On August 27, 2014, Reuters reported:
A Texas jury on Wednesday found a father not guilty of shooting dead a suspected drunk driver who hit and killed his two sons while they pushed a truck down a country road late at night.
David Barajas, 32, had been charged with murdering Jose Banda, 20, in December 2012, after he plowed into Barajas’ sons David Jr., 12, and Caleb, 11, in a small town south of Houston after a night of drinking.
Without going into the details of Mr. Barajas’ trial or discussing the evidence or lack thereof, it was widely believed that the jury acquitted David Barajas because they understood his actions, even if they didn’t necessarily agree with them. The jury may have understood that a father who had seen what he had seen might very well have run the hundred yards to his house to get his gun and then returned to kill the drunk who had just killed his little boys. The jury may have reasoned that, after he had witnessed such a horrifying scene, no one could totally fault the father for acting so rashly, beyond the limits of the law. Maybe the jurors didn’t want to imprison him—even if he actually did kill the man who killed his sons—for his crime of passion.
We all know by now that the Senate Select Committee on Intelligence discovered horrific things related to the CIA’s detention and interrogation program. The unclassified Executive Summary of the “Findings and Conclusions” is 525 pages long, but the classified material is many times more voluminous and, we might assume, much more damaging to the CIA and the Bush administration.
Since there are plenty of places where you can go and get the gory details of what went on under the banner of Old Glory, I’ll leave that portion alone. There is only so much you can say about “involuntary rectal feeding and rectal hydration” or waterboarding or a detainee who froze to death while “partially nude and chained to a concrete floor”—and that was after he had been tortured.
Here is what I have concluded from almost a week of exploration:
A. It is obvious that many of the techniques the CIA used were in fact torture. That those involved in the program say it wasn’t torture is absolutely predictable. They have to say that. What else can they say?
B. That such techniques as were used constituted prosecutable torture was decided a long time ago. As Sheldon Whitehouse, who sat on the select committee, said on Fox “News” Sunday:
We decided waterboarding was torture back when we court-martialed American soldiers for waterboarding Philippine insurgents in the Philippine revolution. We decided waterboarding was torture when we prosecuted Japanese soldiers as war criminals for waterboarding Americans during World War II, and we decided waterboarding was torture when the American court system described waterboarding as torture when Ronald Reagan and his Department of Justice prosecuted a Texas sheriff and several of his associates for waterboarding detainees…
C. Since it was torture and since torture is a war crime (and against U.S. law), it is irrelevant whether the torture “worked.” There is no theory of justice that I know of that excuses a crime because of its associated effectiveness.
D. Since it was torture and since torturing prisoners is a crime and since somebody in government had to officially authorize the CIA to do it so comprehensively, that somebody is ultimately responsible for the crime. And that somebody is George W. Bush and no one else. Here is an exchange between Chris Wallace and Karl Rove on Fox “News” Sunday:
WALLACE: Karl…the report says that President Bush didn’t know about these enhanced interrogation techniques until 2006. You were there. Is that true?
ROVE: No, in fact, he says in his book, describes how he was briefed and intimately involved in the decision. He made the decision. He was presented I believe 12 techniques. He authorized the use of ten of them, including waterboarding.
Not surprisingly, Rove’s account perfectly matches the account of Dick Cheney, who said on Meet the Press on Sunday:
The president writes about it in his own book…This man knew what we were doing. He authorized it. He approved it. The statement by the Senate Democrats for partisan purposes that the president didn’t know what was going on was just a flat out lie.
Thus we have it that if anyone in government is potentially prosecutable for any crime, it is George W. Bush. Not Dick Cheney—as much as that would satisfy some of us—not Karl Rove, not the head of the CIA, or anyone else. The president, says Karl Rove, was “intimately” involved. Cheney said he “knew” and “approved” of what was going on.
E. Nobody in government, especially not Barack Obama’s Justice Department, is going to charge George W. Bush with a crime and then prosecute him. That’s not going to happen. Ever. People on the left clamoring for such a prosecution are, alas, wasting their time.
F. Therefore, this crime of passion will go unpunished.
Whether it should go unpunished, whether we should consider the context in which the Bush administration’s actions were set, whether we should give the benefit of every doubt to those who were confronting what Senator Dianne Feinstein called “the pervasive fear in late 2001,” is a situation much like those jurors in Texas faced in the case of David Barajas, who watched his two young boys die at the hands of a drunk driver and, if we are to believe the prosecution, shot and killed the offender.
I confess I don’t know how I would have voted if I were on that Texas jury evaluating what may have been a crime of passion by a shocked an angry father. A perfect system of justice would obviously demand that vigilantism be punished, but no man-made system of justice can be perfect. Justice is often an approximation.
In the case of torturing prisoners, I am simply not sure that I would, if I were sitting on a jury judging George W. Bush, vote to convict him. It may be clear, as Senator Feinstein put it, that the CIA’s detention and interrogation program was “morally, legally, and administratively misguided.” But it is less clear that, as she said in the report, the “pressure, fear, and expectation of further terrorist plots do not justify, temper, or excuse improper actions taken by individuals or organizations in the name of national security.” Maybe they don’t. But such a judgment is made a long way in time from the unfolding events and therefore a great emotional distance from the heat of the moment. Again, I just don’t know what I would do if the decision to convict were mine.
What I do believe, though, is that President Obama should do the country a favor and pardon his predecessor and all of those involved. That way, as many have pointed out, we could at least establish, for all time, that what was done in the months following the horrific attacks on 9/11 was, by our own lights and the lights of the international community, illegal and should never happen again.
Because, after all, crimes of passion are still crimes.