Torture and the Rule of Law: Think Nelson Mandela

Attorney General Eric Holder should complete a full report about the conduct that would legally be called torture, about the facts of the cases — from the legality of the acts committed to whether major terrorist plots were foiled by this — and make recommendations regarding prosecution. Until then the president and his entire administration should declare a complete moratorium on all public opining about this subject.

Whatever is right, the president has lost control over the issue. He has now reversed his views, in a matter of days, first on whether prosecution of higher-ups should be pursued and second on the merits of a Truth Commission. The torture proponents on the right — and while they deny it they are torture proponents under commonly accepted law — are in full-throated anger mode. And the issue has become hyper-politicized while most people on all sides lack many key facts of the matter.

Personally, I think something must be done; a strong stand must be taken; an absolute precedent that torture is illegal must be certain; and deterrence to future acts of torture is fundamentally important. I am open-minded but inclined towards the Truth Commission as proposed by Sen. Patrick Leahy (D-Vt.) in the spirit of the South Africa Truth Commission that followed the end of apartheid.

Students of history should take a good look at the South African commission and how Nelson Mandela, one of the great men of world history, handled the balance between truth, justice and reconciliation.

For those who support torture, you are the dead of a rejected past advocating acts opposed by every previous president before Bush, virtually every commander of every branch of the service since Washington, heads of state around the world and the universally accepted principles of international law. Do you really support practices deemed war crimes when done by the imperial Japanese military against Americans and by Pol Pot against Cambodians?

For those who advocate criminal prosecution against every official in the chain of command, ask yourself these questions: Do Americans really want criminal trials organized by the current president against the previous president and virtually entire upper strata of the previous administration? Should we prosecute every head of state in every nation that knowingly allowed rendition to secret prisons for purposes of torture, and should the heads of state of every foreign nation that allowed secret prisons for purposes of torture also be prosecuted?

It’s easy for a politician to give one-minute speeches or put out press releases, and it’s easy for bloggers to blog about this or talk show hosts to talk taking one side or the other. But these are hard, hard questions at a time when we are embroiled in multiple wars, when Pakistan and Afghanistan are in very deep trouble with grave dangers to our security, and while the world economy is in the deepest recession since the Great Depression.

It is not healthy or right for the president to take multiple positions that change repeatedly.

Let’s begin at the beginning and have a total moratorium on opining by the president and his entire administration for now. Let the rule of law be pursued by the official in charge of administering the rule of law, the attorney general, and let him gather ALL the facts and reveal ALL the truths and make whatever he decides to make based on the facts and the law and based on a nation that honors the law and knows the facts.

Beyond that, a Truth Commission that is based on revealing all the facts and putting the nation on record once again against torture has merit, but be warned: it all depends on WHO is on the commission.

While I am not advocating a series of criminal trials for the past president and vice president, and in truth they will not happen in the real world we live in in the United States (though foreign jurisdictions might), for now:

1. Lawyers who prepared these torture memos should be disbarred immediately.

2. Jay Bybee should resign or be impeached as a federal judge because anyone who took the positions he took should never sit on the federal bench, or any bench.

3. We must make it clear beyond the shadow of a doubt for even the dimmest bulb on the tree that the United States of America NEVER does torture and that we, and the world, and the rule of law itself, demand the truth, the whole truth and nothing but the truth on this sordid matter that must never again occur in the land of the free and the home of the brave.

As for additional actions, let’s let the attorney general do his job. When we have more facts we can make more decisions, but anyone who believes these are easy calls is dangerously wrong at a dangerous time.

And let’s keep in mind Nelson Mandela, against whom incredible wrongs were done, and against whose people staggering crimes were committed, but who always believes that truth, justice and reconciliation can go hand in hand, hard as it may be.