Like Timex, putting them to the torture test

Lots of bloggers have, correctly, complained about the consensus among essentially all national level politicians and everyone else who has much of a voice in national media that prosecutions or other consequences for the present's administrations crimes, be they torture or surveillance-related, are totally inappropriate and shouldn't be discussed in polite company. But I don't think I realized quite how far this had gone until I took a look at the five people who the Times picked to pose questions for Attorney-General nominee Eric Holder. On first glance, it seems like an almost balanced panel, with Jeff Rosen and Noah Feldman as the liberal, or at least Democratically-affiliated, members, and Eugene Volokh, Jack Goldsmith,1 and Charles Stimson representing those on the right. But not one of the five is a liberal torture critic.

Feldman has one anti-torture piece I can find, but his embrace of the “harsh techniques” and the implication of his question that believing your acting under color of law should be enough to avoid prosecution, combined with some of his past work, don't leave me feeling charitable towards him. Rosen, while sometimes a jerk, hasn't written anything pro-torture that I know of, may have an anti-torture piece somewhere (but I looked briefly and didn't find one) and wrote an extensive article about Goldsmith's good work at the OLC, where Goldsmith's good work largely consisted of questioning previous legal justifications of torture. But four of the five of them ask a question which either implies opposition to torture prosecution (Feldman and Rosen), or, more frighteningly, suggests that they're worried the Obama administration won't torture enough (Goldsmith, Volokh). The only who doesn't imply either of those is Stimson. Stimson is best known for losing his job over this incident (scroll down five posts, start reading, and then scroll back up through the rest), and the fact that he's even being invited onto the op-ed page is disgusting. Oh yeah, Volokh (he's very smart and I still read him in some contexts, but seriously, that was beyond the pale. And his retraction doesn't retract the worst parts). Not one question for Holder asks what he'll do to make sure torture ceases, let alone asks what he'll do to punish people who broke the law by torturing.

1. As mentioned below, I'm familiar with the good work Goldsmith did at the OLC following the disastrous period in which Bybee was in charge. He's still a conservative Republican.