Would torture prosecutions be too divisive?

[babylonsister]

By: Hilzoy

Division

In a comment thread at Obsidian Wings, CharleyCarp makes a very important point about prosecuting Bush administration officials for making torture US policy:

"The people who think prosecution of these people is too divisive need to take into account their continuing conduct. They are trying to sow division right now. I'm not saying we should give in to them, but at a certain point holding back to preserve societal consensus isn't on the menu."

I think this is absolutely right. I do not think that we ought to fail to prosecute Bush officials because it would be divisive -- I think that upholding the rule of law is more important than avoiding divisiveness, and besides, since any prosecution of high administration officials is always divisive, this principle would seem to me to imply that no high official should ever be punished for breaking any law. I think this would be disastrous. I also hate the idea of a double standard for the powerful and the powerless.

That said, some people, possibly including our President, do seem to think that it is important to avoid divisiveness. Anyone who holds this view ought to consider whether there is anything that, say, Dick Cheney might do that would render this consideration beside the point.

I don't mean to suggest that we should prosecute administration officials because they seem to have nothing better to do with their time than accuse the present administration of willfully sacrificing American security. My argument all along has been that we should make the decision whether to prosecute on purely legal grounds; prosecuting people for being complete pains would be obviously abhorrent.

The point is rather that if one were already convinced that someone did deserve to be prosecuted, but were holding back in order to avoid divisiveness, there ought to be some point at which that impediment to prosecution ceases to carry any weight. And it's worth asking where that point is.

more...

http://www.washingtonmonthly.com/archives/individual/2009_05/018134.php

[Echo In Light]

1. Didn't this country impeach a president over lying about who he was fucking?

[annabanana]

2. It is NOT prosecuting that is ripping the fabric of the Nation.

Knowing that we have this black rot at the very core of our Country is tearing us apart.

[Bucky]

3. It would be a HUGE distraction. That said, you don't get to pick which laws you enforce

The law's the law. Either we enforce it or we have to quit pretending we're a nation of laws and egalitarian values.

[zipplewrath]

5. Actually you do

It's called prosecutorial discretion and it's done all the time. There are huge numbers of laws that go virtually unenforced every year. In most US governments, the chief prosecutor (DA, AG, whatever) is a political position, and that is intentional. Criminal trials are listed as "The state vs...." Murder is seen as a crime against the state. Prosecution needs the support of the people, obviously especially the "jury of his peers", in order to be successful and useful.

That said, we are developing a history here where we "let people off" if they can stay out of court until their terms of office are done. From Nixon on, if you can get out of office before the charges are brought, you won't face prosecution. Did anyone do time for Iran-Contra? We politicize crimes so quickly that we immediately see the "punishment" as merely having to leave office. Unfortunately, and predictably, what this has created is the environment where those in power merely need to block the access to evidence until they are sufficiently close to being out of office that there is no political will to bring charges. Especially in this day and age of term limited offices, not to mention a return to "yellow" or advocacy journalism, we are rapidly achieving by default the kind of "unitary executive" that Nixon always claimed. If a president does it, it's not a crime because the executive branch decides what crimes are.

We need to prosecute these crimes. We need people to know, especially those that physically carry out the crimes, that the politicians cannot protect them in perpetuity. We will ultimately prosecute them. We don't want civil servants and soldiers to "follow orders" just because they think the current crop of crooks can protect them. We want them to question directions. And we want those who do stand up, who do resist, who do muster the courage to take the principaled stand, to know that ultimately their courage will be rewarded.

Prosecute them now. All of them.

[Bucky]

8. I said "enforce"

Prosecution is part of the judicial branch. Executive branch, being the branch with all the guns, should never get to pick which laws it enforces. It's a critical function of a government with checks adn balances.

[zipplewrath]

9. Prosecutors are part of the Executive branch

The department of justice is an executive branch and that's where the AG's are. The prosecutors work for the AG. The police function (which tends to initiate these actiions) is an executive branch. The judicial branch doesn't "enforce" laws, they merely render judgements. The executive branch even has the power of pardon and commutation. It was the explicit intent of the authors of our system of government that the executive branch be able to determine what laws, and when, to enforce. It was argued that the AG should be a separate office but that concept was rejected in the writing of the Constitution. In many states the state prosecutor, or AG is an ELECTED position specifically because it is the intent of our system of government that prosecutors need the support of the governed to exercise the powers of prosecution.

[billyoc]

4. I hope so, I want the divisiveness more than I want the justice.

That's How I Roll.

[ZombieHorde]

6. Too divisive for what? nt

[babylonsister]

7. For the average American's sensibilities? nt

[Echo In Light]

10. "Divisive" is Orwellian for INCRIMINATING. And the world knows it.

[Toucano]

11. Maybe. But I don't think it matters.

Those who supported the Bush regime will have to confront their complacency.

I think it is a lesson we have to learn or it will be repeated.