Holding The Country Hostage
Jack Goldsmith tells us that if there are any prosecutions or further investigations into the torture regime the lawyers who give presidents legal advice in the future will feel constrained and we'll all be killed in our beds. This is, of course, the same thing we were told about the warrantless wiretapping: we have to allow these telcom industries to have amnesty or they won't cooperate in the future and we'll all be killed in our beds. Or , as Goldsmith reiterates at some length, we have to let the CIA be immunized for torture and kidnapping because if we don't they'll be afraid to be "aggressive" and the terrorists will kill us all in our beds. Again and again, we are told that the only way to keep us "safe" is for the government to be allowed to "take the gloves off" and break the law with impunity. This is blackmail. Allow us to do whatever we want or the country gets it.
If these lawyers advise the president to break the law they should be prosecuted like any other lawyer who advises a client to break the law. I suspect that isn't an easy thing to prove, but the principle should always apply. And from what we know of the legal reasoning for the torture regime, it was based on the Nixon doctrine of "if the president does it must be legal" which kind of negates the necessity of legal advisors in the first place. Any of these people could have resigned --- they're not indentured servants. They didn't. They enabled and encouraged and they are responsible. If they didn't want that responsiblity, and all that implies, they shouldn't have taken the job.
Goldsmith himself stood up to the administration and insisted that certain programs be changed to conform with legal norms. What do you suppose would have happened if he hadn't? If there hadn't been a James Comey in the department or if John Ashcroft hadn't risen, ghostlike, from his sickbed and said that he had delegated his authority to Comey? Are we supposed to just trust that there will always be people like that around who will step up? Are we also supposed to trust that they always did step up? We still don't know what those programs were all about, despite what Goldsmith says, and God knows how many others there are out there that haven't been revealed. (Just saying that congress was informed is no longer something we can depend upon either. They are covering their asses too --- and they are just as culpable if they knew about this and didn't say anything. ) If this is the new governmental principle we live by, then let's dismantle the whole justice system and depend upon the "good guys" to make sure the "bad guys" don't go overboard when they are "keeping us safe." We'll call it an authoritarian democracy and save a lot of money.
These people are being deeply unpatriotic if they say they won't keep the country safe because they are afraid of being prosecuted. In our system, if the law needs changing there's a process for doing it and constitutional principles that guide it. If in the end, a lawyer or a CIA agent or a president breaks that law out of what they believe is patriotic duty, then a jury can assess whether or not that's something for which they should be punished and they should be willing to face that.
I suspect that a lot of the lowly torturers and legal advisors did this sort of thing either out of career opportunism or cowardice or a blinkered willingness to follow orders and they know they are the ones likely to be prosecuted for the crimes that were devised by those above them. After all, as a smart person pointed out to me the other day, it's not like we haven't tried and convicted some torturers already --- the Abu Ghraib bad apples are serving hard time. The Big Bosses are all busy writing their memoirs. And that's precisely why the leadership should be subject to prosecution. In fact, prosecuting the leadership is a good argument for immunizing the rest -- they do that every day in our justice system.
I do not accept this idea that in order to keep the country safe we have to allow all these people to break the law and suffer no consequences. It's a complete inversion of the entire system. The reason we have a constitution and a bill of rights in the first place is to keep the citizens safe --- from the government. If you can throw it out because some nutcase blows up a building it's very hard to see why the police can't throw it out when they are dealing with gang members or drug lords or common murderers. After all, their job is to "keep us safe" too. Why is that any different?
Finally, and perhaps most importantly, 9/11 was a heinous crime, to be sure, but our leadership used the attack as an excuse to endow the presidency with untrammeled, unitary power. That is a crime against the constitution and it is an extreme weakness of our system that the president wasn't impeached and then prosecuted for what he did. It's really not too much to ask that the nation at least be fully informed of what happened, even if Bush and Cheney end up spending their elder years in comfort and safety behind the walls of their estates. That we can't expect even that much is truly a sad comment on our so-called democracy.
After all, despots and tyrants always do what they do in the name of "keeping the country safe." It's the oldest excuse in the book.
Update: Greenwald goes further into detail on Goldsmith's absurd plea. This is supposed to be one of the heroes of the Bush administration ...