Can't we hold torturers accountable and still find out the truth?

The law, lawyers, and the court.
Nov. 26 2008 6:38 PM

Truth or Consequences?

Why can't we hold torturers accountable and still find out the truth?

Donald Rumsfeld. Click image to expand.
Donald Rumsfeld 

I am test-driving my new persona as petty pursuer of vengeance, who, in continuing to seek legal accountability for the architects of President Bush's abusive-interrogation, secret-rendition, and warrantless-wiretapping programs, fits neatly into Attorney General Michael Mukasey's classification as someone who is "relentless," "hostile," and "unforgiving." My desire to see an Obama administration dedicated to both investigating and, if needed, holding accountable the Bush officials who authorized torture, rape, and worse is seen as naive at best and ruinous to the Democrats at worst.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

There is a growing schism between the cranky legal purists and the pragmatic liberals who were delighted last week when two Obama advisers told the Associated Press that "there's little if any chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations." A Newsweek report this week confirmed that Obama advisers are pushing instead for a 9/11-style commission that would "investigate counterterrorism policies and make public as many details as possible." It would not be in keeping with the spirit of the new president, who reaches across the aisle, for him to do so with an arrest warrant in his hand.

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Part of me agrees with former Clinton prosecutor Robert S. Litt, who argued recently that pursuing Bush administration officials would be perceived as partisan and vindictive. "It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up." But I agree even more with Salon's Glenn Greenwald that to paper over years of brutal abuse and injustice in the interest of all getting along swimmingly is a piece of pragmatism America cannot afford. "How is this anything other than a full-scale exemption issued to political leaders to break our laws?" he wrote.

I want to agree with professor Kermit Roosevelt, who told Salon that the prospect of a blanket presidential pardon followed by a truth-and-reconciliation commission would have the salutary effect of "healing the country and moving forward," leading us toward "getting a clear picture of what happened and letting the public make an informed decision." But framing this question as a tension between getting the truth out and holding wrongdoers accountable is premised on a false choice. I fall in with professor Jonathan Turley, who argues that "there is nothing that brings out cooperative witnesses more than the threat of prosecution."

It's sweet and fanciful to think that with a grant of immunity and a hot cup of chai, Bush-administration officials who have scoffed at congressional subpoenas and court dates will sit down and unburden themselves to a truth commission about their role in the U.S. attorney firings. I agree completely with Charles Homans, who, in this must-read piece for the Washington Monthly, argues for the release of classified information at all costs. But I just cannot bring myself to believe that the full story will ever be told to our collective satisfaction. Even if every living American were someday to purchase and read the truth commission's collectively agreed-on bipartisan narrative, weaving together John Yoo's best intentions and Khalid Sheikh Mohammed's torment on the water board, sweeping national reconciliation will elude us.

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