My Allegedly Vengeful Heart

In an unprecedented, shocking development, David Broder is against any sort of accountability for what he refers to as “torture”:

“If ever there were a time for President Obama to trust his instincts and stick to his guns, that time is now, when he is being pressured to change his mind about closing the books on the “torture” policies of the past.”

I normally think that there’s a presumption in favor of enforcing the law, and that people who think it should be ignored have the burden of proof. So what sorts of arguments does Broder offer in support of his view? Well:

“Obama is being lobbied by politicians and voters who want something more — the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps — or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.”

To which I have two responses. First, who died and made David Broder Sigmund Freud? How on earth does he presume to know what the actually motivates those of us who think that the people who authorized torture should be investigated? Speaking for myself: I have never met David Broder. As far as I know, he has no idea that I exist. So how does he know that underneath my “plausible-sounding rationale” lurks “an unworthy desire for vengeance”? And how, stranger still, does he presume to know this about everyone who thinks this — a group that (as Greg Sargent notes) included 62% of the American public before the latest memos were released?

Second: let’s just stipulate for the sake of argument that all of us who favor investigating torture do, in fact, have “an unworthy desire for vengeance”. So what? Suppose our “plausible-sounding argument” is actually true: “without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations.” In that case, by not investigating torture now, we would be setting ourselves up for future government lawbreaking. Isn’t it obvious that preventing this matters more than anyone’s motives?

What matters is whether this is the right thing to do. If it is, then we should do it. If it isn’t, then we should not. Motives don’t matter here — any more than it would have mattered if some of the people who favored getting into World War II had an unreasonable hatred of Germans in general, or the people who brought Brown v. Board really just wanted to get into the history books.

Broder’s best stab at an actual argument is this:

“The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places — the White House, the intelligence agencies and the Justice Department — by the proper officials.

One administration later, a different group of individuals occupying the same offices has — thankfully — made the opposite decision. Do they now go back and investigate or indict their predecessors?

That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness — and injustice.”

When people talk about “criminalizing policy differences”, there’s a crucial, question-begging assumption, namely: that no one actually broke the law. If that’s right, and if we know that it is, then of course investigating previous administrations for law-breaking is just a “vendetta”. But whether or not laws were broken is precisely the point at issue.

If laws were broken, then the fact that they were broken as the result of “a deliberate, and internally well-debated, policy decision, made in the proper places” is no excuse — if anything, it makes investigation and prosecution all the more important. And it also means that the people who favor prosecution are not the ones who “criminalize politics”. That honor goes to the people who broke the laws while holding public office.

If we care about the rule of law, and about the idea that ours is a country of laws, not of men, then we should investigate those who break the laws, especially when they hold high office. The Presidency is a public trust, not a license for criminality.