Depraved

Anthony Lewis calls the depraved motherfuckers to account.

Not one of the major actors in the torture story has been effectively called to account: not Rumsfeld, who loosened the rules on interrogation of prisoners; not Alberto Gonzales, now Attorney General, who as White House Counsel approved the torture memorandums; and not the Justice Department lawyers who wrote them.

Among those officials there is no sign of repentance. One of them has indeed become a kind of preacher of the legitimacy of using pressure on suspected terrorists. He is John Yoo, who was a lawyer in the Justice Department's Office of Legal Counsel from 2001 to 2003 and is now a professor at the law school of the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute in Washington. In frequent television appearances and public forums he argues a theme of those torture memos: that President Bush as Commander in Chief is empowered by the Constitution to order what treatment he wishes for detainees in the "war on terror." His constitutional argument, that the Framers of the Constitution intended to clothe the President with the war powers of a king, conflicts with the near universal understanding of the constitutional text, with its careful balancing of executive, legislative and judicial power.

A New York lawyer who has contributed greatly to exposure of the torture phenomenon, Scott Horton, has suggested that Yoo's views echo those of a German legal thinker of the period between the world wars, Carl Schmitt. Schmitt argued that when it came to degraded enemies like the Soviet Union, the idea of complying with international law was a romantic delusion. The enemy, rather, must be seen as absolute--stripped of all legal rights.

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Americans are not immune from evil; no people are. We know now that American soldiers, improperly led, can beat to death prisoners they have in their minds dehumanized. What can we do to limit the evil?

Investigation is one idea, widely endorsed. An independent body like the one that carried out the 9/11 investigation could tell us much that we do not know: not just an authoritative account of the wrongs done but a timeline of the official opinions and actions that opened the way for them. But I think a more effective solution would be the appointment of a special prosecutor. He or she would have the power not just to find the facts but to prosecute the wrongdoers. For we must not forget that not only treaties but criminal laws forbid the torture, mistreatment and humiliation of those we take in conflict.

It is unimaginable that President Bush would agree to a special prosecutor for war crimes if ever the public and Congress grew exercised enough to demand one. But you never know about history. The other day, on the sixtieth anniversary of the Nuremberg prosecution of Nazi officials, Scott Horton recalled that Nuremberg established the principle of command responsibility for abuse--and punished those who wrote legal memorandums counseling German officials to ignore the conventions protecting prisoners.

The chief American prosecutor at Nuremberg, Justice Robert H. Jackson of the Supreme Court, warned that "the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well."

Horton said the moment of historical reckoning for American officials may come. "A number of key Bush officials," he wrote, "are more likely to be the Pinochets of the next generation--blocked from international travel and forever fending off extradition warrants and prosecutors' questions."

For now we can only hope. It is depressing to think that all of this is a reflection on all of us, as Harold Pinter pointed out. But for now I'll hope that with enough pressure we can hold these people to account.