Shine a light on the dark side

I've been thinking a lot about Richard Cohen's op ed piece in the Post of January 27. The issue of what to do about the fact that our government tortured others has engaged many as we grapple with the reality of our actions. There appears to be a gathering consensus that prosecution is the less favored approach and that commissions should be convened to find out what happened, why and what to do about it "going forward". After all, we were all afraid after 9/11 and that must be kept in mind.

Ok, so let's for the moment consider the implications of no prosecution of those who broke the law. When we are afraid then we don't have to follow the law - or are excused? How do we know we should be afraid at all? We don't have access to corroborating evidence that our leaders kept us safe by waterboarding. Does this also mean that treaties and laws only are followed when we aren't in a position that we have to make a difficult choice?

It may be useful to at least make a distinction between a government policy on torture and a decision by an individual actor who "saves thousands" by torturing and then submits themselves to justice. In this case the policy follows the law, the individual breaks the law but perhaps has defenses in case of prosecution.Cohen makes a good point that we (Congress) endorsed torture by not enforcing laws and treaties.

The recently released memos on torture and FISA from within the Bush administration show the concern for having a legal rationale to act contrary to treaty - like the Geneva Convention. Our Constitution directs that treaties are the law of the land in our country. But legal advice that something is okay still requires an independent decision; it can serve as a defense but not absolution. Have we forgotten Justice Jackson's instruction at Nuremburg?

So what then constitutes justice? What do we do now if we find 1) no evidence to even remotely rationalize torture, 2) that legal rationale was severely flawed - as it almost certainly was, and 3) that deciders knew they were violating the law and proceeded anyway? Already we are drifting away from the hard issue toward unwarranted absolution.

In the end, why do we care? Because - government by laws and not men is the rock upon which our entire civilization was built, since ancient Greece and Rome. Our Constitution cannot be compromised without serious consequences for our national structure and character. It is clearly a moral issue, and we all desire to hold America out as an example to the world. Committing a heinous act against another takes us to the level of those whom we despise - or fear - and we are diminished. After all, should we follow the mass hysteria or defer to the law, and principle?

If we don't take explicit action to prosecute those who took us to the dark side, when faced with this in the future to what lessons or precedent will we turn?

It was torture then; it was illegal then; it was immoral then. Whatever we do, we should hold people accountable. Otherwise, we may look to Cassius' admonition, "the fault dear Brutus, is not in our stars, but in ourselves."