In a comment thread at Obsidian Wings, CharleyCarp makes a very important point about prosecuting Bush administration officials for making torture US policy:
“The people who think prosecution of these people is too divisive need to take into account their continuing conduct. They are trying to sow division right now. I’m not saying we should give in to them, but at a certain point holding back to preserve societal consensus isn’t on the menu.”
I think this is absolutely right. I do not think that we ought to fail to prosecute Bush officials because it would be divisive — I think that upholding the rule of law is more important than avoiding divisiveness, and besides, since any prosecution of high administration officials is always divisive, this principle would seem to me to imply that no high official should ever be punished for breaking any law. I think this would be disastrous. I also hate the idea of a double standard for the powerful and the powerless.
That said, some people, possibly including our President, do seem to think that it is important to avoid divisiveness. Anyone who holds this view ought to consider whether there is anything that, say, Dick Cheney might do that would render this consideration beside the point.
I don’t mean to suggest that we should prosecute administration officials because they seem to have nothing better to do with their time than accuse the present administration of willfully sacrificing American security. My argument all along has been that we should make the decision whether to prosecute on purely legal grounds; prosecuting people for being complete pains would be obviously abhorrent.
The point is rather that if one were already convinced that someone did deserve to be prosecuted, but were holding back in order to avoid divisiveness, there ought to be some point at which that impediment to prosecution ceases to carry any weight. And it’s worth asking where that point is.
Of course, were the administration to decide to prosecute high administration officials who had been criticizing them, that would carry political dangers of its own. (I have wondered whether Cheney is as outspoken as he is precisely to make it seem plausible that any prosecution of him would be an attempt to silence an administration critic.)
That’s why I have been in favor of appointing a special prosecutor from the get-go. Find someone of unimpeachable integrity, appoint him or her as a special prosecutor, make him or her completely independent, and let the chips fall where they may.