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Don't Prosecute -- and Scapegoat -- Torture Operatives; Go for the Top

Should we prosecute the agents who committed the torture? We should not. As a longtime advocate for prosecutions, that may sound surprising coming from me.
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As citizens' outrage over the torture memos heats up, and Congress is barraged with calls to appoint a special prosecutor, we may be about to commit an egregious error.

Today Republicans accused Democrats in Congress of having "blood on your hands too" in relation to the escalating calls to investigate. I would like to say that this is exactly right.

I will go further: not only do Congressional Democrats have "blood on their hands" -- but so do we, the American people. And CIA agents may be about to be sacrificed to assuage their, and our, guilt.

Today's suddenly urgent calls by our Congressional Democratic leaders, and even by many of the American people, to prosecute CIA operatives, military men and women and contractors who were certainly involved with, colluded in or turned a blind eye to torture are not only the height of hypocrisy, they are a form of unconscionable scapegoating. The scapegoating is political on the part of Congressional leaders, and psychological on the part of many Americans who are now "shocked, shocked" at what was done in their name.

Hello, America? Hello? Were you asleep for the past seven years? The fact that the Bush administration used torture for the past seven years has been the furthest thing from a secret. When the political winds were with the last administration, which framed qualms about torture as being soft on "the war on terror," just about every Congressional Democrat fell right into line to accept it, if not cheer it on. Even Hillary Clinton supported torture, right up through her Presidential run. Nancy Pelosi was briefed on the torture in closed-door meetings. When activist groups and citizens called for a special prosecutor, all we heard from Congressional Democrats was that they did not wish to spend the political capital.

President Bush championed torture. Vice President Cheney gave such explicit interviews about his role in directing the policy of torture that in legal terms, were there a prosecution, they amount to a confession. Did the Congress that is now so piously calling for the investigation of rank-and-file agents and military express their horror and outrage then? With a very few exceptions, they did not. These leaders "had no idea"? Please.

Since 2003 it has been fully documented by rights organizations, and accessible to anyone listening, that direct US policy for prisoners in our custody included electrodes to genitals, suffocation, hanging prisoners from bars by the wrists, beatings, concealed murders, sexual assault threats, sexual humiliation and forced nudity, which is considered a sex crime in warfare international and domestic law. Many voices from Jane Mayer's to Michael Ratner's to Jameel Jaffer's to Amnesty and Human Rights Watch made similar documented charges. Did our leaders call for investigations? They barely even called for a moment's consideration of it. Tolerating torture ("tough tactics" or "enhanced interrogations") polled well; supporting it made them look tough in close elections. It was, overwhelmingly, okay with them.

And may we ourselves please look in the mirror, for the sake of our own moral health? How many Americans spoke up when it was chic to thrill to the sadistic soundbite of "take the gloves off"? How many watched 24 without a murmur when the mass consensus was that it was okay -- no, patriotic -- to waterboard a bit? How many of us -- as in civilized societies everywhere when a wind of barbarism is set free -- actually thrilled to the sadistic (and sometimes sexually sadistic) soundbites that came out of the Bush communications office of the "special sauce," the "belly slap," and the phrase "we have our methods"?

So now the political and cultural winds have shifted. Congress in their moral courage NOW are starting to call for investigations. Whom should they investigate? Well, in an ideal world, themselves: by knowing about and colluding with a declared and documented series of crimes, they are legally -- Pelosi especially -- accessories to those crimes. So there is an element of cover-your-blank in Congress finding its high dungeon at last and pointing the accusing finger at subordinates in the CIA who obeyed orders that Congressional leaders themselves helped to sustain as a mockery of domestic and international law, and as daily, appalling practice.

Should we prosecute the agents who committed the torture? We should not. As a longtime advocate for prosecutions, that may sound surprising coming from me. But let us look at the Nuremberg Trials: the rank and file soldiers and operatives who committed torture and genocide were not tried -- the lawyers and political leaders who crafted and defended the policy of torture and genocide were tried (and many convicted). While I am not apologizing for the dozens or perhaps hundreds of CIA agents, military and contractors who, any investigation will show, were complicit, actively or passively, in the top-down policy of torture, I do know that these were people lower down the chain of command who have served their nation for many years -- and who were following directives declared not only legal by the President of the United States of America and the OLC, but were told they were "saving lives." To throw them into the fire for political cover is shameful.

Also, it would leave Obama with the problem from hell. So many people in the agency were involved in these practices that to prosecute them -- well, he would disembowel his own intelligence services.

So we should call for former chief judge of the army General James Cullen's solution. He has been at the forefront of calling for accountability -- but the right kind of accountability: Cullen urges us to indemnify those lower down the chain of command to get their testimonies. So they implicate the ringleaders, and then the only people who should be prosecuted are, as at Nuremberg, those who directed otherwise honorable men and women to commit crimes: the lawyers, and those who are on record having given the orders: Rice, Cheney, Rumsfeld, and Bush himself. The psychiatrist who reverse-engineered the SERE tactics should be prosecuted as well.

As for the dozens or hundreds of men and women who committed criminal assaults because their nation told them to -- at risk, if they refused to, of ending their careers? Protect them from prosecution. Many of them suffer trauma, nightmares -- and shame. That is more than burden enough.

Lay the guilt where it belongs: on Congress -- most particularly, legally, on the leadership that directed this policy -- and, emotionally and morally, on our complicit American selves.