David Broder’s argument against an investigation of Bush administration torture practices seems to me to be the definition of elite corruption:
Looming beyond the publicized cases of these relatively low-level operatives is the fundamental accountability question: What about those who approved of their actions? If accountability is the standard, then it should apply to the policymakers and not just to the underlings. Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock?
I think it is that kind of prospect that led President Obama to state that he was opposed to invoking the criminal justice system, even as he gave Holder the authority to decide the question for himself. Obama’s argument has been that he has made the decision to change policy and bring the practices clearly within constitutional bounds — and that should be sufficient.
In times like these, the understandable desire to enforce individual accountability must be weighed against the consequences. This country is facing so many huge challenges at home and abroad that the president cannot afford to be drawn into what would undoubtedly be a major, bitter partisan battle over prosecution of Bush-era officials. The cost to the country would simply be too great.
As if trying to discredit himself, Broder writes this after admitting that he “had no problem with the impeachment proceedings against Richard Nixon, and…called for Bill Clinton to resign when he lied to his Cabinet colleagues and to the country during the Monica Lewinsky scandal.” The U.S. also faced huge challenges at those time — and the alleged criminality of the Bush administration far surpasses Nixon’s, and is obviously of a far more serious nature than Clinton’s philandering.
As a purely legal question, it is, of course, not nearly “sufficient” that President Obama has reaffirmed U.S. obligations against torture. As Sen. Sheldon Whitehouse wrote, “the Bush administration has admitted to waterboarding captives. The corpus delicti of that crime exists. For there to be investigation now is unexceptional.”
The only exceptional thing is the parties involved: the former vice president of the United States, his counsel David Addington, Office of Legal Counsel (OLC) lawyer John Yoo and their private contractors Bruce Jessen and Jim Mitchell, psychologists who designed the torture program. But in America, high office does not put one outside the law. Indeed, it borders on unethical for a prosecutor to refuse to investigate the corpus delicti of a crime because of concern as to where the evidence may lead.
Given the evidence that’s already public, there’s little question that a wider investigation is warranted. While it’s true that such an investigation could and probably would create serious political difficulties, that in and of itself is no reason to avoid one. Broder’s argument against a wider investigation — which even he seems to recognize is warranted — is that it would create a whole big ugly, untidy scene in front of the kids.