America, Be Not Afraid to Look Behind You

Appearing in a New York Times op-ed column, Slate Magazine’s Dahlia Lithwick says Americans would rather turn the page than prosecute top Bush officials for war crimes and other atrocities. The crux of her argument is that this hope of “rebooting” the government, of preferring to recover, is not found in the language of law. There is no legal justification for not investigating or prosecuting senior officials who have authorized torture and warrant-less surveillance.

Americans want to focus on the brighter future that hopefully lies ahead, not dwell on our dark past. As Ms. Lithwick notes, however, that would be a mistake:

Nobody is looking for a series of public floggings. The blueprints for government accountability look nothing like witch hunts. They look like legal processes that have served us for centuries. And, as the Armed Services Committee report makes clear, we already know an enormous amount about what happened to take us down the road to torture and eavesdropping. The military has commissioned at least three investigative reports about the descent into abusive interrogation. Michael Ratner, the president of the Center for Constitutional Rights, has compiled what he believes to be sufficient evidence to try senior Bush administration officials for war crimes…

It’s not a witch hunt simply because political actors are under investigation. The process of investigating and prosecuting crimes makes up the bricks and mortar of our prosecutorial system. We don’t immunize drug dealers, pickpockets or car thieves because holding them to account is uncomfortable, difficult or divisive. We don’t protest that “it’s all behind us now” when a bank robber is brought to trial.

And America tends to survive the ugliness of public reckonings, from Nixon to Whitewater to the impeachment hearings, because for all our cheerful optimism, Americans fundamentally understand that nobody should be above the law. As the chief prosecutor for the United States at the Nuremberg trials, Robert Jackson, warned: “Law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power.”

At the Senate confirmation hearing, Eric Holder said that “waterboarding is torture.” Is Holder and the Obama administration prepared to bring these people to justice? Can the American people stomach the potentially difficult process? We must all remember that, as Mr. Holder said at his confirmation hearing, “no one is above the law.” To not investigate or prosecute these officials to the full extent of the law is to establish a dangerous precedent.

There is no immunity for war crimes, even when allegedly done for the sake of national security.

All Eyes on Holder

Since the days of Alberto Gonzales, the Department of Justice, and particularly the Office of the Attorney General, has tainted, to say the very least, the United States judicial process. In the Bush years, torture and CIA black sites have become somewhat synonymous with the war on terror.

That’s why today’s Senate Judiciary Committee hearing on Eric Holder’s nomination for US Attorney General is so significant. Immediately, Holder’s responses established a position, both a legal and a philosophical one.

These were Chairman Leahy’s first two questions, and Holder’s answers to them:

Is waterboarding torture?

“Waterboarding is torture.”

Can the commander-in-chief override a law, in the name of national security, to allow this form of torture?

“No one is above the law.”

Hopefully this is the beginning of the cleansing process. Hopefully we will reconstruct our image as a nation of laws.

Mr. Holder, our eyes are on you.