Activist judges can change minds
Reading this back and forth between Matt and Neil about how likely it would be to build a political consensus that torture is wrong, I was struck by how much Matt is propping up a false dilemma in the seemingly innocuous statement that we should prioritize building that consensus over prosecuting the culprits.
I was saying the other day that large-scale punishment for the perpetrators of Bush-era war crimes is less important than establishing some form of political consensus that torture is wrong for the future. A decision to kind of wave hands and say “well, it was a crazy time” would disappoint me, but the really important thing is to try to change the dynamic where we essentially have a lot of politicians saying that if it were up to them we’d go straight-away back to doing more torture.
Neil’s objection was sound—the right wing media will not let this happen. But thinking about it, I realize why Matt is a little off. It’s not exactly a false dilemma—he’s not saying that prosecution somehow precludes creating this political consensus—but it’s close, since he’s putting the two things in separate buckets.
I would argue that prosecution is the best way to create that consensus. The right wing media will harp on this for a bit, but as soon as the story dies, they’re going to let it drop and no one who is pro-torture now will find themselves significantly challenged. This is especially true for the mushy middle we’re trying to get on board, the people who vote for Republicans because they yet haven’t figured out how bad they really are. After all, the conservative pro-torture argument has been that a) it’s necessary to save lives and b) it’s not that bad anyway, so why are you liberals whining?
A prosecution could go a long way to dismantling both of these myths in the public eye. After all, the prosecutors would be hauling mountains of evidence out to show that the pro-torture atmosphere constructed by the Bush administration made torturing prisoners routine, which disqualifies argument A, the “what if there was a bomb and it was just like ’24’ and omg terrorists!” argument. More important for building the consensus, I think, would be the impact of finding out exactly how terrible torture is. And how it really was torture, and not just “interrogation techniques”. A prosecution of this scale would be hard for even Fox News to bury under its hand-waving style of delivering the news. They probably couldn’t avoid covering it, and it would take a lot of spin to conceal the prosecution’s arguments, I’d think. Until this point in time, it’s been easy to dismiss torture opponents as a bunch of tree-hugging hippies, but once you put this all in a courtroom and put the stamp of government approval on it, you shift things significantly.
Sure, the hard right will not budge, at least not initially. But history shows that when something’s a lost cause, they tend to give up, reconvene, and try to find a new way to push old issues. The courts led the way on desegregation, for instance, and you’d be hard-pressed to find even the most strident wingnut who’d admit to supporting it. But without that kind of authoritative stand on the issue, we may not be able to budge the political consensus at all.