For exposure of misdeeds to have any punitive sting, those responsible for the bad acts must have the capacity to feel shame and remorse for their conduct. Otherwise, what you have is an empty exposure of some true believer behavior, and no real punishment as a result.

Alas, this is what we currently have in a Bush regime wherein those pushing the policies which led to officially-sanctioned torture — in violation of the very laws we, as a nation, fought so hard to establish on human rights grounds — believe they were right to do so and that all those who question their actions are simply wrong.

And nothing will convince them otherwise, because they are, indeed, true believers in their purity. One only need read Jane Mayer’s gripping backstage narratives to know this.

So, the question becomes one of accountability for the actions.

Is exposure so that the nation as a whole can come to its own conclusions about wrongdoing enough? Or must some punishment with teeth enough to get the attention of malefactors in this mess be meted out? What is justice here — and is it even possible to accomplish?

The Iqbal case seeks to answer a number of these surrounding questions, including whether high-level government officials can ever be held to account beyond attempted public shaming through exposure of misdeeds. SCOTUS heard arguments on the case earlier this week:

Mr. Iqbal was among thousands of Muslim men rounded up after the Sept. 11 attacks. Some of them were considered to be “of high interest,” and they were held in a special housing unit of the Metropolitan Detention Center in Brooklyn….

There was general agreement among the justices that the bar for starting a lawsuit, however low, must at least include plausibility. But the justices seemed divided over whether it was conceivable that the defendants here created or condoned a policy rooted in unlawful discrimination.

Among those accused of discriminatory policies is Ashcroft and Mueller, and the ensuing argument on the merits of the case got quite heated (and arcane) on the issues of public accountability and official policies versus what Justice Scalia seemed to intimate was a liability exception for bad behavior in times of national crisis:

…justices pondered the reach of civil lawsuits targeting public officials who allegedly abuse civil rights, the ability of the nation’s leaders to go about their work without harassment and whether the balance is altered, in the words of Justice Antonin Scalia, "after an attack on this country of the magnitude of 9/11."

I’d suggest that Justice Scalia, Chief Justice Roberts and the other apologists-come-lately on the Court re-read Korematsu and about its aftermath, but I’m not certain it would do any good given their already seemingly pre-formed mindset on this.  

Given the potential impact of decisions in a crisis, shouldn’t the balance skew toward an evaluation of the long-term effects of a lengthy strategy versus what was not merely a short-term emergency measure — and respect for the rule of law versus an internal attempt to circumvent it for the purposes of power consolidation and a wholesale strategy to upend the balance of powers toward the executive not just for an emergency term — but for much, much longer?  

Does no one read the federalist versus anti-federalist arguments any more, and the well-founded fears of the use of warfare as a cover for power consolidation in the executive?  (Not a new concern, btw.)

Questions about the judiciary being the proper venue for accountability have some merit, in terms of precedent and policy.  Which brings us back to the legislative branch:  The Senate Armed Services Committee issued a fairly scathing first pass report on Rumsfeld and his various DOD minions who scuttled about to help gut the UCMJ right after 9/11, so they could live out their 24 fantasies in real time.  As the report makes clear, their policy scheme endangered American interests:

Moreover, the report stated, these abuses did not keep Americans safe, as the Bush Administration claimed, but actually undermined our national security because they “damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.”

Spencer has covered this here and here, but there is a point brought out by Jack Balkin, pulling from something Ambinder and Glenn have both touched on as well, that I want to amplify.  To wit:

…they have much in common with the problems of any number of countries transitioning to democracy from a long record of human rights abuses. These examples show how difficult it is for a country that has violated human rights in the past to stop.

How can the public know that there has been accountability, appropriate weight given to past complicity or a rethinking of past abuses and missteps, when most of what the public would need to know to evaluate those issues is hidden behind a wall of national security secrecy. Sometimes for good reason, certainly, to truly protect assets and information sources and methods, but too frequently for CYA purposes for the folks at the top making the very decisions in question.

As the report clearly said, what has been done has made us less safe.  And that does not enhance our national security over the long run, now does it? 

If we are truly to make necessary changes, to mend that which is broken and to reform what is in dire need of repair? How do we select people with the necessary background to do the work without knowing where their flaws are?  Often, the people most qualified for a job are folks who have previously made mistakes and learned the hard lessons from them — but how can you ever know if lessons were, in fact, learned when so much is kept in a black box?

How can we move forward if we keep planting our feet in the same pool of quicksand?