The confirmation of a new attorney general offers senators an ideal forum for pontification, grandstanding, and attempts to uncover (or create) scandal. It’s unlikely that any GOP questioning will derail Loretta Lynch’s nomination to replace Eric Holder, and there’s little chance that the process will unveil a scandal that shocks the public conscience. But that’s not because the hearings won’t turn up anything. In fact, a major scandal was addressed in the hearings, but not by a Republican eager to embarrass the White House. It was in a brief question from a Democrat—Senator Patrick Leahy of Vermont. And it will probably receive almost no public attention.
Both politicians and media voices portray waterboarding, black sites, stress positions, and “extraordinary renditions” as Bad Things We Don’t Do Anymore. This is an extraordinarily self-serving narrative that twists a horrifying crime into a melodramatic success story: In a frightened and confused moment, we briefly abandoned our noble ideals, only to overcome our fears, recover our morals, and bravely denounce our brief lapse into barbarity. This is how most people think of the torture regime. This way of thinking walls the ugliness of torture off from our contemporary collective consciousness; to the extent that we talk about torture at all, it is usually as a set of happily abandoned excesses from a dark and distant past. This is nonsense. The torture regime is still very much with us, and it continues to make a mockery of our professed ideals. Even as we pat ourselves on the back for no longer murdering prisoners, we reveal that we absolutely cannot stomach the idea of taking political risk to defend the rule of law, at precisely the moment when it is indisputably and publicly under attack.
For proof of this, just look at a brief exchange captured by Talking Points Memo:
U.S. Attorney General nominee Loretta Lynch told senators at her confirmation hearing Wednesday that waterboarding is “torture” and therefore “illegal.”
She was asked about the issue by Sen. Patrick Leahy (D-VT), the ranking member of the Judiciary Committee.
“Waterboarding is torture, senator,” Lynch said.
“And thus illegal?” he asked.
“And thus illegal,” she said.
Here you have a public admission that high-ranking American officials have broken the law. And nobody—nobody—is naive enough to expect that Lynch, as the nation’s top law enforcement official, will actually enforce that law. Why should they? The President himself has admitted that the United States tortured prisoners, but he evidently has no intention of holding anybody responsible.
Even worse, this awkward admission cannot be chalked up to occasional, unintentional lapses into truth. High-ranking Administration officials have consistently stated that Bush-era abuses were torture. Shielding those responsible for torture from prosecution puts the United States in violation of the Convention Against Torture. The only way to uphold the United States’s legal obligations—and its commitment to the rule of law, not the rule of political expediency—is to begin prosecutions. There is no other way out of this conundrum. It is an ongoing embarrassment to watch Obama Administration officials concede, again and again, that Americans broke the law and that they have no intention of doing anything about it. In some ways, it is an even more humiliating posture than the insistence of some Bush Administration officials that they were guilty of nothing because their actions did not amount to torture, an Orwellian bit of redefinition that at least had the virtue of cynical consistency. This Administration instead finds itself committed to the position that yes, laws were broken, but no, we don’t care very much—or at least, not enough to hold anyone responsible and thus ensure that these crimes don’t happen again. Anyone who takes the country’s professed ideals even remotely seriously should regard it as a scandal. And even those who worry about the political fallout from prosecutions should, if nothing else, be scandalized by the fathomless cynicism enabling these casual, unremarkable admissions that, really, we don’t care about the rule of law after all.