A Nation of Laws

In his op-ed piece calling for investigations of the Bush & Co torture crimes and prosecutions related to same, Dr. Paul Krugman (a man I greatly admire) says:

Sorry, but what we really should do for the sake of the country is have investigations both of torture and of the march to war. These investigations should, where appropriate, be followed by prosecutions — not out of vindictiveness, but because this is a nation of laws.

Frank Rich, on the same topic makes a similar point:

What we must have are fair trials that at long last uphold and reclaim our nation’s commitment to the rule of law.

I seem to be missing something here. Isn’t the point of the Bybee memo and all the rest exactly that we are a nation of laws? Hence everything Bush & Co did was inside the framework of U.S. law. One might disagree about the interpretation of the law, but the law it was. So who shall “the law” prosecute and on what grounds? I’ve already written extensively on the issue of law vs. morality. This is not a legal issue and prosecutions, if at all viable, won’t do anything except create an illusion that “something is being done.”

So let’s look more closely at the question whom to prosecute and on what ground? The CIA agents? Bybee and the other lawyers? While it is true that during the Nuremberg trials, “I was just following orders” was not seen as a defense, the Nuremburg trials are not exactly standard legal procedures nor can they be seen as legal precedents for a US trial. In fact, the Nuremberg trials were (and still are) controversial and whether one seems them as “victor’s justice” or an act of universal law, they took place under international auspices and after a traumatic war. The outcome of those trials was known in advance. Under more standard US legal procedures, the CIA agents would easily be exonerated by the Bybee menu. As for Bybee, he was just interpreting the law as he saw it – how could he be prosecuted for that?

One of the main criticism of the Nuremberg trials is that the allies totally ignored their own war crimes. Just to cite one example, the Russian judge had been a participant in Stalin’s show trials (and to be honest there isn’t much difference between Hitler and Stalin). Bush & Co can legitimately argue that at worst, what they did differs in degree, not kind, from their predecessors who all used the CIA and/or surrogates to kill and torture the “enemy,” whomever was the designated enemy at the time. In fact, unlike Reagan, Bush & Co did bother to get legal cover for their actions. And even though Reagan and his operatives clearly violated US law in the Iran-Contra affair (to cite one example), all the people were rehabilitated and played prominent roles in Bush & Co!

Actually, one might argue that the real criminals are the American people. In 2004 when Bush was re-elected, the information on Abu Ghraib was already out there. By voting him back in, at least half of the American people endorsed torture. Are you going to prosecute all those hundreds of millions who democratically allowed these war crimes to continue and to this day still support them?

Seriously, this whole idea of legal prosecution is absurd. The real issue is a moral issue, and it is not specific to a given US President or Congress. The moral flaw starts in the culture of the US. The American people still believe in a globalized version of Manifest Destiny (and saying “America stands for something” is just a variant thereof) and still believe America can do whatever it wants wherever it wants in the world, because “we are the good guys.” What is needed is a long and arduous education process, to change this culture.

Which brings us to the call for a formal investigation. My take on this is as follows: We already know Bush & Co are war criminals. We already know their policies are failures. An official investigation wouldn’t change anything and I agree with Obama it would just be a useless distraction.  Krugman argues that an investigation would not be a distraction for the Obama administration. That statement is absurd, prima facie. One need only note how much media attention is being spent on the Air Force One flyover in New York. Imagine if there was a “torture investigation.” Nothing else would matter as long as it was going on. One might argue that it might serve as part of this education process, perhaps? I disagree. It would not be the least bit educational. It would be a political and media circus.

To Obama’s credit (and in the New Yorker podcast I linked to in my previous post, Philip Gourevitch makes this point) his first act as President was to make illegal that which should never have been made legal. Also, unlike any of his predecessors, he released these memos to the world almost in real time.  I don’t have much expectations of Obama beyond that. He personally adheres to some variant of the American Manifest Destiny doctrine, so no doubt his administration will also perpetrate war crimes somewhere in the world. Nonetheless, the memos he released will serve as tools in the education process. But that process has to take place outside any formal process instigated by him or his administration or the Congress. It has to be an internal dialog of the American people amongst themselves.

Tags: Feature, Human Rights, Propaganda, War Crimes