There is an article in today's New York Times about the way Michael Mukasey has been hedging on waterboarding. The difficulty, according to many experts is, as "Jack L. Goldsmith, who served in the Justice Department in 2003 and 2004, wrote in his recent memoir, The Terror Presidency, that the possibility of future prosecution for aggressive actions against terrorism was a constant worry inside the Bush administration." Another expert points out that future prosecutors "...would ask not just who carried it out, but who specifically approved it. Theoretically, it could go all the way up to the president of the United States; that's why he'll never say it's torture."
I have to say that I am both glad and amazed that the Bush administration is with it enough to worry. That is a good sign. And they should worry, because they should be indicted, at least. I hope that they are, and that, indeed, it does "go all the way up to the president". One of the Attorney General's jobs should be making sure not only that the laws are enforced, but also that the laws are actual laws--not opinions by John Yoo or David Addington or some other
administration apologist. There is an exact definition of what a law is in this country, and it is not the same as a partisan legal opinion.
One of the enraging things about the Bush administration is the way that they have consistently written their own rules, as if governing the nation is like playing a game of stealing the flag, where the stronger team, when it finds itself losing, simply changes the score or the rules until they either technically "win" or wear out the other side (and in fact, George W. Bush, according to Gail Sheehy, was well known among his friends for changing the rules of a game until he could engineer a win -- and isn't that how they won in 2000?). To do such things is not "courage" or "resolve", it is tyranny.
Mukasey and other Bush administration officials clearly believe that they are going to put over the idea that they "might have gone too far", but that their "intentions were good" and they "just wanted to protect the country". In such a way, they plan to avoid paying the price for their choices and decisions. The law deals with this sort of defense. Someone whose car hits another person in a crosswalk might have been too frightened to stick around or might not have even
realized he had hit someone, but the law still prosecutes these crimes, because a responsible citizen is expected to conform to the laws no matter what his emotional state. Same with Cheney and Bush. You or I may suspect that they were indifferent to the idea of torture in their names, or possibly relished it, but we will never know that. We do, however, know that they explicitly and knowingly allowed torture. The law has no meaning if they don't have to pay for these crimes.
The number of times the Bush administration has skirted or broken or changed the laws to suit themselves is enormous and outrageous. We cannot hope to correct what they have done to our country without addressing their lawlessness. If this means retroactive prosecution, I say bring it on. The fact that they are worried means they know that they should have known better--in fact, they did know better. All of them.