In a must-read post today, Glenn Greenwald challenges Ruth Marcus and the establishment Washington consensus, in which the pursuit of war crimes charges against soon-to-be-former Bush officials is arbitrarily dismissed as either too polarizing, too partisan, or just too goddamn difficult to successfully prosecute, and thus should be preemptively abandoned. Greenwald explains why this virtually ensures the perpetuation of an unlawful historical feedback loop:
Along with the desire for just retribution, one of the two principal reasons we impose penalties for violations of the criminal law is deterrence — to provide an incentive for potential lawbreakers to refrain from breaking our laws, rather than deciding that it is beneficial to do so. Though there is debate about how best to accomplish it and how effective it ultimately is, deterrence of future crimes has been, and remains, a core purpose of the criminal law. That is about as basic as it gets. From Paul Robinson, University of Pennsylvania Law Professor, and John Darley, Psychology Professor at Princeton, in “The Role of Deterrence in the Criminal Law“:
For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime.
Punishment for lawbreaking is precisely how we try to ensure that crimes “never happen again.” If instead — as Marcus and so many other urge — we hold political leaders harmless when they break the law, if we exempt them from punishment under the criminal law, then what possible reason would they have from refraining from breaking the law in the future? A principal reason for imposing punishment on lawbreakers is exactly what Marcus says she wants to achieve: “ensuring that these mistakes are not repeated.” By telling political leaders that they will not be punished when they break the law, the exact opposite outcome is achieved: ensuring that this conduct will be repeated.
Every time we immunize political leaders from the consequences of their crimes, it’s manipulatively justified in the name of “ensuring that it never happens again.” And every time, we do exactly the opposite: we make sure it will happen again. And it does: Richard Nixon is pardoned. J. Edgar Hoover’s lawbreakers are protected. The Iran-contra criminals are set free and put back into government. Lewis Libby is spared having to serve even a single day in prison despite multiple felony convictions. And now it’s time to immunize even those who tortured detainees and spied on Americans in violation of numerous treaties, domestic laws, and the most basic precepts of civilized Western justice.
One would hope to see those individuals who have been granted a national platform that allows them to have a measurable impact on the tone of discourse in Washington be responsible and advocate on behalf of the rule of law. Instead, they collectively sigh, texturally furrow their brows over how hard it is to do the right thing, before finally settling for the cold, easy comfort of doing nothing (shades of grey, children. Shades. Of. Grey.) In an article published yesterday by McClatchy Newspapers, Marisa Taylor starkly lays out the logical consequence of elite apathy towards defending the rule of law:
Without wider support, the campaign to haul top administration officials before an American court is likely to stall.
What this says to the nation, and the world, about the US and its lack of commitment to justice, human rights, and the rule of law is nothing short of staggering. As Loyola war law expert David Glazier put it,
It is mind boggling to say eight years later that there is not going to be some sort of criminal accountability for what happened… . It certainly undermines our moral authority and our ability to criticize other countries for doing exactly the same thing. But given the legal issues and the political reality, I am hard pressed to see any other outcome.
And because our gatekeepers of ‘reasonable’, ‘serious’ discourse can’t begin to envision any viable course of action other than forgive and (try our goddamndest to) forget, all of this–state-sanctioned torture and rendition, unlawful domestic surveillance, an unnecessary war in Iraq that, thus far, has killed well over a million people–has, in effect, been green-lighted twice. First, by Bush, Cheney and the rest of those who felt that burning the Constitution was the only way to save it. Then, retroactively, by those in the Beltway press corps, elite Washington society and–most egregiously–the incoming Democratic administration, all of whom would apparently rather practice their statesman-like ostrich pose than risk disrupting the inertial ebb and flow of their delicate political ecosystem.