A reader writes:
You seem to think that Clive's exposition of existing torture laws is an attempt to outline a legal argument he personally believes in. I don't read his posts that way. Rather, I think he's offering up a version of the argument Yoo or Bybee's defense team might make, and then is saying, "These laws are vague enough that this argument might sway some people. Consequently, pursuing prosecutions could have unintended, negative consequences. It's best to move forward."
This resonates with me. I think people in our country (and around the world) are quickly migrating to the view that the Bush administration was an anomoly and is not representative of American ideals or values. A jury conviction of Yoo for war crimes would help reinforce that viewpoint, but a jury acquittal would upend it completely.
The bitter irony of the Bush administration is that his take-the-gloves-off approach to ensuring the safety of the American people had the effect of making us significantly less safe. How much more bitter would the irony be if prosecutions we pursued for his administration's torture crimes had the effect of undermining the very laws they had broken?
Rather than pushing for prosecutions right now, I think we should be pushing for transparency and light. Make FOIA requests, hold Congressional hearings, have a public debate. Let's continue to argue this out in the court of public opinion. When it comes to prosecutions, what's the rush?
I've long said I'd like a lengthy Truth Commission that takes plenty of time to assemble all the necessary facts. Then we can decide on the prudence of prosecution, or not. But my reading of the US's treaty obligations and domestic laws make such a prosecution unavoidable.