As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Thursday, September 03, 2009

If Accountability Is The Standard

The Dean rides to the rescue of that poor Mr. Cheney in the most predictable way possible. He's been at this forever. I'm surprised he wasn't a John Edwards fan, since he clearly believes in Two Americas, one for the Village and one for everyone else. In 1974, Broderella wrote enthusiastically about the prospect of Nixon beating the impeachment rap and Republicans surging in the midterms. While he lies about that in today's piece, he does admit that he supported Nixon's pardon. He's been covering for Republicans for so long he must feel like an umbrella.

But there's something very interesting, if unintentionally so, in what he says today:

Looming beyond the publicized cases of these relatively low-level operatives is the fundamental accountability question: What about those who approved of their actions? If accountability is the standard, then it should apply to the policymakers and not just to the underlings. Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock?

"If accountability is the standard." Nice.

Broder, of course, takes the wrong lesson from this, arguing that the country couldn't take such an assault on cherished criminals like Dick Cheney, and as long as everybody promises to never, ever do it again, we need to bind up our wounds and move forward. But he's giving voice to what many of us have been saying - that low-level interrogators are not ultimately responsible for an illegal policy, and that criminal culpability demands a response from the justice system. That Attorney General Holder has indemnified anyone who got a legal scribbling authorizing torture, in effect privileging the legal memos as legal regardless of what they say, is completely outrageous. Accountability should indeed apply to the policymakers. Hey, Dean Broder, don't bogart our argument!

That isn't just wrong, it's outrageous. It ratifies the most toxic aspect of the whole legal war on terror: that anything becomes permissible if it's served up with a side of memo. Paper your misconduct with footnotes and justifications—even after the fact—and you can do as you please. Prosecution of those who strayed beyond the new rules, without considering the culpability of those who strayed in creating the new rules, would mean that in America, a law degree amounts to a defense. Rep Jerry Nadler, D-N.Y., put it this way earlier this month when he warned that it makes no sense to prosecute the guy who used 8 ounces of water to water-board but not the lawyer who said it was OK to water-board someone with 3 ounces of water. We must either look into both sides of the post-9/11 legal breakdown or neither. The alternative is the same kind of scapegoating that occurred after Abu Ghraib [...]

The American legal system isn't just about crime and punishment. It's a set of guideposts to direct us in the future and to send a message about our values to the rest of the world. This proposed Holder-Durham regime of semi-accountability—we're sorry for that whole torture thing but not sorry enough to investigate seriously how it happened in the first place—serves the dangerous dual purpose of allowing us to reinstate the Bush-era torture rationales, should they be necessary again in the future, and advising our allies and enemies that under desperate circumstances, they can plausibly do the same. Opting to be only halfway responsible means that torture is, going forward, only halfway reprehensible. Ta-Nehisi Coates says, "I really have no doubt that we could—indeed would—start torturing again, in the event of another terrorist attack." If we don't dismantle the foundations of the torture regime, he'll be right.

It's a pretty good rule of thumb that, if Alberto Gonzales supports your torture investigation, it's not a very good torture investigation.

This would be the reason that the prescription should not be just to "fix" everything and move forward, without providing accountability - full accountability - for those who thought they could get a permission slip to violate federal and international law and get useful idiots like David Broder to hold them harmless. The very real threat to the country lies in the breakdown of the rule of law, not the restoration of it. And it might make the authorizers and the CIA sad and gloomy, and lower their morale, but that's precisely the point. In general people ought to be deterred from breaking the law; that's what makes them think twice about doing it. If investigating and prosecuting torture has a chilling effect, that's probably because it's supposed to. Kind of the basis of the entire criminal justice system, but if you want to dismantle that for everybody, at least shoplifters and petty thieves would be on a level playing field with those who murdered prisoners in custody.

At least Broder isn't quite the monster of his "liberal" colleague Richard Cohen, who follows up his "only a fool, or a Frenchman" classic with a robust defense of torture, including a note of how Judith Miller's imprisonment was "a wee bit of torture" and closing with the image of the smoldering World Trade Center. Pitted against that shamefulness, Dean Broder's practically a civil liberties absolutist. 1,000-odd words, Tom Tomorrow's six panels. He wins.

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