will. The choice is clear, if only Americans have the courage to pursue it. My guess is that we do not, and that we will soon come to rue it.


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