We have found that our country has done things that we have labeled "torture" when others did them. How to move forward?

One conveniently overlooked fact explains so much of this issue. At the time the country was still feeling deeply wounded and (dirty secret) a substantial majority of Americans were demanding extraordinary measures. The thing we are actively suppressing now is the fact that this wasn't just Bush administration officials- America as a statistical whole went certifiably bananas. It is the unrecognized shadow-side of this whole issue.

Incidentally, this is also why prosecutions will not be productive, will not bring healing and will not prevent future lapses. Some may argue that prosecution is necessary to prevent future leaders from ordering torture- but the real problem was that the country as a whole had convinced itself that this was an extraordinary situation and that our traditional values were too soft.

Remember Max Cleland? When a man who lost his legs in service to his country cannot vote against homeland security measures without being sent packing as a terrorist sympathizer (!) that is a problem with the electorate, not just the elected. It is all our fault.

Even principled Progressives who opposed (and polls show that many today who now claim they fell into this category then are simply lying) failed in the fundamental responsibility of a democracy- to convince others of their opinion.

Yet, many claim that the deck was simply too stacked for opposing voices to get a hearing. That is EXACTLY the problem. This, not prosecutions, is what needs to be addressed.

America's degeneration into a mob mentality from 2001-2005 is the elephant in the room that remains unaddressed. Bush's blunders were a reprehensible and natural extension of our nation's collective lapse in judgement.

This still unacknowledged complexity and complicity suggests that, moving forward, Mandela is a more relevant precedent than is Nuremberg.

These officials were indeed following orders- ours.

...except that leaders are supposed to, you know, lead.

unfortunately, one problem I have is that you are right.

I watched in shock as so many around me were gleefully cheering the shock and awe. I watched in shock as our president and his minions explained why the niceties of our constitution were illequiped to combat Islamo Fascism. I watched in shock at the explanations...

And now, I watch in equal surprize as so many STILL insist that having done those things JUSTIFIES having done those things.

Some of us suppose that WE are a law unto OURSELVES.

OK... I see your point. But still...

I'm sure I could generate a poll that would show a majority of respondents would support the lynching of pedophiles. But, it is still the duty of our law enforcement people, our political leaders, and our courts to maintain the rule of law. And, yes, I agree that the same duty applies to the people. But an essential tenet of "The Rule of Law" is that the emotions of The Mob cannot supersede the law.

Both the runup to Bush's war and their open smirking about discarding the law was, indeed, witnessed by us all -- with barely a peep of protest from our media or our congress. They failed us even worse than we failed ourselves. And they should be held accountable.

Now, "accountable" for political weakness does not likely mean any legal penalties. But it certainly should mean public recognition -- shaming, if you will -- and career penalties for those who could not live up to their responsibilities. As for direct violations of clear law, the very least we can expect is full public testimony under oath -- with the attendant threat of perjury prosecutions -- from all the likely suspects.

I agree with your analysis on most points here. I do believe,however, that one major measure of the strength of a Democracy is how responsive leadership is to the will of the people. This can be a weakness - compared to a dictatorship for example. GW Bush once said as much and was laughed at for saying it.

Apparently, Bush/Cheney et al USED their power to break the law, BUT their party is caught trying to finesse their way out of it. The fact that so many of their supporters STILL enjoy the sadistic nostalgia for those days of heady lawlessness and revenge, encourages the bi-polar response we are seeing now.

That's because we have become a banana republic. We became a banana republic on that fateful day in January of 2001 when the Supreme Court appointed George W. Bush as President.

TruthJustice&Amway: Bush's blunders were a reprehensible and natural extension of our nation's collective lapse in judgement.

LeRoy: Our collective lapse in judgment was in allowing George W. Bush to occupy the Oval Office in the first place.

Thanks for the thoughtful comment.

The problem was deeper than people just supporting these activities in the polls. They were fiercely voting for them at the ballot box. Most politicians who did speak out were actively removed from office for not representing their constituents' views- the core job of a political representative, after all.

Those few who did step forward faced the career penalties you mention, but for doing the right thing when their constituents were, frankly, wrong. Needless to say, this public reaction actively undermined any attempts at "leadership" in a more morally sound direction.

I generally agree with your argument that a public recognition of all that was done will probably be necessary and personally would look to South Africa's "forgive but do not forget" approach to post-apartheid justice (certainly not Nuremberg) as a possible example of how to handle this kind of complex situation. I would step extremely cautiously, however, if only because this threatens to become retaliatory partisan disasters if not handled flawlessly. It is a mine field, and we would be foolish to once again convince ourselves otherwise.

Yet my fundamental point is that any such prosecutions or truth commissions will not address the underlying problem. That deeply worries me.

Given the history, it is unclear if the country can survive the consequences of another bout of mass hysteria.

That is worth repeating: it is unclear if the country can survive the consequences of another bout of mass hysteria.

Indeed, it could well be a sign of a real sickness taking hold in our democracy as a whole. Therefore, it is far more critical that we find the roots that allowed for a severely damaging national mob mentality to emerge and take steps to ensure that it does not happen again.

However, this is (maybe not surprisingly) a very low nation priority at present and most people seem not to want to even remember what actually happened. Thus, there is a strong push to place all of the blame on the Bush administration.

I do not find this national amnesia encouraging.

"I do not find this national amnesia encouraging."

I agree. We all share the blame. One can understand but not condone the Republicans toeing whatever lines their President drew. (You say lockstep. I say goosestep) I cannot forgive the Democrats who, fearful of being called "soft on terrorism" failed to take a principled stand while the Constitution was shredded and the Presidency became more and more imperial. Nor do I forgive the career lawyers at the Dept. of Justice who failed to take a stand, and put their careers before the good of the nation.

This argument is complete bullshit. The administration broke the law. If they did not feel the need to break the law, they could have asked for changes to the law so their actions would be legal. However, they did not do this. Why? Because they did not have the votes in Congress to change the law. So they went ahead and broke the law in secret rather than pushing for changes to legalize their sadistic actions. This is the bottom line. This is about the rule of law. A majority of people would probably support assassinating certain foreign leaders right now. That does not mean it is suddenly legal and the President should do it. The populace is always swayed by the emotions of the moment. We have laws to protect us from our leaders doing the same.

I believe the Bush administration felt and continues to feel that they put their best legal minds to the task of outlining how far they could go in roughing up prisoners. Their experts told them waterboarding was not torture so they authorized torture. So who committed the crime, the lawyers who found waterboarding legal, the politicians who believed it or the people who followed orders to do it?

Their best legal minds? As an attorney, I can tell you the legal opinions that were written might as well have been written in crayon. They were stupid, and did not even discuss basic things you could have found in 5 minutes using Google. The assumption is not that these lawyers were that stupid, but rather that they were asked (or knew what was wanted) to craft legal arguments to justify what had already been decided.

So, there are two choices: A) they were supremely stupid, or B) they were supremely unethical. Either way, these attorneys should be disbarred and everyone involved prosecuted. I could draft you a similar legal opinion justifying why it would be legal for you to burn down your neighbor's house, but that would not make my opinion worth a used piece of toilet paper and it would not excuse you from prosecution if you burned down your neighbor's house.

I personally agree with you about the legality of these issues.

However, I do not think the case for prosecution is as clear as you believe. The Military Commissions Act was indeed passed by Congress with majority public support in 2006 and explicitly exempted the administration from application of international law in the case of detainees, explicitly including the Geneva Convention.

Further, while I am no admirer of Justice Scalia, he has publicly taken the position that because the intent of detainment is not actually punishment, Constitutional protections do not apply. No word on whether this was ever written in crayon, but even in Crayola, it will likely carry weight.

Ultimately, however, I admit that my perspective on this issue is pragmatic rather than lawyerly. If we pursue prosecution, and particularly if it is even the slightest bit partisan, we will be running a substantial risk of tearing the country completely apart without actually addressing the real (and ongoing) roots of the problem at all.

We need to get past the denial stage and face uncomfortable facts. This episode in our history was really the result of a simultaneous failure of both the Bush administration and of the American electorate to stand by our fundamental principles when things got scary. The democratic process itself experienced an unacknowledged full-scale systems failure and we cannot afford to allow it to ever happen again.

And if we are serious about preventing it from happening again, the calculus demonstrating where we need to focus now is simple:

Bush is gone.

But we still hold the reigns.

These systematic failures keep occurring precisely because our leaders are not held accountable. Dick Cheney cut his teeth in the Nixon administration and it is well known that he personally believed Nixon's biggest mistake was not his behavior, but that he cooperated with the investigations into Watergate. What Cheney learned from the Nixon experience is that the best path for a lawless executive is secrecy and refusal to cooperate. Then Reagan blatantly violated the law, setting up a secret operation out of the White House to circumvent Congress. When Bush I pardoned all involved, a message was sent "There are no rules that apply to the Executive Branch any more." (On a side note - a prophesy was also fulfilled. The anti-Federalists who argued against the Constitution objected to the pardon power. One of their fears was that a President would one day pardon his cronies and/or himself, effectively making the Executive above the law. Prophesy fulfilled.)

Because criminal activity in the Executive has continuously been excused, it continues, and it is worsening. The Executive has become an all-powerful, ultra-secret government the Founders would have feared.

Justice Scalia's opinion on detainment not being punishment might as well be written in crayon, it is that stupid. I will concede that it carries a lot of weight because of his position, if not any intellectual weight. If Scalia's opinion were adopted, it would make all criminals subject to separate "detainment" rules before they are convicted. This would open the door for anything. Police could torture suspects in purse snatching cases. Waterboard the jaywalker.

About the MCA:

1) It was found unconstitutional (and clearly was). Among other things, a statute cannot supersede a treaty (as the MCA claimed to do with Geneva).

2) Regardless of whether Geneva applied (and it did), we are still signatories to the Convention Against Torture, which makes the actions a crime and obligates us to investigate and prosecute the perpetrators. We are in violation of that treaty.

Incidentally, this is also why prosecutions will not be productive, will not bring healing and will not prevent future lapses. Some may argue that prosecution is necessary to prevent future leaders from ordering torture- but the real problem was that the country as a whole had convinced itself that this was an extraordinary situation and that our traditional values were too soft.

I am an American and the truth is I NEVER convinced myself t"hat this was an extraordinary situation and that our traditional values were too soft."

Like millions of others, I was against the torture regime from the day I became aware of it - namely, the day the Abu Grahib photos were published.

The purpose of an investigation and prosecution would not be to bring "healing",

The purpose would be to provide justice to those who broke the law and to their victims.

TruthJustice&Amway, first of all, very, VERY insightful look at what's happened. I agree with everything you've said until...

TruthJustice&Amway: Given the history, it is unclear if the country can survive the consequences of another bout of mass hysteria.

This wasn't the first time it's happened, it won't be the last. This was a basic human reaction. We went to war. When you look at the previous times we've gone to war, or the previous things we've had to live with, this time wasn't so bad.

In WW2 we firebombed the civilian populations of 64(?) cities in Japan. Nuking them was just more of the same. Total death toll was at least in the 6 digits, it might have been higher. Newspapers and the general public cheered.

We also arrested something like 110k innocent men, women, and children(?) and put them into camps. Most of them were citizens.

I do not find this national amnesia encouraging.

Me either. Wars don't respond well to over-legalization and it's a bad thing to punish activity done during war, that during war we WANT to have happen.

I think a big step forward would be for the Supremes to rule that Authorization to take the army out and kill/overthrow people/countries is also a Declaration of War. Much of our current legal insanity comes from the problem that we're both at, and not at, war.

Something else that needs to happen is we need to formally figure out what we do when we're dealing with someone else who isn't following the rules of war. Much of Geneva was written with the idea that everyone would try to follow it. Al-Quida tried to wage war but still have the criminal system protecting them, Bush tried to turn that around so they got the worst of both worlds and not the best.