Transparency won. The Obama administration’s decision to release a group of legal memos discussing specific interrogation techniques used against suspected terrorists was made over the objections of the intelligence community — and the new administration should be commended for standing up for its principles. The accompanying statements from the president and attorney general ruling out the prosecution of intelligence agents who relied on the legal advice contained in these memos should not be a surprise and are completely justified.
But let’s get real. Despite yesterday’s release and as much as they deserve it, the story of Bush administration officials authorizing torture is not going to end with those responsible behind bars. Yet just because the story won’t end in jail time does not mean that it has to end badly. The new administration’s hope that the memo release will allow them to “turn the page,” however, makes a messy conclusion more, not less likely.
Doing nothing invites new problems, but all of the focus on a futile quest for punishment is missing what should be the primary objective of any look at the Bush torture policies: Preventing them from ever happening again. We need to reach a recognized consensus that the interrogation and detention programs implemented by the Bush administration were not in the interests of the United States at any time or for any reason. That’s the best way to end this tragic story.
We know that senior officials in the Bush administration authorized torture because they have admitted it and now we have seen exactly what was approved. There is no gray area. No rational person can plausibly claim that these techniques — such as suffocation by water, hanging by the arms, prolonged shackled stress positions, beatings by the use of a collar, beating and kicking, confinement in a box, sleep deprivation, prolonged exposure to extreme cold temperature, and forcing detainees to urinate and defecate on themselves — are not torture, no matter what legal theory was concocted to authorize them.
The main obstacle to criminal prosecution is not the facts, it’s the virtual impossibility of conducting a trial in which both the prosecution and defense would rely exclusively on classified and highly sensitive intelligence information. There are procedures that allow for the use of classified material in court, but the defense in these cases would demand access to huge amounts of intelligence information related to their decision-making process that goes far beyond the methods of interrogation. However, we may wish that it were different, a trial like this is just not feasible.
With the publication last week of a leaked 2007 report from the International Committee of the Red Cross, the US government now has an affirmative obligation to investigate the Bush torture policies. The Convention Against Torture requires, “each state party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.” Wide latitude is given to what form that investigation should take and certainly allows for avoidance of criminal prosecution. But simply releasing the faulty legal reasoning sought by the Bush administration to provide cover for torture is clearly not sufficient to satisfy America’s obligations and will likely only increase the pressure and lead to counterproductive attempts to prosecute Bush administration officials in foreign countries.
What is needed is a nonadversarial, nonpartisan commission to investigate thoroughly the actions of the last administration related to interrogation and detention.
