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Published on Monday, April 27, 2009 by Harper's

Broder for the Defense

by Scott Horton

In the Sunday Washington Post, David Broder explains why all calls for accountability with respect to the Bush Administration's introduction of torture techniques are not just wrong, they're psychologically unhinged. In his words, they "cloak an unworthy desire for vengeance." The Post's hoary voice of political wisdom goes on to explain that it's vital for President Obama to take on the question of accountability under the law himself, and not "pass the buck to Eric Holder." Obama needs to intervene to stop any suggestion of a criminal inquiry, Broder argues. Why? Other than an almost verbatim repetition of talking points put out by Karl Rove on Wednesday, Broder offers only one justification for his opinion:

The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places - the White House, the intelligence agencies and the Justice Department - by the proper officials.

Since I am an advocate of accountability, and Broder presumes to question my mental health, I'll offer a personal response. I have no interest in vengeance or retribution, but I have a strong interest in upholding the rule of law and in stopping torture. Unlike Broder, I do not consider the law to be a political plaything but rather a repository of our highest values. The United States has a series of criminal statutes which apply to this situation and which were violated. Further, the United States signed a very important international convention under which it promised to open a criminal investigation into any credible allegations of torture. At this point there is a uniform consensus that the United States is in breach of its treaty obligation. (A matter of indifference to Broder, apparently). Moreover, its conduct is sending a clear message around the world: the prohibition on torture is a trivial matter which can be defeated by a tyrant in any corner of the world. All he needs to do is hire a lawyer and have him issue an opinion that when he tortures, it's completely lawful.

In the frivolous world of David Broder, flitting between corporate-sponsored vacations and eating quail with his old friend Karl Rove, the question is just about a "policy difference." In the real world, it's about whether people will be beaten brutally in the Congo, boiled to death in a police station in Uzbekistan, or have their genitals slit in a prison in Morocco. The international prohibition on torture makes a vital difference in the lives of thousands around the world today and tomorrow. Coming from an Air Force family, I also think about the fate of an American airman captured behind enemy lines in a conflict of the future. The likelihood that this serviceman will be tortured has been greatly heightened by the Bush Administration's reach to torture, and the failure of any subsequent administration to hold them accountable adds to that risk. But David Broder doesn't see this. He can't fathom the world outside the cocktail lounges, restaurants, and ballrooms of Beltwelt. Apparently, unlike Bill Clinton's affair with an intern, the issue of torture is not a truly serious matter that affects the moral climate of Washington and the world beyond it.

Perhaps Broder can be dispatched to the families of some of the Japanese soldiers we sentenced to death for waterboarding. "Sorry, ma'am," he can tell them, "we executed your grandfather, but now I've decided that this was all just irrational vengeance. Whether a country waterboards or not is all just a fair policy difference. So we're sorry about that death penalty."

There's hardly a truthful statement to be found anywhere in Broder's column. Start with the claim that the torture memos "reflect a deliberate, internally well-debated, policy decision." Really? That assessment suggests Broder hasn't actually read the memos. If he did, he'd come to the Bush Justice Department's conclusions at the end that the key memos granting authority were improperly reasoned-largely because they did not, in fact, engage the key figures who should have been in the debate. But it's much worse than that. We learned in the last ten days that the White House worked frantically to compartmentalize the production of the memos and to exclude all individuals who had actual expertise in the subject matter they were addressing-such as the Judge Advocates General of the four service branches, and the lawyers at the Department of State who have historically formed U.S. policy and views with respect to the Convention Against Torture and the Geneva Conventions. Notwithstanding these efforts, when other lawyers and uniformed military officers did learn about what was being done, they risked their careers by intervening and demanding that the readers of these memos be reminded about the clear-cut requirements of the criminal law. This was all to no avail.

Indeed, we learn from Philip Zelikow that when he wrote a memo, the White House launched an effort to scoop up and destroy all the copies. Why? They were perfectly conscious of the criminal conduct they were engaging in, and that the Zelikow memo could be cited by a future prosecutor as evidence against them. Alberto Gonzales himself repeatedly issued warnings that a criminal prosecution could follow. And if these decisions were "well-debated," why is it that the Bush Administration itself repudiated most of the memoranda, agreeing that their reasoning was impossible to defend? It's hard to read Broder's effort and not conclude that he hasn't taken the time to learn the basic facts about the torture debate, to read the documents, or to understand the issues. In the perverse world of David Broder, what counts is the equilibrium of the Washington matrix of which he is a long-established part. Broder is the perfect example of what William Wilberforce called "politics devoid of principle."

And note the means that Broder sees for resolving the matter. President Obama should resolve the question of criminal accountability himself, Broder says, bypassing the Justice Department. This surely is advice Broder has taken straight from his friend Karl Rove's playbook. But just think about this for a while. Do we really want to live in a country in which the president is the constant arbiter of who is and who is not criminally investigated? That is the very hallmark of a banana republic, a practice that the Founding Fathers worked very hard to insulate us against. But for Broder, all the talk of independent judgment exercised by professional prosecutors is rubbish. No Washington pundit worth his salt really believes any of this. The White House calls the shots, Broder tells us, and that's the way it should be. Broder is so deeply steeped in Beltway cynicism he hardly knows how to disguise it.

If the Bush torture team do have an appointment with the criminal justice system, then I have just one prayer. It's that David S. Broder will personally manage their criminal defense. It would be an express ride to conviction. Ask Scooter Libby.

© 2009 Harper's Magazine
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