A terrible precedent

No Associated Press content was harmed in the writing of this post

In 2002 CIA agents - Americans - tortured prisoners and were videotaped doing so. In 2005 those videotapes were destroyed, and on Tuesday the five year statute of limitations for filing criminal charges in the matter expired. For a little background, here are Mark Mazzetti and Charlie Savage in the New York Times:

The key figure in the tape destruction incident was Jose A. Rodriguez Jr., the former head of the agency's clandestine service. In November 2005, he ordered his staff to destroy tapes of the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, the first two detainees held in secret overseas prisons. The tapes had been kept in a safe in the agency's station in Thailand, the country in which the interrogations were conducted in 2002.

Special prosecutor John Durham has been investigating this for years, but as bmaz notes:

The open and shut criminal case against Jose Rodriquez is gone. The clear potential for cases against the four Bush/Cheney White House attorneys involved in the torture tapes destruction, as well as the two CIA junior attorneys, gone. Same for any case against Porter Goss. Gone, and the DOJ has no explanation and nothing to say.

Given the relentless focus on looking forward it hardly seems cynical to expect the investigation to be functionally dead. Yes, the Times article notes that there still could be prosecutions for false statements during the investigation, but the original actions are now beyond the reach of the law. As bmaz implies, this also eliminates the possibility of implicating higher ups like Porter Goss and rolling up the chain of command - standard practice for prosecuting corrupt organizations like Mafia families and the Bush White House.

I know that last sentence is very shrill and all, but how unfair is it really? As bmaz' co-blogger Marcy Wheeler wrote:

Our country has spun so far beyond holding the criminals who run our country accountable that even the notion of accountability for torture was becoming quaint and musty while we waited and screamed for some kind of acknowledgment that Durham had let the statute of limitations on the torture tape destruction expire. I doubt they would have even marked the moment–yet another criminal investigation of the Bush Administration ending in nothing–it if weren't for the big stink bmaz has been making.

It is all the more nauseating because it is so perfectly juxtaposed with the former president hitting the road for his combination victory lap/book tour. As he hawks his wares for interviewers whose stances range from bland to obsequious, he defends his move to the dark side by claiming (per the Times) that "criminalizing differences of legal opinion would set a terrible precedent for our democracy." Bush's supporters have made that argument since before he even left office, and his successor's Attorney General eagerly adopted it by stressing (also per the Times) he would "not prosecute anyone who acted in good faith and within the scope of the legal guidance" from White House counsel.

The persistence of this defense, and its widespread adoption by almost the entire elite political and media establishment, is truly astonishing. It is nothing more than a variant of the Superior Orders argument, something that has been overwhelmingly rejected as a legitimate defense for decades. But there it is, accepted by everyone in a position to do something.

The ex-president so brazenly admitted to authorizing torture that Amnesty International called for prosecuting him for war crimes, but as with the torture tapes it is hard to imagine anything coming of it. Instead he gets to make the rounds, replenish the ol' coffers, and go back to his easy retirement. He just flatly asserts that he was right and all his interviewers accept it. This was also the case during his presidency, so whatever strange alchemy he uses to ward off scrutiny is still clearly working.

It is hard to write about the nonchalant acceptance of our torture program because it seems Washington does not have a conscience capable of being shocked. Having created an institutionalized, bureaucratized, formalized program of cruelty is just blandly accepted, as though it is some force of nature that we were powerless to prevent or even mitigate. The time for a shamed, stricken and humbled response is long past, and now we are even moving past the ability to formally address our monstrous cruelty. All we can do is mark each such occasion as it passes. And use it to quietly but insistently observe that anyone who can claim to be following orders, and working to safeguard national security, is above the law.