I have to disagree, unless you mean “unfair to the victims of torture” or “unfair to America”. The Nuremburg principle is two-fold: state policy is no excuse for ordering torture and following orders is no excuse for committing the actual acts. Together, these principles constitute a root-and-branch approach to destroying a terror regime. Get the architects and the individual actors at the same time.

In practice, such simultaneity seems to be hard to attain. So conspiracies are routinely broken by first breaking the indivdual actors, by making it clear to them that they will bear the ultimate punishment for everything if they fail to implicate their chain of command. If these people do not give up the chain of command, then so be it. Their punishment will still serve as an example to others who come along later. That’s what Nurmeburg intended: sure, you may hang today for doing the right thing, but you will hang tomorrow for doing the wrong.

Impunity for the architects will not be possible as long as there is no impunity for the actors. If the punishments for the underlings are severe enough, public outcry will drive the investigation upwards. England and her cohorts were treated relatively lightly, and they are now prepared to tell at lest some of what they know. When and if we are prepared to follow up their case, higher ranks will be easy enough to convict.

However, impunity for the underlings insures impunity for the architects. That is why it is being demanded. The archvillains can float to safety on the public’s misplaced sympathy for the little guy. Nothing is provable, and the public just wants to put it all behind us.

Now Obama can, of course, indirectly protect the architects by short-circuiting the punishment of the underlings, as Bush did in the Plame case. He could commute or even pardon the minor criminals, thus insuring their silence. But that would have its cost. And giving the underlings a pass before prosecution even starts gives justice no chance at all.

Now, that said, two things.

First, you CANNOT prosecute the higher ups without bringing prosecutorial pressure on the tip of the spear. You’re right that it would be wrong to ONLY prosecute the people who DID the illegal interrogations, but the opposite is not only philosophically true, it’s a practical necessity. The parallel to an organized crime prosecution is kind of eerie, but it holds. You NEED to force the testimony of the people who carried out the policy, and you do that by offering them the stark choice of testimony or long jail sentences. That is how the game is played.

Second, just like in gardening or pest control, you need to start SOMEWHERE. No matter how Holder tries to constrain and limit the targeting of the prosecutions initially, as facts come out and people begin to talk, the entire process will take on it’s own internal logic, and there will be no way to derail that train. Obama is brilliant, and he knows that the only way to keep the prosecutions from leading to Yoo and Addington and Perle and Cheney et. al. is to not allow them at all. Once they get started, it’s just popcorn time.

mikey

I am always surprised at how few comments i see on Attackerman. I guess he’s got his more serious posts at the Independent, but still super intuitive stuff. And the scoops keep comin’!

Thanks Spence. You rock like a Titan.