Friday, July 31, 2009

Holder: "Waterboarding is torture." Now what?

I'm really not sure what to make of this.

HOLDER: I have said that waterboarding is torture. If one looks at the history of that practice, I don't see how you can reach any other conclusion. I think the department, at least some of the people who worked here, simply lost their way. We will not criminalise policy differences. We will follow the facts of the law wherever that takes us.

INTERVIEWER: Do you think you have the independence to do that if you need to make that call?

What does he mean when he speaks of "policy differences"? Torture cannot be written off as mere "policy differences". The United States entered into binding international treaties promising that it would not torture and that it would prosecute anyone who took part in torture or who facilitated torture.

This is a matter of law. Holder talks a great game, but if he's going to dismiss torture as a mere "policy differences" then he can say whatever he likes but he's not upholding the law.

There are some who say that this view is utopian. That it is unrealistic to expect that presidents should be liable to prosecution if they broke the law whilst defending the nation. But, there are some things which the US Constitution demands, even of presidents.
We don't have to guess what those principles are. The Founders created documents -- principally the Constitution -- which had as their purpose enumerating the principles that were to be immunized from such "practical considerations." All one has to do in order to understand their supreme status is to understand the core principle of Constitutional guarantees: no acts of Government can conflict with these principles or violate them for any reason. And all one has to do to appreciate their absolute, unyielding essence is to read how they're written: The President "shall take Care that the Laws be faithfully executed." "[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." "Congress shall make no law . . . abridging the freedom of speech." "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." "No person shall be . . . deprived of life, liberty, or property, without due process of law." Even policies which enjoy majoritarian support and ample "practical" justification will be invalid -- nullified -- if they violate those guarantees.
This is a pivotal moment in US history. Both the president and the vice president have admitted to committing war crimes. Nixon once famously said that, "When the president does it, that means that it is not illegal." Holder is in the unfortunate position of deciding whether or not Nixon was right. And, if he decides not to prosecute, then he proves that Bush was also right when he stated that the US Constitution was "just a goddamned piece of paper!"

Because if Bush and Cheney can blatantly commit war crimes and walk away unpunished, then the US Constitution is rendered meaningless. Because no-one is left upholding it's values.

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