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The ACLU has let us down on The Rule of Law

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I’m angry.

This isn’t new. I’ve been angry for about 11 years now. It ebbs and flows, depending on the news, but it’s always there. I wish I had some handy object to be angry about, instead of an ever present sense that the thing which pissed me off wasn’t miasmic.

The proximate cause of this round of more present anger isn’t, actually, the report which the senate released about the torture the US engages in. Nah. There isn’t anything new in that; not to me, nor to anyone who has been paying attention for the past 10 years. No, what angers (and saddens) me is larger than that. It’s about the rot at the soul of the country.

I am not a naif. I know (and knew long before Khandahar and Abu Ghraib) that the US allowed people to get away with torture, and that some branches of the gov’t were sanctioning it; even if they weren’t doing it themselves.

Pinochet, and Pahlavi, and Samoza, and Marcos, weren’t just people we put up with being bastards. They weren’t just bastards we supported and encouraged: they were all bastards we put into power (which wasn’t true of Hussein and Noriega; not that I think that would have helped either of them when the Bush family decided it was no longer useful to pretend they were of service as bogeymen, after they stopped being sufficiently subservient to “our” ends).

Nope. Governments are large and scandal is worse than failure. Who cares that someone broke the law (and some skulls), so long as it can be covered up, and plausibly denied?

It’s not that I am surprised to learn that torture became an essential part of the proccess, nor that it corrupted the stream of information. I’m not surprised to learn that thigns which didn’t have torture to, “verify” them weren’t believed, nor that people were tortured to confirm things which then had to be reconfirmed by the expedient of simple follow up up in the field (which could have been done first, and so would have obviated the rationale for torture. It’s what I said would happen, because it’s what always happens when torture becomes a run of the mill tool.

So that’s par for the course. What shouldn’t be is that when such a thing breaks out of it’s box of plausible deniablity that we decide to sanction it.

I’m not much of one for the, “broken windows” school of policiing (esp. because the policies which walk abroad under that rubric are 1: fundamentally racist, and 2: anti-thetical to a nation ruled by laws*). I do, however, think that when a flagrant violation of the law takes place, then something needs to be done.
Sadly, not everyone agrees. Some of this is base hypocrisy. When someone tells you they have no problem with “stop and frisk” (or some other “broken windows” based idea) ask them if Bush, Cheney, et. alia, ought to be charged.

Not convicted, but haled into court and made to stand trial for crimes they admit to having committed (sometimes you can put their hypocrisy into plainer light if you get them to say, “yes, it’s illegal, but sometimes you have to; then you admit it and face the music, at which point they tap dance to explain why it’s different this time. If you have a yen for making people look like complete fools ask those same people how they feel about Clinton’s impeachment; then ask why that situation (a non-criminal fib, is so much more important than breaking laws against torture).

It’s better if this person is one of the “St. Ronnie” crowd. Becuse it’s not just the Geneva Conventions which were violated, but a law against torture which Reagan sponsored; which he touted as being a bedrock of our moral values. It’s not that we’ve always ignored them (nor that we’ve never had fools and idiots who didn’t care whom we tortured, so long as it was never someone who looked like them; and they are usually white). We even sent cops to jail for waterboarding people (in Texas of all places).

But none of this is new to me. I’ve been saying some form of this, in print, and at conferences, for ten years.
What saddens me is how deep the rot has gone. We’ve come to the point where no one thinks we really have a nation of laws, despite Obama saying, “First and foremost, we are a nation built on the rule of law, and so we need to accept that this decision was the grand jury’s to make,” when Darren Wilson being legally exculpated for murder. As a result the cops in Berkeley are shooting tear gas and rubber bullets at people when they choose to “peaceably to assemble, and to petition the government for a redress of grievances.”

But a nation of laws is only a nation of laws if they are applied. If we truly are a nation of laws, we need to put the architects of this systematic violation of several of our laws on trial. We could, I suppose, just accept that we have a class of criminal which is above the law, polticians.

Which isn’t true. It could also be argued, from recent history that we’ve still got the category of institutional fraudster/thief whom we absent from prosecution: viz Wall Street and the serial collapse of the economy by means of playing fast and loose with the law. It’s actually a larger category than that, given the disproportionate treatment of Enron’s Lay and Skillig [and the utter non-punishment of their lackeys] compared to the death of Eric Garner, or Michael Brown, or Tamir Rice or Amadou Diallo lest we forget this isn’t some recent problem. None of the dead people on that list were ever charged with anything; so far none of their killers has been either

Of course all the killers were cops. The cop who killed Garner was exculpated by a grand jury, they seemed to feel the homicide was justified; even though the cop was using a chokehold which was outlawed 30 years ago because (wait for it), it’s often fatal.

But the rest of us… we face the risk of ungodly sentences if we go to trial, because prosecutors pad the charge sheet to extort a plea bargain. We run the risk of years in jail even if we aren’t guilty.

All of which destroys the Rule of Law. It’s from such petty injustices that revolution spreads. It’s from the over-reaction to peaceable assembly that more serious injustice becomes festering grievance.

All of which has been on my mind in the past couple of months.

Brought to a head when I saw that the Anthony Romero,head of the ACLU, said the idea of the Rule of Law demands that we pardon Bush, Cheney, and all the people who committed the tortures they not only sanctioned, not only admitted to sanctioning, but boast of having overseen.

I am croggled at the double-think.

with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

Got that… to show that torture is illegal… we need to pardon the people who did it. Those laws… they don’t mean anything, but saying, “hey, you committed a crime, and we forgive you, and all the guys who helped you…”
Yeah, I can see how helpful that is. I’ll bet that if we did the same for all the mobsters everyone would admit the Mafia was full of hoodlums. (/sarcasm) I get that Romero is frustrated that no one seems to have the stomach to punish the people who shredded the laws. I’m pretty chapped about it to. But there is no way in hell I am going to say that if we aren’t going to charge them we need to pardon them.

We tried that once before, with Nixon. What we got for our pains was the Cheney/Bush Administration, peopled with all the hacks who were still around from that mess. What they learned was two-fold, 1: hide everything, 2: if you commit big enough crimes no one will dare to hold you to account. To offer them a pardon (not that I think they’d take it, as that would mean admitting legal culpability and morally deficiency) would be to cement that idea. Married to the other ills we have from a lack of prosecutions the idea terrifies me, because he’s deluding himself if he thinks, Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.

They acted in the full knowledge that what they were doing was against the law. They didn’t care. Bush, more than once, casually admitted he was (and had been) breaking laws, and had no intent of stopping.

Which is is what makes me angry. We have become so jaded that we accept the idea that there is something reasonable about saying, “oh yeah, you broke US laws, violated treaties, killed innocent people; by torturing them to death (when they weren’t “merely” driven mad. Read the released summary, if you have the stomach, and remember that it’s only a summary. The entire thing is worse). But hey, because torture is SO FUCKING HORRIBLE, we aren’t going to put your ass in jail for the rest of your life, we’re going to forgive you, without going through the effort of having a trial and saying you are guilty, and ought to be punished, so we are going to pre-emptively pardon you; so everyone will know how serious we are about hating torture.

Fuck that noise. At this point I wish there was some sort of tribunal with the moral rectitude, and money/power to enforce the Noriega Doctrine, and haul them to the ICC by force.

Because we are fast forfieting any right to deny the international community the right to extradite them. Rumsfeld will probably never go to France again, and it wouldn’t disturb my sleep to know that Bush and Cheney, Rice and Wolfowitz, Woo and Bybee, were looking nervously over their shoulders, wondering when the tipstaff is going to show up behind them

But, for the sake of the nation as a whole, we dare not pardon them, even if that means they die without being prosecuted: because it’s possible a later age will take it up (as some of them are still young enough that there are decades in which this consummation [devoutly to be wished] may come to pass).

Moreover, the why won’t matter. What will be seen is that torture is an offense for which one can be given carte blanche ex post facto.

Bullshit. And we can’t extend the idea that of, “for the good of the state the bearer has been pardoned for what has been done”. It’s not so. It’s specious. There are dogs which ought not be let lie.

*“There are individuals whose propensity to crime is so high that no set of incentives that it is feasible to offer to the whole population would influence their behavior,” Banfield wrote. The most effective way to prevent violent crime in cities, Banfield theorized, would therefore be to pre-emptively abridge the freedom of the “mostly young, lower-class males” who were likely to commit crimes in the future. What’s that? You say that “abridging the freedom of persons who have not committed crimes is incompatible with the principles of free society”? Well, said Banfield, “so, also, is the presence in free society of persons who, if their freedom is not abridged, would use it to inflict serious injuries on others.”

If you read the original think piece about Broken Windows you see the authors praising cops who use, step outside the law to enforce, “order”: Sometimes what “Kelly” did could be described as “enforcing the law,” but just as often it involved taking informal or extralegal steps to help protect what the neighborhood had decided was the appropriate level of public order. Some of the things he did probably would not withstand a legal challenge…the police in this earlier period assisted in that reassertion of authority by acting, sometimes violently, on behalf of the community. Young toughs were roughed up, people were arrested “on suspicion” or for vagrancy, and prostitutes and petty thieves were routed. “Rights” were something enjoyed by decent folk, and perhaps also by the serious professional criminal, who avoided violence and could afford a lawyer… That’s the message of “broken windows”: Rich people have rights, the rest of us, not so much.


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