A curious press release came across the email yesterday from the Brennan Center For Justice at NYU Law School.

 

Dear Friends, It is now clear that our nation violated the rule of law and the Constitution in the fight against terrorism. Torture, warrantless wiretapping, extraordinary rendition are the most vividly visible examples. Yet the public still does not fully know what went wrong as well as what went right. Some urge prosecutions; others urge doing nothing. There is another approach, proposed by the Brennan Center for Justice in testimony before the Senate and House Judiciary Committees last summer. Our chief counsel, Fritz Schwarz, proposed an independent bipartisan commission — modeled after the 9/11 commission — to explore and expose violations of the rule of law in counter-terrorism policy. The full proposal is here.  This approach now has been embraced by the chairmen of the House and Senate Judiciary Committees. Rep. John Conyers has introduced legislation to launch such a probe. Yesterday, in a powerful speech at Georgetown University, Sen. Patrick Leahy rejected the path of prosecutions or of doing nothing. He said: There is another option that we might also consider, a middle ground. A middle ground to find the truth. We need to get to the bottom of what happened — and why — so we make sure it never happens again….One path to that goal would be a reconciliation process and truth commission. We could develop and authorize a person or group of people universally recognized as fair minded, and without axes to grind. Their straightforward mission would be to find the truth. People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts. Last night, at his press conference, a reporter asked President Obama about Leahy’s proposal. The President said, “I will take a look at Senator Leahy’s proposal, but my general orientation is to say let’s get it right moving forward.” Understanding what we got right — and what went wrong — with counter-terrorism efforts is an essential part of our moving forward with policies that protect the country while upholding the Constitution.  Thank you.

Why, I asked myself as I read this, is the Brennan Center arguing for “another approach?”  The email starts out with the unequivocal statement that “it is now clear that our nation violated the rule of law and the Constitution in the fight against terrorism.”  So the answer is to put on a show?  To what end? 

While some might argue that it isn’t clear, I don’t see it that way.  But I similarly can’t understand this institutional compulsion to select a Truth and Reconciliation Commission, as Sen. Patrick Leahy seeks, as a compromise.  For those of use who are likely far too idealistic, we might hope that our President of Hope, Barack Obama, might do the right thing simply because it is the right thing.  But there’s no evidence of that happening.  Rather than have the issues of torture and wiretapping (forget rendition, since Obama has no plans to stop it during his tenure anyway) during the Bush administration fall off the face of the earth, they would prefer to put on a show.  “At least it’s something,” is the argument.

Watering down governmental misconduct is not the solution.  The use of language that appeals to focus groups, “compromise”, getting to the bottom of it,” “understanding”, makes it all seem so palatable, even desirable.  But if the United States engaged in torture, as the Brennan Center email says, should it be the subject of compromise? 

Once we accept compromise on these travesties, all is lost.  Is it better that nothing be done?  Yes.  This has not gone unnoticed, and reflects the institutional problem of the imperial presidency, where the anything a President does, by definition, must be lawful no matter how unlawful it is.  Anyone unaware of this now is hardly going to pay much heed to the report of a Commission years from now.  Who are we kidding?

But we can at least hold our heads high in the knowledge that we have not acquiesced in the compromise of torture.  If the foes of governmental torture do not believe that it is sufficiently worthy of holding firm, that it is not subject to some “middle ground,” then the line between right and wrong disappears.  There is no compromise on torture, warrantless wiretaps and even (sorry Obama) rendition.  We need no commission to tell us this, and we need not compromise everything in the name of expediency.  Some things are not to be compromised, even if it means that the government can’t put on a show.