Palpatine's Perfect Crime

The new voice of the Republican party, Karl Rove, writing in the Wall Street Journal, accused President Obama of practicing moral equivalence in his foreign trips and not exulting American exceptionalism. The sheer chutzpah of the man, who is one of the key persons responsible for ending American exceptionalism probably once and for all ;first, through provoking the constitutional crisis of the 2000 elections; secondly, by his administration's institutionalizing torture in our defense doctrine; and thirdly, by his administration's adoption of the unitary theory of the executive as a constitutional model putting the US on the legal par with the Third Reich or more charitably the Mexican republic.

The day has been spent by pundits and politicians like Senator McCain decrying the possibility of a "witch hunt" in the prosecution of Bush officials involved in the torture policy. While fissures are appearing in the Fox News wall with opponents of torture appearing now and again,there is emerging serious discussions of not prosecuting the culprits. As the architect of the policy, Richard Cheney, used to say,"We will push and push until someone pushes back." While people are pushing back, Cheney may have the last laugh with the dizzying problem created in prosecuting anyone.

Consider the problem. Republicans are quite right when they say that the Democratic leadership in Congress was briefed extensively on these interrogation techniques and gave them at least a tacit approval. In effect, all party leaders are at least accessory to war crimes, if we get down to the blunt issue. The Bush-Cheney Administration wisely cast its net of accomplices long and wide, roping in participants through very shabby lawyering to legitimize their actions. Virtually, all major Bush cabinet officials, involved in foreign policy, were actors approving the torture techniques. The leadership of all the branches of the military services, while dissenting and raising doubts about both the legality and constitutionality of the torture police went along because their are commanded by civilians.

The total number of those involved directly in designing and legitimizing the torture program is in the dozens. Even if we narrowed our complaints to the close ring of lawyers and the medical practitioners, who went far beyond the ethical boundaries of their profession,we encounter the issue of them following orders, precisely the point where President Obama drew the line. To prosecute above this level ends up into what would perceived as a political trial with Democrats going after Republicans for what would be spun as "criminalizing policy differences".

It should be clear to any layperson the only person who understands all the parts of this process is former Vice President Dick Cheney, who with his chief of staff David Addington, developed the most horrendous aspects of this program and who used it to fabricate evidence to justify the war against Iraq. The Senate intelligence committee's first findings suggest that the intensity of waterboarding Abu Zubaida, Khalid Sheik Mohammed and others had nothing to do with locating Bin Laden or preventing another 9/11 attack on the U.S. Instead, the frequency of waterboarding was attributed to a quest for intelligence or simply a confession that Saddam Hussein and Al Qaeda had a connection. In other words, the interrogation program was part and parcel of ginning up material for the case for the war.

The problem here should be obvious. The Democrats have always claimed that the Iraq War took America's attention away from the fight against Al Qaeda and that our invasion of Iraq brought that group there where they had not been. Since the evidence was created through a war crime, its prosecution looks like Democrats ganging up to prove a political point. The other aspect of this was that the Democrats had a constitutional remedy called impeachment which Speaker Nancy Pelosi deliberately neglected to use, despite Dennis Kucinich's noble attempts to bring it to house members' attention.

Now the politically wise thing is to take President Obama's advice and move on. Unfortunately, there are more serious legal issues at stake here than in the days of Richard Nixon, where his helicopter flight into the sunset basically ended the story.
The United States deliberately violated the 3rd Geneva Convention, the Convention against Torture, the Convention against Political Rights and Civil Liberties, the Constitution of the United States, federal statutes against torture and war crimes, and other instruments of international and humanitarian law. A crude analogy is that the United States to actually do justice would have to hold a Nuremberg Trial of its own, even though we won the war.

In addition, there are international dimensions to this issue ,which can not be glossed over so quickly. The impending release of the uncensored photos of Abu Ghraib will bring the international community, quite properly back into the picture.The Iraq War was begun under a United Nations mandate with troops from several different countries and the treatment of detainees would fall under the legal jurisdiction of the United Nations, a Republican nightmare. That is why the European governments on a larger scale than just Spain are going to conduct an investigation into American treatment of detainees. Former Brigidier General Janis Karpinski's proposal of an international tribunal is not a far fetched one. This idea would be very hard for the United States to actively oppose even though Karl Rove asserts America's exceptionalism.

The call for prosecution is going to increase, not decrease as new materials find the light of day. Already the issue of murders at the CIA's black sites has emerged and is certain to draw more attention. Any further declassification of memos--even those that Cheney claims exonerates them--will intensify the discussion. There are scats more legal opinions that have not emerged in the public's eye.

The investigation and prosecution of the torture regimen has to be thorough, systematic and as depoliticized as possible despite the fact that all 'the witches" to be hunted are known and are ,regrettably, of one party. Then the decision has to be made by the Attorney General how to proceed. Unlike in the Bush Administration, Eric Holder was selected to restore some independence to the post of Attorney General so as to rectify the past situation. In one sense, Eric Holder has to select a notable person to establish the criminal charges and against whom. That person has to have a prestige that is above that of your average special prosecutor.

The second aspect of these investigations has to be public education, the deliberate elucidation of why these issues are both unconstitutional and unlawful as well as outside of the American tradition. It would also be useful as to why cleansing ourselves of these crimes might restore our American exceptionalism. In the City on the Hill, there is no room for torture or hidden jails, something Mr. Rove forgot.

The most therapeutic point of this whole exercise is to have it completed in a reasonable time frame, where the political and educational points are clearly made. Only human rights advocates and international lawyers paid attention to the long and arduous trial of Milosovic, which ended in his death,no verdict and no resolution.

My suggestion remains to focus the trial on the lawyers and doctors with the public record and investigation detailing the complicity of the Bush officials in this doctrine.