The "Truthiness" Dilemma

In most instances, the law allows one to plead inconsistent and alternative defenses. The Bush administration has used it to a fare-thee-well.

For instance: 1) it denies that it tortured; 2) if it did torture, it was authorized by advice of counsel; 3) even if the advice of counsel was tainted, the torture was justified by the thousands of lives it saved; 4) and in any event, the Democrats are jointly responsible because they knew and acquiesced in the mistreatment of detainees. The latter accusation is apt to keep the issue burning indefinitely and fires the demand for an independent "truth commission".

It certainly detracts from the more important crises confronting the country. What Nancy Pelosi knew and when she knew it hardly stems the flood of foreclosures, and whether she knew and failed to complain doesn't quite equate with actually authorizing and directly ordering torture. Somehow the Republicans see no irony in claiming the Bush administration did nothing wrong in their treatment of detainees, but Nancy Pelosi knew what they were doing and failed to complain or take steps to stop it!

As a result, the current administration and the country face a "truthiness" dilemma. The release of more photos and further evidence of prisoner abuse is certain to arouse our enemies and increase their recruitment. The failure to do so runs contrary to the President's commitment to transparency and results in concealing what may actually turn out to be war crimes. Some suggest that this issue of disclosure is the Pentagon Papers redux -- that unless some real and imminent threat can be established, the First Amendment trumps hypothetical harm -- no matter how likely it is to occur, thus requiring full disclosure.

Despite the denials by the Bush administration, by now the country and the whole world know that acts of torture were committed against detainees. If the purpose of a commission or hearings is to determine the extent of the torture and who authorized and directed it, I think that serves merely to lay political blame and would not be warranted considering so many other dire issues facing the country now.

On the other hand, if such commission, independent counsel, special prosecutor or grand jury is created with the expectation that it might recommend criminal prosecutions or other sanctions, to my mind, that would be a worthwhile purpose. I understand the President's desire to look forward rather than backward and that such investigations and possible indictments might appear to be politically motivated. But we criticized the previous administration for using the Justice Department for political purposes, can we now justify failing to use it for the same reasons.

Recent revelations about the role of Vice-President Cheney make it even more compelling that some formal inquiry is required. It must be conceded and recognized that indicting and trying top level officials of the opposition party of the prior administration, particularly for high crimes, is a wrenching prospect and establishes a dangerous precedent. But the questions the country and the Obama administration must face are: What will it do to us as nation if we pursue these allegations of torture and other misconduct? What will it say about us, if we do not?

Comments

[Hopeington]

HuffPost's Pick

In regards to the Presidents wanting to look forward just doesn't sit right with me. If that applies to Cheney and company, then why doesn't it apply to other criminals? Since when did we decide which crimes to look at and which to "not look back on"? It just makes no sense to me. My son was in court recently, how come he didn't get that treatment?
And I completely agree, Pelosi only said she wasn't informed about possible crimes committed and yet she is worse than the people that possibly (and probably) committed the crimes. It just makes no sense to me. Let it follow due process President Obama.

[FCruz12780]

Writing about "Truthiness" (quotation marks emphasized) without any mention of Stephen Colbert does not seem right.

[Judge H. Lee Sarokin - Huffpost Blogger]

I assumed that everyone knew that 'truthiness" was a Colbert creation, but if not I hereby give him full credit and apologize for not doing so originally.

[FCruz12780]

Your honor, you are a good sport.

[Judge H. Lee Sarokin - Huffpost Blogger]

tjhannink - You are quite right that the decision to pursue a criminal investigation and possible indictments should rest with the Justice Department and not with the administration. Indeed, it appears that Eric Holder is now wrestling with that very issue. However, if he should decide to proceed, he will do so knowing that he is acting contrary to the wishes of the President. I suspect that this will be a very early test of his independence which he would like to avoid.

[Judge H. Lee Sarokin - Huffpost Blogger]

serena - I totally agree with everything you say, but I can understand President Obama's reluctance to pursue criminal proceedings against members of the previous administration, because it will further divide the country at a time when so many critical issues need resolving and consensus. I, too, am inclined to believe that principle should trump the practical, but I recognize the dilemma for the administration.

[serena1313]

The Bush administration used every trick in the book to avoid Congressional oversight. According to Sy Hersh, Bush authourized Rumsfeld to organize special operations in South Asia and the Middle-East without going through the CIA or Congress. July 2005 Hersh wrote the WH circumvented Pelosi by organizing covert ops led by retired CIA officers and non-government personnel to influence Iraqi elections. July 2008 Hersh reported the WH was exploiting the technical differences between defense and intelligence operations to avoid briefing Congress on pursuing "high-value targets" in Iran. That said, Pelosi deserves the benefit of the doubt.

Understandably Obama wants to move on, but too much has been revealed. Presumably he realizes an investigation might cause everything to unravel. Moreover failure to hold the previous administration accountable their policies will become permanently entrenched in our system of government thereby giving future administrations free reign to act outside the law.

America must honour its obligations to international treaties, otherwise other nations will be disinclined to honour theirs. This is not about politics, retribution nor is it trivial. America's future depends on having an influential leadership role on the world stage.

[Judge H. Lee Sarokin - Huffpost Blogger]

See reply above - this is new to me

[tjhannink]

"It must be conceded and recognized that indicting and trying top level officials of the opposition party of the prior administration, particularly for high crimes, is a wrenching prospect and establishes a dangerous precedent.­"
When exactly is the right time to go after an adminstration for "high crimes"? It should have happened immediately, but the combination of a secretive administration, a politicized justice department and a congress that abdicated their role in the process made that improbable. How will that situation be addressed to keep it from re-occuring?
The current administration should not be on the hook for investigating the previous one; that should be the domain of an impartial justice department spurred on by a congressional oversight committee.
There is only now or later; waiting only makes it harder to get to the truth.

"What will it do to us as nation if we pursue these allegations of torture and other misconduct?"
The question should be - what will it do to us as a nation if we FAIL to pursue these ACTS of torture and other misconduct? Everyone from the prison guards up to the president knew better, knew that it wasn't the right thing to do, but they all allowed it to happen. They are all accountable or will be held so eventually; they haven't "gotten away" with anything. Personally, I hope they take it with them to their graves and then have to explain it to their creator - that would be justice.

[Judge H. Lee Sarokin - Huffpost Blogger]

See reply above - this is new to me

[mnich13]

If the American public looks in the mirror and doesn't like what it sees, it has a couple of choices: it can either decide that some changes to our national character need to be made, or it can decide to break all the mirrors.

I fear we're in for a season of mirror-breaking.

[Hawkman4]

Oh great, we're in for another seven years bad luck.

[Judge H. Lee Sarokin - Huffpost Blogger]

Or we can close our eyes and do nothing or do something about those who disfigured us. That's the dilemma