August 28, 2009
Attorney General Eric Holder is addressing a war crime without addressing the wars, and is focusing on the lowest ranking participants in that crime without addressing its status as official policy established by higher ups and openly confessed to by a former president and vice president. This is bad applism, the same approach that has held a handful of recruits responsible for Abu Ghraib, claiming to thereby remove bad apples from a good system. But Congress’ and the public’s approach to the horrors of the past eight years is driven by our own bad applism, by our belief that the departure of Bush and Cheney in itself significantly repaired a system of government that is rotten to the core.
As Holder left an appropriations subcommittee hearing on April 23rd I spoke up loudly from the third row: “We need a special prosecutor for torture, Mr. Attorney General. Americans like the rule of law. The rule of law for everybody.”
He replied as he approached me and walked by, surrounded by body guards, “And you will be proud of your government.”
I was joined by others in replying simultaneously, “Yes, we want to be proud of our government. We’re ready. No need to wait.”
Four months later, last Monday, Holder appointed a special prosecutor, but only for particular incidents of torture and with this important, and illegal, limitation announced by Holder: “[T]he Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel (OLC) regarding the interrogation of detainees.”
Even did our domestic system of government allow the OLC to create laws, our obligation under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed by President Reagan, ratified by the Senate, and made the supreme law of the land by Article VI of our Constitution, would prevent the creation of any law that permitted torture.
This decision by Holder had been publicly dictated to him by President Obama, and therefore sets a precedent of allowing a president to choose when laws should be enforced, and of allowing an aggressive political party to dictate such things to a defensive one.
For more on the American response — or lack of full response — to the knowledge that the American government knowingly permitted torture — and on the legal consequences of Holder’s policy for the Constitutional system — read David’s full blog post at Antemedius, and read Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union from Seven Stories.