From the gun rights lobby, there is this perniciously straightforward quip, against arguments for strengthening gun laws or, say, repealing the Second Amendment, that goes something like this:
"If you make owning guns illegal, or pass laws making it harder for law-abiding citizens to access guns, the only people who will have guns will be the criminals."
This is an argument they use time and time again to argue against tighter gun control laws. They argue that tighter gun laws would only serve to punish law-abiding gun owners, while the law-breaking gun owners would not be affected, since they are already law-breakers.
Putting aside the logical quandary of how law-abiding gun owners and law-breaking gun owners can even be so carefully divided, the problem with this idea is that this argument does not just undermine gun laws, it undermines almost every criminal law to speak of.
If murderers are the only ones who murder, why make murder illegal at all? If you make murder illegal, murderers will just break the law to murder, and non-murderers wouldn't murder anyone anyways, because they are not murderers.
If rapists are the only people who rape, why make rape illegal at all? Rapists are still going to rape whether it is illegal or not, and non-rapists are not going to rape even if it were legal.
And yet we have laws against murder, laws against rape, laws against gun violence. So again, why have these laws at all, if they don't allegedly prevent criminals from committing these crimes?
The best answer I can come up with to counter this contradiction is this:
People are not intrinsically either criminals or law-abiding. People calculate risks and rewards, costs and benefits. One of the compelling factors that determines who commits crime in this society is the society itself, which establishes the punishments for committing crimes or taking actions that society deems unacceptable. By setting laws that define what is legal and what is illegal, and the punishments for breaking those laws, our society creates incentives to follow the law, and disincentives for breaking it. Now, for different people, the conditions where they deem breaking a law to be more beneficial than abiding by it, are constantly changing. A person with a million dollars will not calculate that robbing a bank is worth the risks, but a person with zero dollars might. On the other hand, if there are zero punishments in place for robbing a bank, would that same millionaire still see robbing a bank as not being in their best interests?
This is how I judge our justice system, and how I weigh my arguments for, say, strengthening gun laws, or say, easing punishments for weed smokers.
In the end, what Romero is saying is not an exact analogy to the gun control rhetoric that I cite. However, it runs along the same lines of logic, and in much the same way, flies in the face of much of what we take as fundamental to our system of law, and what ultimately formulates our civilization.
Even though these people have tortured, which is illegal, they should not be punished for their illegal behavior. On the other hand, officially pardoning them gives us an opportunity to establish that torture is not ok, so that future officials will not try to re-instate a new torture program.
This is the argument Romero is essentially making.
Putting aside how ass-backwards that is to anything we normally consider to be justice, if this argument is true, why does this not apply to our entire justice system in the first place?
They should already know torture is illegal. They should already feel that if they tried to allow torture, that they would be punished for it. That should apply to future, present, and past officials.
Because, if that applies to people who commit the crime of torture, why does that not apply to all crime? Drunk drivers should already know drunk driving is illegal. They should already feel that if they try to drink and drive, that they would be punished for it. Are we supposed to let a drunk driver off the hook today because it lets future drunk drivers know that it is not ok? NO! They should already know that. Isn't it true that ignorance of the law is not an excuse to break it?
Whether these officials knew that what they were doing is illegal, whether they had orders or permission, whether they thought it would save lives, none of that matters. In the end, they were committing torture. That is the crime they should be judged against, based on what is established in the letter of the law. Just like any other criminal should expect from our justice system. What protection is there in a justice system that does anything different?
In our system, we established, long ago, that torture was not ok, whether it was approved by senior officials or not, and if so, those senior officials are just as guilty for breaking the law. Letting them get away with it now, so that future officials will not be tempted to allow torture, is exactly the opposite of how our justice system is supposed to work.