Legal Commentary

If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people ? albeit with an insufficient sense of moral restraint ? against a terrifying threat by ruthless attackers with no sense of moral restraint at all.

Our veneration of the rule of law makes us believe that courts and procedures and judges can put right every wrong. But we must remember: our leaders, ultimately, were chosen by us; their actions were often ratified by our representatives; we chose them again in 2004. Their repudiation this Nov. 4 and the public, historical memory of them is the aptest response to what they did.

Here is Lithwick:

I believe that if it becomes clear that laws were broken, or that war crimes were committed, a special prosecutor should be appointed to investigate further. The Bush administration made its worst errors in judgment when it determined that the laws simply don?t apply to certain people. If we declare presumptively that there can be no justice for high-level government officials who acted illegally then we exhibit the same contempt for the rule of law.

It?s not a witch hunt simply because political actors are under investigation. The process of investigating and prosecuting crimes makes up the bricks and mortar of our prosecutorial system. We don?t immunize drug dealers, pickpockets or car thieves because holding them to account is uncomfortable, difficult or divisive. We don?t protest that ?it?s all behind us now? when a bank robber is brought to trial.

And here is me:

We should opt for the truth, for three reasons. First, we must restore America?s commitment to human rights by exposing and condemning our own abuses. Second, we must counteract the tendency toward secret laws that facilitate these violations. Third, we must create a public record of government misconduct as a lesson to future generations and a caution to future administrations.

Criminal prosecutions might serve these functions, but they face enormous obstacles. The administration repeatedly, systematically twisted the law to immunize its criminal conduct, and much of what was done was authorized by executive branch lawyers, particularly in the Justice Department?s Office of Legal Counsel. However mistaken this advice, relying on it provides government officials a strong defense. Moreover, at the Bush administration?s urging, Congress has given potential defendants legal immunity through the Military Commissions Act of 2006 and other statutes. . . . [C]riminal prosecutions make sense where lawbreaking was not immunized or approved by Congress or the Justice Department, but in the most serious cases ? torture and surveillance ? prosecutions may be least effective.

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The South African experience . . . is very different from ours. . . . In the United States, torture and inhumane treatment was largely directed at non-citizens, many held outside the country, at Guantánamo Bay or in secret locations. We are not trying to coax former adversaries together to build a new nation; rather, we need to renew our commitment to human rights and the rule of law and prevent future abuses. Our aim is not truth and reconciliation; it is truth and repudiation.