[R-G] Waterboarding the Rule of Law

[Sid Shniad]

http://www.truthout.org/042809R 

Waterboarding the Rule of Law 

By Steve Weissman 
t r u t h o u t: Aoril 28, 2009 

Asked what he thought of Western civilization, the nonviolent Mahatma Gandhi 
famously replied, "I think it would be a good idea." Unless millions of 
Americans now demand better, we can say the same of "the rule of law." What 
a good idea it would have been, but - like the tooth fairy - it will not 
exist, not when competing priorities get in the way. The balancing - and 
trimming - is well on its way. 

Should a special prosecutor hold Bush, Cheney, Rice and Rumsfeld 
accountable for violating the law against torture when they specifically 
authorized waterboarding, sleep deprivation, stress positions and sexual 
humiliation of detainees? "No one is above the law," President Obama 
repeatedly tells us. But, prosecuting Bush & Co. would tear the country 
apart, the Republican chorus chimes in. And it would create a precedent for 
prosecuting future presidents whose policies we might not like, just as in a 
banana republic. 

Should Congress or a truth commission investigate torture and other war 
crimes so they will never happen again? Better not, the White House tells 
us. The country needs to look ahead and not to the past, and the 
administration needs to focus on fixing the economy and creating a universal 
health care system. 

Should Congress impeach former Deputy Attorney General Jay Bybee, now a 
federal appeals court judge, for giving his superiors the legal arguments 
they wanted to justify the torture they had already decided upon? Absolutely 
not, his defenders insist. Lawyers must feel free to give officials their 
best legal advice, and officials must feel free to get the legal advice they 
need. 

None of these alternative priorities are trivial. America should never 
criminalize differences over lawful policies. Obama and his administration 
should focus on ending the economic crisis and fulfilling his campaign 
promises. And senior officials should feel free to consult with government 
lawyers. But all these priorities must remain within legal limits, and none 
of them justify giving a pass to those who commit criminal acts, no matter 
how high their office. Either we uphold the rule of law or we make political 
priorities paramount. We cannot have it both ways, and we should stop 
pretending that we can. 

The stakes here go far beyond whether or not we torture our enemies, our 
suspected enemies and then our own people, though these are obviously 
life-and-death concerns. What should scare us even more is whether or not we 
maintain even the façade of democracy. 

In overriding the Geneva Conventions, other treaty obligations and 
American laws banning torture, the Bush administration explicitly claimed 
that the president could do whatever he thought necessary to full his 
constitutional obligation to defend the country. He was the decider in 
chief, and neither Congress nor the courts could overrule his decision. As 
Jay Bybee's torture memo put it, "the President enjoys complete discretion 
in the exercise of his Commander-in-Chief authority and in conducting 
operations against hostile forces." 

Right-wing legal ideologues call this view of sweeping and unchecked 
presidential power "a strong unified presidency." Those who believe in it 
would turn our chief executive into an elected monarch, and some proponents 
would even grant him or her the right to call off elections in time of 
crisis, real or contrived. Following this grandiose view, President Bush 
usurped powers that the Constitution does not permit, and his administration 
used those powers to commit other crimes, from torture to invading Iraq on a 
pack of lies. Do we prosecute Bush's power grab as a criminal violation of 
the Constitution? Or, do we accept a crime bordering on treason as just 
another policy decision with which we may or may not disagree? 

Either way, we set a precedent. Prosecute Bush, Cheney, Rice and 
Rumsfeld and we confirm that every future leader must operate within the 
rule of law. Give them a pass and their successors will feel free to rule as 
they will. The choice is clear, if only Americans have the courage to pursue 
it. My guess is that we do not, and that we will soon come to rue it.