I am ambivalent about whether members of the Bush Administration who authorized torture should be prosecuted.
Bruce Fein makes a powerful case for just that on the principle that torture violates treaty obligations and US law as well. We are a nation of laws, and lawbreakers should be held accountable for the sake of national integrity and to show the world who we are.
Yet troubling questions arise. Is he saying that if we openly renounced our treaty obligations and changed our laws, torture would be OK? I don't know. But his repeated emphasis on the centrality of law makes me wonder if he has gone too far in absolutizing law as a final referent.
In any case, I would assert that there is a higher principle than law, namely, morality, which is the ultimate justification of law, though not necessarily the only one. I am not sure Fein would disagree. I do oppose those who say that policy differences should not be the occasion of criminal prosecution. Nonsense! If laws have been broken, more than policy disputes is involved.
Setting all this in a larger context may be instructive. It may relativise a narrow focus on the primacy of law. Consider the use of drones by the US in recent days to bomb Pakistani targets. More to the point is the fire bombing of Dresden and of Tokyo in WWII. Many tens of thousands of civilians were killed. Surely these were acts of terror against non-combatants, whatever military targets might have been involved. We have not yet mentioned Hiroshima or Nagasaki where we became the only nation to this day to use nuclear weapons.
And the Nuremberg Trials? Were they in accordance with law? Or did the law emerge along with the proceedings so as to be ex post facto? Prosecution of the Allies was forbidden for any similar acts, thus becoming what the critics called "victors justice."
All of these are exceedingly complex and controversial. issues. That is exactly my point. It is too simple, I think, to demand prosecution of the Bush torture authorizers as a violation of law as the sole justifying principle.
I am inclined to think that, on the whole, it is preferable to denounce torture, renounce its future use, and take steps to see that it does not happen again. To be fair, prosecution would have to include Cheney and Bush, and this would severely divide the country in a time of economic crisis at home and grave threats abroad. Pragmatically, in the presence of so much ambiguity, complexity, and contradiction at the edge of morality, which course of action would be relatively better for the nation and the world? I conclude that it is more important to give attention to these enormous and challenging problems than to get involved in past acts.
But Bruce Fein makes a powerful case.