Monday, July 28, 2008

Keeping the Crimes Straight

Having trouble keeping the infinite crimes of the Smitky/Darth maladministration straight? Confused about what and who warrants prosecution, impeachment, pardoning?

Slate to the rescue, with a clickable Venn Diagram that covers all the major players, all their crimes and how they all interact in a single, easy-to-use graphic.

Also in Slate, Dahlia Lithwick explains why both pardoners and impeachers should agree to investigate first.

It says much about the cartoonish ways in which we talk about law and politics that the conversation about accountability for the Bush administration's lawbreaking takes place chiefly at the extremes. The choice, it would seem, is between Nuremberg-style war crime tribunals, broadcast live at primetime in January of 2009, or blanket immunity for everyone, in advance of knowing what they did or why. The men and women responsible for our descent into torture and eavesdropping in the last seven years are cast as either Nazi war criminals, in the manner of Judgment at Nuremberg, or valiant American heroes, in the model of Fox television's Jack Bauer.

... the question for most of us now is not whether laws were broken, but what to do about it. The War Crimes Act of 1996 makes it a federal crime for any American—military or civilian—to cause a "grave breach" of the Geneva Conventions' ban on inhumane treatment for prisoners. U.S. interrogators have been inhumane. Some of them have not only tortured but, in at least 100 cases, killed prisoners. A smattering of relatively low-ranking soldiers have been prosecuted, but in most instances there has been little or no accountability and none whatsoever at the top.

Will a sorting and allocating of responsibility for torture and other acts of lawlessness tear the country apart, or is it a necessary step toward repairing our image in the world? Is punishing wrongdoers a partisan witch hunt? Or is the failure to punish its own kind of lawlessness?


I am not arguing for instant war crimes prosecutions or for criminal indictments. The vital lesson of the past seven years is that hasty legal judgments are often bad ones and that criminal cases are difficult to build for a reason; questions of intent and knowledge really do matter more than conclusory labels. So this time, let's allow those legal processes to work.

On the other hand, we need careful investigation before we take the possibility of criminal prosecution off the table. To immunize or pardon everyone from John Yoo to David Addington to Monica Goodling, before we've seen critical classified memos or heard the conclusions on several fronts of the Department of Justice inspector general, is to remedy the reckless and dangerous decisions of the past with more dangerous recklessness. Criminal investigations aren't just about revenge, whatever Mukasey may think. They are a means of obtaining information and ultimately truth.

I also want to suggest that the wrong way to talk about legal accountability for the Bush administration is to cast it as something America owes the rest of the world. Sure, it's critically important to show our allies and enemies alike that the rule of law still means something here. But it is far more important to have this legal reckoning for America. Not because of some deranged liberal bloodlust, but because we need to understand that there just aren't two sets of law in America, one of which—like the good linen—we keep for special occasions. There isn't one set of laws for when we're panicky and reckless and another for tranquil times. There isn't one set of laws to punish the soldiers in the field and another for the commanders at the top. It's not just the president who seems to have forgotten this lesson in the last seven years. Most of us have. Worse yet, we've forgotten why it matters. We owe it to ourselves to begin to remember.

Read the whole thing.

Cross-posted at Blue in the Bluegrass.