Jacob Weisberg, the talented journalist, editor and opinion leader, floats a very dangerous idea in the new issue of Newsweek.
Weisberg argues that because illegal torture was essentially America’s official policy after 9/11, operating with complicity from the general public, it would be wrong to enforce US laws against torture now.
This argument basically morphs the infamous Nixon standard into a referendum–if the public supports something, then it is not illegal.
Does that sound too crazy to be a serious proposal? Here is the core premise of Weisberg’s column, “Our Tacit Approval of Torture“:
…waterboarding was ordered and served up in secret. But it, too, was America’s policy–not just Dick Cheney’s. Congress was informed about what was happening and raised no objection. The public knew, too. By 2003, if you didn’t understand that the United States was inflicting torture upon those deemed enemy combatants, you weren’t paying much attention. This is part of what makes applying a criminal-justice model to those most directly responsible such a bad idea. (emphasis added)
In this lawless paradigm, public awareness of government misconduct is cited as a justification for placing government officials above the law. Weisberg rules out the “criminal justice model”–you know, those laws that govern the rest of us–because some segment of the public “knew” about government torture in 2003. “Well before the nation reelected George W. Bush in 2004,” the article states, “investigative reporters had unearthed the salient aspects of his torture policy.”
This argument makes no sense. Elections do not cancel our laws. All kinds of politicians, from the charismatic to the corrupt, can get re-elected after being exposed for crimes or misconduct. Yet public sentiment should not bully an independent, apolitical Justice Department from enforcing the laws equally, regardless of the power or popularity of alleged criminals. The public disclosures about President Bush’s “torture policy,” to use Weisberg’s taxonomy, simply have no bearing on the legal question of who knowingly broke the law. Torture is illegal, as even Bush officials concede, and the Justice Department has a duty to investigate and prosecute crimes.
Weisberg admits, however, that he actually envisions a Justice Department cowed by political pressure. In his narrative, corrupted executive branch decisions masquerade as hard-nose realism: “Pursuing criminal charges would be too hard politically.” That is a reckless declaration, obviously, but Weisberg is not alone.