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Americans are receiving a new and unfamiliar lesson in constitutional government today. All those of us who were amazed by how the German government during World War II could have tortured and killed so many political undesirables without the German public rising up to stop it are starting to see more clearly now. And it is still inexcusable.
The Bush administration has clearly tortured detainees in its custody. First, its spokespersons pretended shock to hear such accusations, after all this is the U.S. Next, they tried a combination of denial and redefinition. President Bush said boldly, "The U.S. does not torture," and his cohorts at the Justice and Defense Departments set about parsing war crimes statutes and the Geneva Conventions. It did not seem to occur to them that the very fact of having to do so meant that a grim line had already been crossed. As is so often the case with crimes, once the act is commenced it snowballs ever larger with the attempts to conceal and justify it, producing more and more crimes in the process. So, we now have a president and an administration caught literally red-handed.
As if that were not bad enough, we are now beginning to hear that no one really has the stomach to prosecute these crimes. Sen. Obama says he would not want his first term of office clouded by what could easily be considered by Republicans an act of revenge. They, after all, were going to bring decency back to the White House in 2000. Who could blame them for bringing torture instead. 9/11 changed everything, right?
Whatever happened to our constitutional checks and balances? It used to be that if the Democrats messed up, the Republicans would run on a reform ticket and reverse the damage, and vice versa. What have we now? Sure there was torture and sure it was illegal, but we dare not do anything about it for fear of losing the swing vote? Is it possible that acts of torture will simply be ignored because they were done in the name of protecting us from terror. Torture in the name of preventing terror? Truly Orwellian.
Were the Republicans treating the country to the spectacle of impeaching a president for lying about sexual misbehavior to immunize themselves from prosecution for torture and war crimes? We may have been puzzled about whether lying about sex amounted to a "high crime and misdemeanor," but no one can have any doubt about torture and war crimes.
We seem to be waiting for President Bush to issue expected presidential pardons to all who could be accused of these crimes. It will probably happen in the last few days before the new president takes office. No doubt there is the hope that the excitement of a new administration might cause the public to overlook the pardons. But there do seem to be at least two remaining difficulties. First, to accept a pardon is to admit guilt. While the pardon recipient would automatically be protected from domestic prosecution, he or she would still be vulnerable in other jurisdictions, such as the World Court of Justice or even the courts of nations where the crimes occurred. Second, President Bush cannot pardon himself. Perhaps he could resign just a day before the end of his term so the new President-for-a-day Cheney could pardon him!
