How to get the torturers.
It needs to be said and understood that no country - not one, not ever - has managed to domestically prosecute crimes committed as a matter of policy by its own government and military against foreign nationals.
There are a few examples of overthrown regimes being prosecuted for crimes against their own people in civil wars or internal genocides, and one of a defeated nation (Germany, specifically) continuing to build on prosecutions begun by an occupying foreign army. But no surviving state - neither overthrown domestically nor destroyed and occupied in war - has ever undertaken a general prosecution of former high officials, military commanders, and intelligence leaders who committed crimes against foreigners.
So what we are seeking to do by holding the Bush regime, the Pentagon, and CIA figures accountable for committing torture and murder against terrorism suspects is uncharted territory, both for the United States and for the world. That's not a reason to balk, but acknowledging it does separate the serious from the blowhards.
Now, to begin, we have to ask a question: What's the holdup? Why have these prosecutions never happened, and why are they not happening now? The answer is simply that there are thousands of bureaucratic, diplomatic, military, and intelligence accomplices to these crimes who don't particularly want their role revealed, and would be able to create chaos within their respective institutions if they felt threatened. There are thousands of officials in foreign governments who don't want their roles revealed, and can apply diplomatic pressure to see that they aren't, with considerably damaging consequences to diplomatic relations if they feel threatened.
And all of them ripple outward: The damage those people can do causes political leaders to weigh the cost against what they might regard as the largely abstract or theoretical reward of prosecuting, and find the cost/benefit analysis wanting. They're wrong if they think that, but their view is predictable. To put it bluntly, justice is blocked by the fact that entire institutions are guilty, and those institutions are indispensable in the estimation of both the government and the general public. So to accomplish "sufficient justice," the truly guilty have to be separated from the merely corrupt, the henchmen from the conspirators, and priority choices made.
The vast majority of people who would objectively be accomplice to crimes will have to be let off, and not even in the sense of being given deals - in the more absolute sense that they will need guarantees their names will never even be mentioned. In fact, most likely all accomplices will have to be given such guarantees, and only the most important of the central figures pursued. But that introduces a wrinkle: How do you establish the facts of a crime if accomplices are not mentioned? The answer is "With difficulty." Too bad - way it goes.
Activists have been ineffectually demanding prosecution for a decade because no one is playing the political inside game to make it feasible. You have to politically isolate the central actors, and deprive them of the webs of interest that protect them. You have to convince CIA agents who routinely commit other forms of crime "for their country" (in their minds) that this would not mean open season on them and their operations. That's easy enough, but it gets more painful when you realize we have to convince those peripherally involved in the torture - even knowingly so - that they too would be kept out of it.
And then you have to add the stick to the carrot, which has been just as absent: Somehow make it true, or at least plausible, that if they still refuse to cooperate and give us the central figures as sacrifices for their continued impunity, they will all be targeted and brought down. That will require convincing them that we can deliver a political environment willing and able to send the CIA and Pentagon into years of turmoil if they continue wielding their influence to protect the torturers: Difficult, given our continued failures to keep or take back Congress, but not impossible.
Achieve that, and they will deliver prosecutions on a silver platter. They have no compunction about offering up "sacrificial lambs" for the greater good of the institution when politics demands it, so they must be convinced that this is such a situation.
These are all general thoughts, but the details are infinitely more complex.
The inside game has to begin humbly, with at least one Senator and one person in the Justice Department. The most likely Senator is Al Franken, since he's on the Judiciary Committee, but he might be too obvious since the effort has to be under the radar for a considerable amount of time - it's a question worth exploring further. The DOJ element has to be someone with authority but little spot-light on them. Each of them, and each other contact developed for the effort, needs to have a specific purpose that you evolve as part of a larger plan.
Basically the function of the network that's built for this purpose has to be subtle, confidential dialog with people inside the institutions involved, to convince them of what they need to be convinced of - as mentioned above. To begin, find a mid-level criminal in the torture conspiracy whose institutional connection is as simple as possible: Who can only call on the loyalty of one or a few other people, and no one of significance. Clandestinely cut those ties one by one, isolating this person by putting them out of favor and making clear that there would be costs to protecting them.
Keep the objectives of the game hidden as long as possible while you do the same for larger and larger characters, pruning institutional networks to isolate targeted operatives and officials.
Then you convince whoever you've got at the Justice Department to indict the easiest targets on the list, without the permission of the Attorney General (whoever it is at that point) if necessary. Since you've hopefully neutralized a lot of the institutional opposition to prosecutions, specifically for these lower-level figures, the Attorney General might at that point just go along with it even if they aren't necessarily favorable toward it. The only other alternative would be firing the subordinates responsible and torpedoing the cases, but that would destroy their own career and make them historically infamous. So most likely you get those cases.
Unfortunately, the integrity of the cases would be under constant attack by hostile elements in the DOJ trying to sabotage the prosecution and also create legal pretexts for appeal. Keeping those people away and making the proceedings air-tight at every single stage would be extremely difficult, and would fail in some instances. There's nothing for it but to try.
Now, you can't move quickly after that. You just have to pursue these "easy" (i.e., extremely hard but not quite as cosmically fucked as the topmost) cases, and build up some kind of bulwark of convictions and facts. As that develops, over many years, then you can use the same strategies to pursue a higher slate of criminals. And then another. Some day you'll be ready, both politically and judicially, to go after the key figures of the Bush White House. It might be sooner than you think, or it might be decades. But if it's truly your objective, then you pursue it as long as it takes.
There are undoubtedly already legal professionals committed to pursuing this, and activists committed to it, and a few political leaders committed to it, but there is currently no strategic inside game to make it happen. Someone has to clear the way for these legal mechanisms to function by removing the institutional motives to block it. People have to team up and work in the toxic air of cynical political gaming to make it happen.
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