David Broder has a piece in the Washington Post arguing that Obama is right to try to move the country away from prosecution of those who led the United States to torture terror suspects. I think Broder and Obama are both wrong.
Broder argues that
1) prosecution would amount to scapegoating.
2) the torture memos (that is, the torture policy) were the result of careful deliberate debate within the Bush white house.
3) prosecution would "set the precedent for turning all future policy disagreements into...vendettas."
4) The outcome of prosecution of Bush administration "underlings" would lead to the prosecution of President Bush, which is not desirable.
This is a silly argument, but it is one being made by a respected opinion-maker at one of the nation's leading papers. It's silliness must be exposed.
The "scapegoating" analogy is fascinating for its wrongness. The "scapegoat" comes from the Yom Kippur ritual described in Leviticus 16. The priest transfers the sins of Israel onto the goat, which is then set free to run into the wilderness carrying the sins of the community with it, thus purging Israel of its transgression.
The scapegoat, then, is burdened with the impurity of a sin that it did not (and, being a goat, could not) commit. There is no comparison between this and seeking to punish officials for the acts that they themselves committed.
Broder could have made a more interesting if imperfect analogy if he really wanted to hold onto the scapegoat idea: the desire to prosecute is misguided because it would punish a few individuals for the sins of the entire nation. This is not Broder's idea, but it might cause us to reflect on our own collective responsibility for allowing torture to result from our national anxiety and fear following 9/11.
The second argument, that we should not prosecute because even though the torture policies were wrong, they were the result of thoughtful deliberation, is also foolish. To begin with, it is increasingly clear the policies were not the result of thoughtful deliberation at all. Instead, John Yoo et al sought legal justifications for policies to which the administration was already committed. In addition, dissenting voices within the administration were shut out of the conversation so that their reservations about the legality of the torture policies would not stand in the way of the justifications being sought (See Jane Mayer's book The Dark Side for a fascinating and disturbing look at the internal debate in the administration.
But even if the administration policies were not post-facto justification for permitting torture, could we really say that their architects should be free from prosecution simply because there was a process of deliberation in place? No, we couldn't. Whether there was deliberation and debate is not the only issue. The other essential issue is whether that deliberation took place within a context of commitment to the Constitution and the rule of law.
Broder's third argument would prohibit prosecution of any wrongdoing at the government, or perhaps just the executive, level. A nation that subscribes to the rule of law can't possibly accept this notion, can it?
The response to the fourth argument is really a reiteration of the response to the third. If President Bush was responsible for acts that might be proven illegal, he should be prosecuted for them. We would be in serious trouble if the most powerful people in our nation were not subject to the law.
We learn in Pirkei Avot that we should be thankful for the government because without fear of it, human beings would eat one another alive. (By the way, now is a great time to read Pirkei Avot - its six chapters are traditionally studied between Passover and Shavuot). In our nation, the law is the government and if we fear to use the law to protect the values cherished by our people, we run the risk of social chaos - people eating one another alive.