Pandora's Can of Worms

Just to clarify (because this is not going to become apparent for some time yet), Rahm Emmanuel said on Sunday:

President Barack Obama does not intend to prosecute Bush administration officials who devised the policies that led to the harsh interrogation of suspected terrorists, White House chief of staff Rahm Emanuel said Sunday.

However, by Monday:

On Sunday, Rahm Emanuel, the White House chief of staff, said on the ABC News program “This Week” that “those who devised policy” also “should not be prosecuted.” But administration officials said Monday that Mr. Emanuel had meant the officials who ordered the policies carried out, not the lawyers who provided the legal rationale.

Three Bush administration lawyers who signed memos, John C. Yoo, Jay S. Bybee and Steven G. Bradbury, are the subjects of a coming report by the Justice Department’s ethics office that officials say is sharply critical of their work. The ethics office has the power to recommend disbarment or other professional penalties or, less likely, to refer cases for criminal prosecution.

The administration has also not ruled out prosecuting anyone who exceeded the legal guidelines, and officials have discussed appointing a special prosecutor. One option might be giving the job to John H. Durham, a federal prosecutor who has spent 15 months investigating the C.I.A.’s destruction of videotapes of harsh interrogations.

Why the confusion? To be fair, Emanuel was speaking before Obama went to the CIA to address "the troops." Fair enough, they didn't want mixed messages being heard as Obama reassured them prosecutions were not in their futures. And how absurd is this going to get? Cheney now says the memos recording what was learned from the torture should be revealed. Good ol' Dick! The ends justify the means! Yeah! And, of course, there'll be no complaints that Obama has breached national security if he releases that "exculpatory evidence," right? Right? (No; pretty clearly, not)

That's what I thought. I suspect Cheney's starting to feel some heat.

How to proceed from here? These are not context free considerations. Joan Walsh, for example, echoes the call of the NYT for the impeachment of Jay Bybee. And certainly, as the NYT says, the legal memos are "a journey into depravity." As the editors say:

These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.

No, they aren't; nor, apparently, are they being treated as such. But getting back to Cheney's defense, that "torture works!," we find the worms wriggling madly. Joan Walsh focuses her rage on the non-utility of torture, which we can consider the direct rebuttal of the "Cheney defense." But here, indeed, is the rub. Do we prosecute torturers because they were ineffective? Because they offend our sensibilities? Because we don't want to know how the sausage was made?

Or do we prosecute because it is a violation of law? The NYT editorial makes this argument:

Until Americans and their leaders fully understand the rules the Bush administration concocted to justify such abuses — and who set the rules and who approved them — there is no hope of fixing a profoundly broken system of justice and ensuring that that these acts are never repeated.

But then it lurches off to argue, not about torture, but about illegal wiretapping, "a program that has since been given legal cover by the Congress."

Oops.

This is not a distraction, however. For the NYT editorial, this is the point:

That is the heart of the matter: nobody really knows what any of the rules were. Mr. Bush never offered the slightest explanation of what he found lacking in the 1978 Foreign Intelligence Surveillance Act when he decided to ignore the law after 9/11 and ordered the warrantless wiretapping of Americans’ overseas calls and e-mail. He said he was president and could do what he wanted.

Well, yes, but you won't get answers to those questions by prosecuting Mr. Bush for committing the war crime of torture. And then we wander into the whole "government of laws, not of men" issue:

These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him.

I don't know what grounds for impeachment are, but I do wonder if these memos constitute a valid reason to remove a judge from the bench. If the elements are those outlined by the times, I can think of a few Supreme Court justices who could be removed; but I don't think that's going to happen, nor would the Times editorial board join me in my crusade. Seems to me Judge Bybee didn't get there without the help of Congress. Maybe his willingness to subvert legal ethics and reasoning wasn't clear without these memos but, frankly, I rather doubt that. I presume no one was simply looking very hard. Maybe the problem is less with Mr. Bybee's ideas, and more with how seriously the Senate takes its "advise and consent" role. Maybe Mr. Bybee should be removed from the bench; but the lawyer in me says that should be for reasons related to his fitness to be a judge, not to the passions of the crowd at the moment. There's a reason those appointments are for a lifetime, and I'm not anxious to toss the importance of that consideration aside without a better understanding of the consequences of an impeachment proceeding.

Which doesn't mean I'd defend Bybee's position on the bench, or his legal reasoning. Indeed, if there is still a reasonable recourse in this matter, this may be it:

And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.

If Congress were to pursue this, and then insist on prosecutions, it would be both politically and Constitutionally a sounder path than the Administration acting under its own broad and very powerful authority. But that something will be done, seems more and more clear.

UPDATE: The GOP is very worried about the nomination of Dawn Johnsen (to the OLC; mentioned below). Specter remains undecided, and floats a filibuster trial balloon. Whatever they do, they are signalling their concerns and angling for some kind of concession; so it may be Obama is playing some very hardball politics with everything he's said recently.