08/17/2011 09:33 am ET | Updated Oct 17, 2011

How Do We Justify Indicting Roger Clemens For Lying But Not Indicting Those Persons Who Authorized and Directed Torture?

Isn't it ironic that Roger Clemons is indicted for lying to Congress about steroid use, while those who authorized and directed the use of torture remain uncharged and unpunished? For the first time a United States Court has permitted a case of torture to proceed. The United States Court of Appeals for the Seventh Circuit has permitted two Americans employed in Iraq to sue Donald Rumsfeld. They allege they were whistleblowers regarding illegal activity (including weapons trafficking) by their employer, and were detained and tortured by the U.S. Military as a result. They eventually were released without explanation or charges against them. (New York Times 8/4/11)

Virtually all other civil cases have been dismissed on the grounds of "state secrets" or "national security." Which translates into: we do not want anyone to know what we were doing. I think that there are a number of reasons these cases are not being pursued or allowed to proceed. First, we would prefer that there be no public, particularly international, airing of our conduct in this regard.
Secondly, if criminal indictments were pursued who would be named as defendants? We have banks and companies too big to fail. Do we have individuals too big to indict? Any attempt to indict high-level government officials would immediately be met with cries of "politics." For an incoming administration to indict persons from a prior administration would set a dangerous precedent. Of course, a great deal depends upon which party is coming or going.

The Democrats want to make friends, while the Republicans don't care about making enemies -- witness the impeachment of President Clinton on the most trivial of grounds.

Torture is wrong and is illegal. It has a variety of forms: torture as punishment; torture to gain information regarding past crimes and criminals; and torture to prevent future crimes or acts of terror. I suspect that in general the public condemns the first two, but the jury is out on the third. We have all heard the scenario of the suspect in custody who knows where the atomic bomb is hidden in a major city and time is of the essence. For many our conscience would be salved if torture occurred under those circumstances -- but, and this is a big but, if we had the right person and that person had the information. At best, those circumstances might provide a defense to conviction or mitigating circumstances when it came to punishment, but that rare (and possibly non-existent) scenario cannot immunize all those who have authorized, directed or committed torture in the name of our government.

I return to where I began. We indict or charge people for lying to Congress or law enforcement, for elected officials misusing campaign funds or for abusing their office or harassing their employees. We pillorize politicians for their extra-marital affairs, their illegitimate babies, their obscene text photos, their dalliance with prostitutes, and yet one of the most horrendous crimes a person can commit upon another goes uncharged and unpunished. If we do not have the public will to bring criminal actions, at least let us permit the civil actions to proceed and compensate those who have been wrongly tortured. I think the public psyche would prefer that the subject go away. It will embarrass us. It will affect people who some respected and admired. Many may feel the acts were justified and needed in the war on terror. But by remaining silent and restrained, we condone what has transpired and take us a step closer to those in whose name we tortured.