Weisberg argues that because illegal torture was essentially America's official policy after 9/11, operating with complicity from the general public, it would be wrong to enforce US laws against torture now.
This argument basically morphs the infamous Nixon standard into a referendum--if the public supports something, then it is not illegal.
...waterboarding was ordered and served up in secret. But it, too, was America's policy--not just Dick Cheney's. Congress was informed about what was happening and raised no objection. The public knew, too. By 2003, if you didn't understand that the United States was inflicting torture upon those deemed enemy combatants, you weren't paying much attention. This is part of what makes applying a criminal-justice model to those most directly responsible such a bad idea. (emphasis added)
In this lawless paradigm, public awareness of government misconduct is cited as a justification for placing government officials above the law. Weisberg rules out the "criminal justice model"--you know, those laws that govern the rest of us--because some segment of the public "knew" about government torture in 2003. "Well before the nation reelected George W. Bush in 2004," the article states, "investigative reporters had unearthed the salient aspects of his torture policy."
This argument makes no sense. Elections do not cancel our laws. All kinds of politicians, from the charismatic to the corrupt, can get reelected after being exposed for crimes or misconduct. Yet public sentiment should not bully an independent, apolitical Justice Department from enforcing the laws equally, regardless of the power or popularity of alleged criminals. The public disclosures about President Bush's "torture policy," to use Weisberg's taxonomy, simply have no bearing on the legal question of who knowingly broke the law. Torture is illegal, as even Bush officials concede, and the Justice Department has a duty to investigate and prosecute crimes.
Weisberg admits, however, that he actually envisions a Justice Department cowed by political pressure. In his narrative, corrupted executive branch decisions masquerade as hard-nose realism: "Pursuing criminal charges would be too hard politically." That is a reckless declaration, obviously, but Weisberg is not alone.
If there is one partisan obsession that independent commentators and die-hard Obama supporters share, it is the crass premise that politics should trump equal enforcement of the law. Many even admit it openly.
Time columnist Joe Klein opposes enforcing torture laws "for political reasons, mostly," he recently wrote, to avoid detracting from Obama's "important domestic and foreign business." I've heard this same argument from many Obama supporters in email, blog comments and at political events. (To be fair, though, it is also countered by apolitical accountability efforts on the Left, from organizations taking the new administration to court, like ACLU and CCR, to blogs criticizing Obama's legal muddle, such as FireDogLake, Glenn Greenwald and Democrats.com.)
This agenda argument, however, is totally out of bounds. It is offered by people who have forgotten, perhaps temporarily, that some goals are simply illegitimate in a democratic society bound by the rule of law.
The Justice Department is never allowed to enforce (or undermine) the law for "political reasons." That's what the US attorney firings and the Saturday Night Massacre were about. It is perverse to oppose the enforcement of war crimes like waterboarding because one happens to support the policies of the incumbent President. Would Joe Klein reverse course if prosecutions thwarted the agenda of an administration he opposed?
Political meddling at the Justice Department, like torture, must be off the table regardless of utility. Nor should the government weigh whether national security is advanced by, say, canceling elections.
Our constitution does not allow a shift towards dictatorship or war crimes, even if it made us "safer." Yet the current torture debate returns to the surreal contemplation of crimes against humanity on the basis of their (contested) intelligence value.
"It's almost an out of body experience to me to listen to this debate going on," said General Barry McCafferey in an MSNBC interview last month, scolding pundits and policymakers who openly advocate a criminal torture regime. "We should never, as a policy, maltreat people under our control--detainees. We tortured people, unmercifully, we probably murdered dozens of them," he said. McCaffrey supports an investigation of the government lawyers who knowingly advocated illegal torture, and he specifically cited Bush's White House counsel and Attorney General in the same discussion, emphasizing that "we better find out how we went so wrong."
One reason we went so wrong, as the public record now proves, is that policymakers and government lawyers gave fraudulent counsel to advance an illegal torture regime. If the US does not independently investigate those crimes with all the potential legal consequences on the table--taking testimony under oath, punishing perjury, disbarring lawyers (or judges) and prosecuting war crimes--we are more likely to get it wrong again in the future.
To put it on Obama's preferred terms, we must "look forward" to give the citizens who live through the next attack, whenever it comes, a clear guide for how to uphold American values under duress--and a tangible disincentive against returning to torture. As it stands, the current precedent leans heavily towards lawless immunity, not accountability. And no, it's not your fault.
UPDATE: I discuss these issues more in this new post, Congressman Warns Obama White House on Abusing Power.