I recently finished Jane Mayer's The Dark Side, which recounts the ugly, ongoing history of the Bush administration's policies of torture. As to whether torture happened, there simply can be no doubt; the volume and horror of the practices approved by the government are just stunning. We have tortured the probably-guilty, the marginally-involved, and the utterly innocent. We have used waterboarding, “stress positions” (crucifixion is death by “stress position”, by the way), temperature extremes, nakedness, noise, sleep deprivation …. and on and on, often in conjunction and sequence with each other. We have deprived people of their rights, health, and their sanity. We know all this.
It occurs to one that the Constitution itself only continues to exist due to the consent of the governed. That means everyone — the Executive Branch, the lawmakers, the courts … and the voters themselves. If one institution after another simply decides to cast it aside, either by action or inaction, malice or neglect … poof! It disappears. It ceases to have any meaning. It has the power of a quaint proverb stitched onto a sampler, hung on the walls, if one after the other of our institutions simply decides not to follow it anymore.
That's not to say there hasn't been resistance to the overarching, malignant machinations of David Addington, Dick Cheney, John Yoo, and the other bad actors. People like Jack Goldsmith and others certainly displayed personal and professional courage in resisting the wild legal fantasies and fear-drenched megalomania of Addington and Yoo; and the Supreme Court has consistently ruled against the Bush Administration on its handling of prisoners. But to what end, exactly?
There simply must be prosecutions. It's not enough to imagine that we can restore the Constitution by popular vote, by just electing people of better morals, of more restraint, of greater reverence for the law and human history. Because “good people” come and go. You don't always get the people you need in positions of power. The law itself must be affirmed, and those who intentionally and flagrantly abused its practice — for the purpose of abusing humans — must be punished.
If there is no prosecution for the shredding of the Constitution, then we really have to wonder exactly what of our great inheritance is left to us. Without prosecution, we are all subject to the whims of those in power, and whether they feel like restraining themselves or not. We are back in the age of an unlimited monarchy — forget about 1787, we're going back to before the Magna Carta.
There is little doubt that prosecutions would be made to seem politicized. Perhaps Congress can appoint a special prosecutor. Whatever means necessary to keep the proceedings fair and impartial ought to be undertaken. Unfortunately, the question at hand is whether the law of the land itself is legitimate. Even if independent, a prosecutor still needs to refer to a common standard of justice, to essential shared values. But if law itself is in question, what remains of that?
At the close of the Constitutional Convention in 1787, someone asked Ben Franklin whether we had a monarchy or a republic. “A republic — if you can keep it,” replied Franklin. The lesson is that the Constitution is not magic, not an all-seeing eye, not a god that imperceptibly guides the machine of state. It depends on people of good faith and forbearance to keep it. Are there enough such people? Or have those qualities become another partisan bona fide, a cliche, a shibboleth easily defeated in a bad election year?
As voters, all that we control is who gets elected. That's where the restoration needs to start. And then our elected officials must re-establish trust, professionalism and honor to the powerful but mostly-invisible areas of the executive branch. So far our Congress has done little to do so. Now, or even next year under a new administration, is not too late to address past violations. There simply must be accountability. If nothing is punished, then all is permitted.
We're on very thin ice.