truth and repudiation

The NYT exchange on returning justice to the war on terror contains plenty of solid analysis, though I think Jack Balkin gets the best of the argument. Dahlia Lithwick’s advocacy, which comes down to aggressive prosecution for torturers, appeals to me, and I tend to be skeptical of the “truth and reconciliation” approach to justice. But a court of law, Balkin points out, would be fairly ineffective in gathering information about exactly what happened in the executive branch over the past eight years. The network of privileges and immunities that defendants could invoke would keep some of the most useful information away from the public. Successful prosecutions might also turn out to be rare, since the secret laws enacted by the executive have immunized most of the worst offenders. Therefore Balkin recommends making investigation the top priority, and moving to prosecute when actionable cases emerge.

More than Lithwick’s position, the changes that Balkin calls for require cooperative action from President Obama’s administration and the legislature – their commitment to enacting legal and political reforms (starting with OLC, the Military Commissions Act, and FISA) will entirely determine whether the inquiries that Balkin wants would yield any gain in terms of re-establishing the rule of law. But that’s not misplaced idealism on his part – it’s a recognition of how thoroughly twisted the Bush executive became. Without an overhaul and a series of investigations, there’s almost nothing that can be done either to punish Bush’s team or to fix what went wrong.

So I can  understand why some of Balkin’s commentors are dissapointed – but they’re letting their moral outrage obscure effective policy decision-making. Balkin’s approach has the best possibility for enacting reforms that would stop the Bush excesses from being repeated. I’d like to see Bush, Cheney, Yoo and Tenet go down. But more important is that the legal machinery they put in place is dismantled so that no future executive has access to their unrestrained power.

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~ by staticandme on January 12, 2009.

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