I have always been in favor of prosecutions for the unitary executive torture regime. Recently, however, I have reluctantly concluded that the best we could hope for is a "9/12" Commission investigation since Obama has been making it quite clear that he doesn't intend to pursue government officials through the Justice system (and congress is congenitally incapable of it.) I was impressed by Charles Homan's article in Washington Monthly that at the very least we needed to establish some official narrative of illegality and abuse of power lest this become an established option for future presidents.
But I am persuaded by Dahlia Lithwick that such a commission won't get the job done, even if done perfectly and that prosecutions really are the only way to ensure that this won't happen again:
It's sweet and fanciful to think that with a grant of immunity and a hot cup of chai, Bush-administration officials who have scoffed at congressional subpoenas and court dates will sit down and unburden themselves to a truth commission about their role in the U.S. attorney firings. I agree completely with Charles Homans, who, in this must-read piece for the Washington Monthly, argues for the release of classified information at all costs. But I just cannot bring myself to believe that the full story will ever be told to our collective satisfaction. Even if every living American were someday to purchase and read the truth commission's collectively agreed-on bipartisan narrative, weaving together John Yoo's best intentions and Khalid Sheikh Mohammed's torment on the water board, sweeping national reconciliation will elude us.
As my friend Jack Goldsmith points out in an op-ed today, we already know the truth of what happened. Not all of it, to be sure, but we know a good deal about who made which critical decisions and when. Just read Michael Ratner's devastating new book, The Trial of Donald Rumsfeld. Read Philippe Sands' Torture Team. Read Jane Mayer's The Dark Side. Read this painfully detailed new report from U.C.-Berkeley, in partnership with the Center for Constitutional Rights, chronicling the experiences of former detainees held in Afghanistan and Guantanamo Bay. These writers are not crackpots. We may not have every memo, and we may not be able to name every name. But do truth commissions alone ever reveal the full story? If we decline to hold lawbreakers to account, we may find out a whole lot of facts and arrive at no truth at all. Is the truth that if the president orders it, it isn't illegal? Or is the truth that good people do bad things in wartime, but that's OK? Is the truth that if we torture strange men with strange names, it's not lawbreaking? What legal precedent will this big bipartisan narrative set for the next president with a hankering for dunking prisoners?
In any event, we already know what the other side of the story is. Michael Mukasey holds that those who authorized lawbreaking did so out of "a good-faith desire to protect the citizens of our Nation from a future terrorist attack." Witness after witness will tell the truth commission that they were scared; they were making quick decisions in the heat of battle, and that their hearts were pure. The real problem, they will go on to say, was that there was too much law—a crippling maze of domestic and international laws that paralyzed government lawyers and the intelligence community. Goldsmith makes that same point in his op-ed today, in arguing against criminal investigations or even a bipartisan commission: Under the threat of criminal sanctions or even noncriminal commissions, "lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment." It seems that after 9/11, the solution to the problem of too much law was to simply do away with the stuff. And the solution to the lawlessness that followed 9/11? Do away with any legal consequences for the perpetrators. If there exists a more perverse method of restoring the rule of law in America than announcing that legal instruments are inadequate to address them, I can't imagine it.
She's right. I have been being overly "pragmatic" (depressed is more like it) in assuming that a 9/12 commission will be better than nothing. It would actually be worse than nothing, creating a shallow self-serving narrative of fine, hard working public servants who may have strayed over the line from time to time because they were only trying to keep us safe. It's always been out there. After all, Rep. Henry Hyde famously said about Iran-Contra:
"All of us at some time confront conflicts between rights and duties, between choices that are evil and less evil, and one hardly exhausts moral imagination by labeling every untruth and every deception an outrage."
(Of course, he also said:"Lying poisons justice. If we are to defend justice and the rule of law, lying must have consequences," but that was about the high crime of unauthorized fellatio so it wouldn't apply to such things as shadow governments, torture and suspending of the constitution.)
This movement conservative zombie was created at the time of Nixon and his pardon, extended through Iran Contra, went through the insane era of partisan investigations in the 1990s which culminated in a trumped-up, partisan impeachment, a stolen election and the lawbreaking Bush years. Nobody has ever paid a price for any of that.
There is absolutely no reason to believe that the next time a Republican is elected to the presidency he or she won't pick right up where they left off. That is the story of the last 40 years and until there is some price to pay they will keep right on doing it, escalating each time. For all the Colin Powell's who have come over from the Dark Side, there a many more who were trained in this worldview during this long conservative era. At some point they will try to keep power permanently. All it would take is just the right kind of crisis for them to justify it. After all, the precedents are all lined up --- normalized and legalized each step of the way by Democrats who didn't want to spend their political capital to stop it.