I'm afraid I don't really see how this makes sense. It did make sense in South Africa in the 1990s for a few reasons: for one thing, Apartheid upholders weren't breaking any law at the time. Morally awful as they were, they were following the laws of South Africa at the time, and putting them on trial would necessarily have meant trying them under ex post facto laws, something which is dicey and is, by the way, forbidden under the United States Constitution. But in a broader sense the Apartheiders committed moral infractions on such a grand scale that it's almost impossible to come up with a law to fit their crimes. It's similar to upholders of slavery in the United States: what were you going to do, throw every White Southerner into jail? Clearly that could never have been a plausible course of action, and going down such a path would invariably lead to lots of witch hunts. So criminal action didn't make sense for South Africa after Apartheid.
These conditions do not apply to Bush-era lawbreakers. There were laws on the books against torture that were wantonly broken, so there is no worry about an ex post facto situation. And instead of the sort of massive injustice we were dealing with when we talk about slavery, in which an entire ethnic group was brutally subjugated and mistreated as a matter of government policy. Here it was still a small group of people who were definitely mistreated, to some extent because of ethnicity, but the scale is vastly different, and between Abu Gharaib and a reading of Jane Mayer's The Dark Side you can sort of get a handle on what the Bush Administration did. So I think that, aside from political messiness, prosecuting Bush Administration officials has to remain the preferred alternative. This doesn't mean that every CIA interrogator who dabbled in a bit of the dark side ought to be dragged in front of a jury--as far as they knew, they were following orders they believed to be legal. The architects of these policies--specifically David Addington, John Yoo, Dick Cheney, Alberto Gonzales and George W. Bush--ought to have to explain themselves to the people. I doubt this would happen unless subpoenaed and forced to testify under oath.
Of course, it will never happen, and a TRC isn't the worst of all possible worlds--it's not a bad consolation prize, and getting all of Bush's dirt into the public record forever ought to rightly preclude any posthumous resurrection of Bush's reputation. What confuses me about the Bush team's conduct on this is that they insist they got good legal commentary from John Yoo's shop, but they seem to be terrified of a full public airing of all of this dirty laundry. Why would they be, if they were acting according to the law? They're indirectly admitting that they knew Yoo's bullshit was just that: a thin veneer to break the law to "protect America" which, curiously, had not needed their particular brand of protection before they showed up.
One other thing that annoys me about the interrogation discussion is that the discussion always focuses on which methods to use (i.e. is waterboarding torture) rather than on whether interrogations are simply done effectively, like the FBI has been doing (and doing pretty well, by all accounts). What do you know, staffing federal agencies with competent folks who are serious about their jobs (as in the Clinton years) often makes a difference in keeping people safe. Or you can appoint Don Rumsfeld, George Tenet (yes, he was a Clinton appointee, but still), Feith, Yoo, etc., and get the results Bush got. It often seems like debates on interrogation policy revolve around finding some sort of magic bullet to get enormous scads of intelligence, but good old-fashioned intelligence and law enforcement seem to do just as well as any of the alternatives, and often better. And they don't require ceding our souls.
The Man, The Myth, The Bio
- East Bay, California, United States
- Problem: I have lots of opinions on politics and culture that I need to vent. If I do not do this I will wind up muttering to myself, and that's only like one or two steps away from being a hobo. Solution: I write two blogs. A political blog that has some evident sympathies (pro-Obama, mostly liberal though I dissent on some issues, like guns and trade) and a culture blog that does, well, cultural essays in a more long-form manner. My particular thing is taking overrated things (movies, mostly, but other things too) down a peg and putting underrated things up a peg. I'm sort of the court of last resort, and I tend to focus on more obscure cultural phenomena.