Threats to Democracy ~ How to Deal With Our War Criminals
In the December '08 issue of Harper's Scott Horton has written a very provocative, insightful essay "Justice Post Bush: Prosecuting an Outlaw Administration." (It is available only behind a fire wall.) Here are Horton's premises, each of which seems incontrovertible:
There can be no doubt that torture is illegal. There is no wartime exception for torture, nor is there an exception for prisoners or "enemy combatants," nor is there an exception for "enhanced methods." The authors of the Constitution forbade "cruel and unusual punishment," the details of the prohibition were made explicit in the Geneva Conventions ("No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatsoever.") and that definition has in turn become subject to U.S. enforcement through the Uniform Code of Military Justice, the U.S. Criminal Code, and several acts of Congress.Horton goes on to insist (rightly) that since all of that is public knowledge, the option of simply doing nothing is unavailable. His basic point is that not holding Bush and his minions accountable is toxic to democracy.
Nor can there be any doubt that this administration conspired to commit torture [. . .]
Finally, there can be no doubt that the potential criminality of [their] acts.
If the people wish to maintain sovereignty, they must also claim responsibility for the actions taken in their name. As of yet, they they have not. Pursuing the Bush Administration for crimes long known to the public may amount to a kind of hypocrisy, but it is a necessary hypocrisy. The alternative, simply doing nothing, not only ratifies torture; it ratifies the failure of the people to control the actions of their government.Horton then proceeds to examine the costs and benefits, prospects and lack thereof, surrounding various legal means for pursuing Bush et. al. - international tribunals, domestic courts, and an independent commission of inquiry. He argues that the most likely and most productive alternative would be a special investigative commission (he discusses a couple of alternative forms) operating in the shadow of a Presidentially appointed special prosecutor.
I think that Horton is right to push this matter. And I think the consequences he identifies are just right. The American people are complicit in the policy of systematic torture and one way to address that complicity, and to insulate our democratic institutions from it, is to iniitiate public inquiry and prosecutions. Conservatives will no doubt complain that Horton and others who call for sanctions on Bush administration are criminalizing politics and policy. My response? Bush, Cheney, Rice, Ashcroft Rumsfeld, Powell and on down the line are the ones who criminalized U.S. policy. And they did so knowingly. Horton is right about the consequences of not holding them accountable. And conservatives who pledge allegiance to democracy and the rule of law ought to worry more about those consequences than they seem to do.
On a related note, the Horton essay is accompanied by a powerful series of drawings (including the two I've lifted here) made by David Fox who explains: "Drawing was a release for the outrage, I and many others, felt about the daily accounts of the barbarism and human suffering going on in Iraq. I made a large series of drawings in black and white, hoping they would have the immediacy of a newspaper image or report."