It's not quite time to let bygones be bygones.

It's not quite time to let bygones be bygones.

It's not quite time to let bygones be bygones.

The law, lawyers, and the court.
July 24 2008 4:48 PM

Investigate Now, Pardon Later

It's not quite time to let bygones be bygones.

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.

There's not much dispute that domestic and international laws were broken in pursuit of the war on terror (see our monster Venn diagram). A federal judge recently ruled that President Bush violated the Foreign Intelligence Surveillance Act in ordering the National Security Agency to eavesdrop on Americans without warrants. Jane Mayer reports in her superb new book, The Dark Side,on a classified report from the International Red Cross finding that Bush administration officials authorized interrogation tactics that were "categorically" torture. And today we learn, from government memos released by the ACLU, that the Department of Justice authorized the use of "enhanced" interrogation techniques, including "the waterboard," on specific detainees. A handful of Bush administration officials continue to insist that water-boarding and eavesdropping are legal. Of course, they tend to be the same people who refuse to say that being buried alive or boiled in hot oil is illegal, so long as the president orders it.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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Such contortionism aside, 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?

There is a small but growing constituency for the prosecution of torture memo author John Yoo; Jim Haynes, former general counsel at the Defense Department; Defense Secretary Donald Rumsfeld; David Addington, the vice president's general counsel; and others. Antonio Taguba, the retired major general who investigated torture in Iraq, seemed to be urging such steps when he wrote in a searing report for Physicians for Human Rights that "there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

In testimony before Congress in May, Marjorie Cohn, president of the National Lawyers Guild, said that top U.S. officials are liable under the War Crimes Act and the Convention Against Torture. Cohn also said that under the doctrine of "command responsibility," officials at the top are liable if they knew or should have known their subordinates would torture and did nothing to stop them. Cohn called for a congressional committee and a special prosecutor to investigate. Philippe Sands carefully lays out the case against Jim Haynes, John Yoo, and the other lawyers who—he says—violated the law and their own ethical rules by twisting the law to achieve desired outcomes. But he has greater confidence that foreign courts will be the ones that bring them to justice.

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Like Sands, lawyer and writer Scott Horton backs prosecutions but suspects they will happen outside America, if it all. He writes that despite "ample theoretical grounds for a war-crimes prosecution," such accountability "requires political will, which makes it quite unlikely to happen in the United States." Both Horton and Sands take comfort in knowing that the magic of universal legal jurisdiction means the torture architects will spend their golden years landlocked in America. If they leave, a foreign court could haul them in. A European investigating magistrate told Sands that "if one of the targets lands on our territory or on the territory of one of our cooperating jurisdictions, then we'll be prepared to act." Colin Powell's former chief of staff, Lawrence Wilkerson, says simply that Addington, former Attorney General Albert Gonzales, and former Undersecretary of State Douglas Feith should probably "never travel outside the U.S." In sum, we have all but announced that we give up on the idea of domestic accountability, but feel shivers of delight in the fantasy that Europe will someday get the job done for us.

At the other end of the spectrum are the suggestions of an amnesty deal for everyone who had any sort of finger in the torture pie. James Ross, legal and policy director for Human Rights Watch, cautioned in Salon that "in his administration's waning days Bush will issue a preemptive pardon for all those who have or may have committed federal crimes relating to detainee interrogations. He might even invoke his father's Orwellian praise of the Iran-Contra defendants, who were pardoned because of their 'patriotism' and 'long and distinguished record of service to the country.' " In Newsweek last week, my colleague Stuart Taylor wrote that the president "ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers."

Taylor would do away with any possibility of criminal prosecution in favor of a truth commission. Nicholas Kristof also seeks a "truth and reconciliation" commission, modeled after the South African response to apartheid. Such a commission would "lead a process of soul searching and national cleansing."

I don't know about you, but sometimes I believe there's nothing quite as cleansing to the soul as an indictment. I am less sanguine than Taylor that a promise of sweeping prospective immunity for all Bush administration wrongdoers would lead to a great outpouring of candor and revelations. For one thing, the Bush administration has already sought to immunize itself for every kind of lawbreaking—often within hours of violating the law—and yet still it has classified or claimed privileged in relation to almost every aspect of the war on terror under some shape-shifting theory of state secrecy or executive privilege. To Taylor's and Kristof's suggestions that truth will out if some formal bipartisan body with subpoena power is empanelled, I'd respond that we have such a body. It's called Congress. And its efforts to investigate Bush administration lawbreaking are already being dismissed as vengeful witch hunts.

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That, then, is the nut of the problem. Defenders of lawbreakers in the highest reaches of the Bush administration now insist that anyone seeking accountability is a bully and that any effort to clarify what happened or how is animated by partisan bloodlust. Attorney General Michael Mukasey has elevated this argument to an art form. The man who once testified that John Yoo's torture memo was "worse than a sin" has just announced that he would neither investigate nor prosecute the torture architects because they acted in "good faith." Mukasey in speeches not only blames overcautious lawyers for intelligence failures that led to 9/11, but scolds that the decision-makers who authorized forced nakedness and water-boarding "were often working in an atmosphere of almost unimaginable pressure, without the academic luxury of endless time for debate." These are the heroes. Those who seek accountability for their decisions are "hostile and unforgiving." If Mukasey showed as much compassion for everyone who sits in jail today for decisions made quickly and under pressure, the prison crowding problem would be over tomorrow. So very few of us who smoke crack, steal cars, or shoot unfaithful spouses do so after sober and thoughtful reflection.

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.