Torture prosecutions must go forward

Former Vice President Dick Cheney, several months ago during an interview, allowed as how he thought the Obama administration would come to appreciate the increase in executive power that is the legacy of the Bush Administration.

What to Cheney was a rational, self-interested accumulation of power on the part of the executive, came to be seen by many Americans as a bald, almost totalitarian, power grab overriding the Constitution and its basis in the history of the rule of law in the West, from the Magna Carta on.

Be it privacy, freedom from unwarranted searches and seizures, the suspension of habeas corpus at the will of the executive, to imprisonment without due process or legal representation, secret dungeons around the world, renditions to countries where suspected terrorists could be tortured by the foreign sadists without us appearing to dirty our hands, to the outright torturing of captives with the permission of the president and his inner circle, executive power during the Bush years came close to destroying the Constitution and the human and civil rights of Americans and those who come under our jurisdiction.

Of the many reasons ardent Obama supporters voted for the new president, correcting the egregious imbalance of power accrued to the executive and returning the nation to the rule of law was on the top of the list.

And now those same ardent supporters, myself included, are waiting to see what the Obama administration plans to do about executive authorized torture and other dark activities in the struggle against terrorism. We know Guantanamo will be closed on the new president’s order. We knew he has said he is leaving issues of torture up to the attorney general, but we know that his policies will be the guiding force. We know that he has told the CIA in a public meeting, that his administration will not punish agents who acted on “higher authority.” We know that he has vowed to torture no more.

That’s admirable, but slack. When the Bush administration prosecuted and imprisoned seven low ranking military personnel, including Army Reservist Lynndie England, for prisoner abuse at Abu Ghraib Prison in Baghdad in 2005, it was an admission that torture was illegal. The hypocrisy of those prosecutions was devastating and left the door open, in public opinion, to prosecute the soldiers’ political superiors who authorized, and are still promoting even out of office, such illegal behavior.

How can you put Lynndie England in jail for doing what her vice president defends as pragmatic and necessary, and her president has denied ever happened?

What is the case for prosecuting Lynndie England’s political superiors? First, their hypocrisy makes them morally and legally vulnerable. Prosecuting low ranking service people was shameful scapegoating, while they hid safely behind the humiliation of their loyal subordinates. Truly disgusting.

Second, the torture issue is so essential and graspable that a highly visible public discussion of American values and ideals would result from the prosecution of members of the Bush administration. People who occupy the White House must be clear that their power is limited to the rule of law, not to the limits of legal trickery that allows presidents to evade the law.

And third, the American people need to know that they are in danger when the executive branch does anything it pleases, including torturing people in horrible ways, on the grounds of keeping America safe. Torture, like capital punishment so recently abolished in New Mexico, is an act of barbarity and savagery that debases a nation and its people. Americans need to know they, themselves, are safe from such an outrage. When your government gets away with torturing someone, make no mistake, they could get away with torturing you.

I know I am sounding like an American exceptionalist. And when it comes to living up to our highest ideals represented in the U.S. Constitution, I am. And I am part of vast network of Americans who feel the same way.

I don’t mean that my country has a right to more of the world’s goods and necessities than other countries. I don’t mean that I think America is better than other places, though I harbor in my heart a love for it that overshadows all others.

I do mean that I think we have not only a duty to love justice, to honor human dignity, and to never engage in barbaric practices, but a duty to ourselves to be the absolute best we can be as a nation. And being the best does not include torture, does not mean that we can degrade ourselves and join the sickening parade of brutal regimes around the world and in the past, regimes that we abhor.

When our government allows itself to torture those it considers our enemies, it offends the history of our moral striving, however inadequate and provisional that might be, and disgraces the Constitution.

But then the question will be asked, what would you do in such a situation, of being attacked and threatened as a nation, or having your own family endangered. Wouldn’t you torture someone to stop that from happening?

It doesn’t matter what I would or would not do. I am an individual, prone to anger and fear and frailty like anyone. I am not the United States of America. I am, individually, not the constitutional democracy in which my president is sworn to defend. Our founders considered our Constitution more important to our national health than anything else.

The 8th Amendment to the Constitution makes it clear that the founders were appalled by the “excesses” of executive power as practiced in past eras, and in other nations. They wanted more for their new country, and to be as far from the barbarity of “cruel and unusual punishments” as possible. So they forbade them. Such acts were below the high goals and exceptional ideals they believed our system of law should embody.

Water boarding someone five times a day or more for a month, containing people in tiny boxes, putting insects into containers with prisoners who are known to be terrified of bugs, making people stay in painful positions for hours on end — this is Orwellian, not American, and it does not obtain trustworthy information. There are other ways to extract valid and useful information which one can rely on, and everyone knows it.

The root of our Constitution, the Magna Carta of 1215, protected some English citizens from the excessive power of their king. Every school child used to know this. It guaranteed due process under law, trial by jury, and protection against cruel and unusual punishments — meaning torture.

Though it may not be politically expedient, America needs to undergo a national debate, a national cleansing, and a reestablishment of the Constitution as the secular rock upon which our national is built. A prosecution of those who abused executive authority would prevent future illegal excesses of this kind and focus our country on our ideals once more.