Torture on Trial, Already

The running debate in Washington on whether to prosecute either CIA interrogators or the policymakers who authorized the harsh techniques they used is unlikely to yield any new information or legal actions any time soon. Lawmakers and Obama administration officials are essentially pondering questions already largely answered on the issue. A series of books, news articles, de-classified documents and public disclosures by Bush administration officials have revealed what interrogation methods were used, who authorized them and who is answerable legally. Continuing to wonder aloud about what to do now may prove cathartic to many in Washington, but it’s unlikely to produce any meaningful accountability for what many have long considered the commission of war crimes by the Bush administration. What some seem to have forgotten amid the latest headlines in the U.S. torture saga is that the issue is headed to court in a variety of venues at present anyway. A host of legal proceedings related to torture, detention and surveillance were already moving forward even before President Obama took office. The slow, quiet machinations of those are likely to produce some measure of accountability before Congress or the White House acts.

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.