Failing to prosecute the authorization of torture would be politicization.

[JDPriestly]

If the Obama administration does not prosecute the torture, then it is tacitly agreeing that Bush's authorization of the torture was simply a policy and that the prosecutions would politicize policy differences. That is false. Prosecutions would not be about a policy disagreement. Prosecutions would be about criminal conduct, pure and simple.

Why am I explaining my views on this simple question at such great length? Because I think that the Bush apologists are succeeding in muddying the waters with their accusations that prosecutions of the authorization of torture would be politicization of a policy difference. In fact it is the Bush apologists who are politicizing a pretty clear-cut criminal matter. I suspect that the shift in polling data that suggests that the public is now less opposed to torture is based to a great extent on the confusion about whether our support for prosecutions for the authorization of torture is just politics.

I haven't heard anyone respond to this facetious argument in a forceful way. I don't know whether that is because the error of the argument is embarrassingly obvious or because no one knows how to respond. So, here is my all too long and all too elementary opinion on this.

At the time that the Bush administration authorized the torture of prisoners, some of the specific acts that were authorized such as waterboarding and those that resulted in death were clearly illegal under both American and international law. At various times in history, the United States has prosecuted acts of torture of some of the kinds that the Bush administration authorized.

That the Bush administration knew that the acts were criminal was established when members of the U.S. military who used some of the torture methods that Bush authorized at Abu Ghraib were convicted for using those methods, and the Bush administration did not object to the prosecutions. Arguments that the United States secretly tortured or encouraged or permitted torture in the past do not change the fact that torture, however secret, is and was illegal.

Although I am not a criminal lawyer, I view torture as a rather ordinary crime because, among other things, it is an "aggravated" form of criminal assault. I use the term "aggravated" because the torture victim is completely subjugated to and controlled by the torturer and, in addition, because the crime is committed with devices or weapons constructed specifically for the purpose of assault and torture. Further, the torture in question was performed in a methodical, calculated manner demonstrating the special criminal intent of the torturer. In any event, it is an assault on a defenseless person.

The criminal justice system can be politicized in two ways: 1) by prosecuting an act that is inherently not criminal merely to embarrass a political opponent or to gain a political advantage, or 2) by declining to prosecute a clearly criminal act because of the political power of the person who committed the act.

Apologists for the Bush administration's acts of torture appear to argue that whether the acts that were authorized constituted torture was a matter of policy about which people can disagree. Therefore, they suggest, since people have different opinions about the underlying policy (about whether torture or at least the specific acts in question should be legal and whether they were justified by the circumstances), to prosecute those who authorized or committed the torture would be political.

Their argument is not persuasive, and here is why. Let's say that we disagree about whether growing marijuana should be a crime. That is a disagreement about policy. Let's also say that neither of us has grown marijuana or committed a criminal act. If one of us were prosecuted for expressing our opinion on that policy issue or for advocating for one policy or the other, that prosecution would be political. If one of us were prosecuted on some bogus charge in order to silence us, that would also be a political prosecution.

Now let's say that there is a law making it a crime to grow marijuana, and it is discovered that a high ranking member of a governor's administration is cultivating marijuana. Would it be politicization for a prosecutor to bring charges against the politician for growing the marijuana? No. Enforcing the existing law by prosecuting the person, even a politician, growing the marijuana would not be politicization. In fact, if the prosecutor brought charges against Farmer Brown for growing marijuana but declined to bring charges against the politician for growing a similar amount of marijuana in a similar situation, that would arguably be politicization.

Similarly, here, since low level members of the military have been prosecuted for committing acts of torture similar to those that the Bush administration authorized, it would actually be politicization to decline to prosecute those who authorized the torture. The decision not to prosecute would most likely be made for political reasons to protect powerful individuals or to avoid the wrath of those individuals' political supporters.

Therefore, I would argue that by failing to prosecute those who authorized and committed torture, the Obama administration and Attorney General Holder would be politicizing the torture. If politicization is to be avoided, then those crimes must be prosecuted.

Whether the torture was worthwhile, whether the benefits of the torture outweighed the cost of torturing -- are policy considerations. People are entitled to express their opinions on those matters. And, if Congress determines that torture should be permitted in the future, that it should be legal, then Congress may make a policy decision and legalize it pursuant to Congress's powers under Article I of the Constitution. But, until that time, prosecuting torturers does not politicize anything. Declining to prosecute torturers if the facts and law suggest that prosecutions are appropriate would.

[cali]

1. yes it would be.

no doubt about it.