Prosecuting for Torture

President Obama yesterday answered the question many in Washington have been wondering about since he took office: Will there be prosecutions for torture done during the Bush administration? Obama says no, which is a relief to the ranks of the CIA but a frustration to human rights advocates who hoped to see abusive interrogators and their superiors in court. In releasing new Justice Department memos, the Obama administration effectively crafted a compromise for those on both sides of the argument that allows a fulsome disclosure of the abuses authorized by the Bush White House without the pain of trials. It’s almost as if the White House has appointed itself to be a quiet version of the truth and reconciliation commission many have called for. Which is fine, except that approach leaves one major question unanswered in the U.S. torture saga: How do you prevent it from happening again?

What techniques the CIA used were already widely known before the release of the latest memos. Now we know that there will be no prosecutions of interrogators and presumably none for the senior officials who authorized the abuses. The harshest punishment anyone senior in the Bush administration is likely to face for involvement in torture is a post facto reprimand by Justice Department’s ethics office. And that will stand as a sign for future administrations beyond Obama’s stay in the White House who find themselves considering torture or some other clearly illegal activity that seems justifiable amid whatever crisis they happen to be facing down the road.

The best argument for prosecutions I have read appeared in Harpers’s magazine in December. Attorney Scott Horton essentially makes the case that prosecutions of those involved in torture during the Bush administration should go forward, because that is the best way to check temptation for such activity by future administrations. It’s an article worth reading and considering as many in Washington appear eager to shut the door on the torture issue and move on.