The law is clear

December 12, 2007

It's time to stop this mincing little soft-shoe routine over the issue of torture. Torture is not difficult to define, and neither is the extent to which agents of the executive branch can use it. Torture is immoral and un-American and of doubtful utility - but it is also a criminal act. And anyone who commits torture is committing a crime.

The CIA's admission that it destroyed at least two tapes of sessions that employed techniques of "enhanced interrogation" is an admission that it destroyed evidence of crimes. It doesn't matter who gave what legal opinion approving the destruction of the tapes, except that it implicates those who did so as co-conspirators.

It also doesn't matter that the torturers were just following orders. A crime is a crime.

There are others who share liability for this sorry chapter of American lawbreaking - and these are the people who gave the orders for torture, who devised legal opinions that seemed to permit torture, and who oversaw the agencies that committed torture. By our reckoning, this includes people who were at or near the top of the CIA, the Justice Department, the Pentagon and the White House.

Will Michael B. Mukasey, the new attorney general, pursue this destruction of evidence that might have been central to proving the case against those who promoted torture, or will he equivocate as he did in his confirmation hearings? Eventually, there must be either justice or an acquiescence to the moral corruption of the American legal system (a corruption that future scholars may one day trace back to its roots in Bush v. Gore, the Supreme Court case of 2000).

Richard Nixon lost the presidency over an 18-minute gap in a White House tape recording. From what we know of them, these videotapes point the finger just as accusingly at those in charge - more so, in fact, because where the Nixon tape would apparently have shown him engaging in a conspiracy to commit a crime, these tapes show the actual crime being committed.

Some argue that in certain cases, torture can produce actionable intelligence. We're skeptics about that, but if an intelligence officer feels moved to torture a suspect because of the presumed urgency of the information to be obtained, that officer should be prepared to face the subsequent legal penalties. If he saved the nation, let the president pardon him for his crime. It's not the president's role to aid and abet him in committing the crime.

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