Empathy Surfaces As A Big Reason Not To Prosecute Torture Offenses.

In an interview with Politico yesterday, Rep. Pete King blasted Eric Holder's decision to open a narrow probe into the possibility that CIA interrogators may have broken the law when they went past the torture guidelines established by the Bush administration:

"You're talking about threatening to kill a guy, threatening to attack his family, threatening to use an electric drill on him — but never doing it," King said. "You have that on the one hand — and on the other you have the [interrogator's] attempt to prevent thousands of Americans from being killed."

Despite the conservative war on "empathy" in the law that reached its zenith during the Sonia Sotomayor confirmation hearings, empathy has emerged as the primary argument on the right against prosecuting those involved in torture. In his statement responding to the release of the documents, Dick Cheney said, "The people involved deserve our gratitude. They do not deserve to be the targets of political investigations or prosecutions."

During the hearings, Sen. Jeff Sessions and others memorably tried to paint Sotomayor's thoughts on empathy as "bias" that would affect her rulings based on who the plaintiff was. Tom Coburn told Sotomayor that "I, as someone who comes from the heartland, believe, as do the people I represent in Oklahoma, that there is a foundational document and statutes and treaties that should be the rule rather than our opinions.” But in responding to whether or not laws were broken in the interrogation of terrorist suspects, conservatives have argued forcefully that the targets were bad people, or that we were in imminent danger, so the law ought not to matter. As Michelle Malkin put it, she's shedding "no tears" for Khalid Sheik Mohammed. Conservatives now believe that laws should be upheld based on subjective judgments of who is a good person and who isn't. Never mind that even the CIA admitted in the IG report that innocent people were tortured.

This isn't really a divergence from conservative views of the law -- conservatives simply choose different subjects on which to express empathy than liberals do. After spending months arguing that the law is unbending, objective and not subject to interpretation, conservatives are now demanding that the Justice Department ignore the fact that laws were broken because of who the potential targets of prosecution might be.

-- A. Serwer