"Jack, you want to prosecute a member of the Bush administration for assaulting suspected terrorists?"
"The word is 'torturing.' And yes — it's about time somebody did."
If you watch Law & Order tonight, you'll see that the "Jack" laying down the gauntlet on accountability for torture is veteran district attorney Jack McCoy. What McCoy understands is that in America, the rule of law applies to everyone. No one is above the law, not even (and some might say especially) the most powerful.
In this fictionalized but typically "ripped from the headlines" episode, McCoy decides to prosecute an author of a Justice Department legal memo authorizing torture, as well as his co-conspirators up the chain of command, including Vice President Cheney. ("This is an instruction on how to commit a crime and avoid prosecution," says McCoy's assistant D.A., referring to the torture memo. "A surgical parsing of words to draw hair-splitting distinctions between severe pain and extreme pain." "I know what we're talking about, sir. I don't need a memo to tell me what torture is," says a retired Army captain.)
In real life, there has yet to be an investigation into the high-level authorization of torture, a crime that has stained the reputation of our nation at home and abroad.
Last month, Attorney General Eric Holder appointed a special prosecutor to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of some specific detainees. It was a good first step and a positive sign given President Obama's commitment to "looking forward" at the unfortunate expense of enforcing the law. But a narrow investigation limited to interrogators and contractors in the field is woefully inadequate. There is voluminous information already in the public domain that the Bush administration's torture program was widespread, systemic and authorized at the highest levels of government. This evidence comes from congressional reports, the Justice Department's infamous legal memos and the CIA inspector general report released as part of ACLU litigation, detainees' accounts and even the boastful admissions of officials, including former vice president Dick Cheney, who has been aggressive in his defense of waterboarding.
But notwithstanding all this evidence, there are still those who would reduce the authorization of these crimes by government officials to discretionary policy decisions. And the attorney general appears to be clinging to a "bad apples" approach and resisting a thorough criminal investigation of not only those who committed torture, but also those who authorized and legally condoned it. Yes, these are weighty and politically fraught decisions. But once we start compromising our principles and laws because it is too messy, too inconvenient or even too painful to enforce them, we render them meaningless.
We cannot move forward confidently knowing that the abuses of the past will not be repeated by future administrations if everyone knows that crimes were committed and that the powerful who perpetrated and enabled them got off scot-free. A failure to prosecute those responsible for torture - those who authorized it, those who legally sanctioned it and those who carried it out — would essentially serve to ratify illegal behavior by government officials. The attorney general should launch a full-scale criminal investigation that will follow the facts where they lead, whether it be to prisons overseas or to the halls of power at home.
Tonight's Law & Order episode (8 p.m. on NBC), through its script, takes on the need to look ourselves squarely in the eye. "It's hypocritical to defend our values with torture," says the retired Army captain. "[W]hat is it about this country that you don't get?" asks the assistant D.A. of the lawyer who wrote the torture memo.
Toward the end of the episode, the assistant D.A. declares, "[I]t is not disloyal to hold our officials to the highest standards of conduct."
Indeed. In fact, it is the epitome of loyalty and patriotism to do so. Now the question is, in real life, will Attorney General Holder rise to the occasion?