Torture and Accountability
By Will MarshallAre political activists losing their ability to distinguish between policy disputes and mistakes and criminal behavior? The distinction is crucial, and it has apparently has been lost on those who demand that the authors of the Bush administration's infamous torture memos be prosecuted for breaking the law.
The activist group MoveOn, for example, is calling for the appointment of a special prosecutor. There's more than a little irony here. After all, MoveOn was born in reaction to a partisan attempt by Republicans to impeach Bill Clinton for his dalliance with a young White House intern. The effort foundered because most Americans could tell the difference between poor judgment and the "high crimes and misdemeanors" standard that impeachment requires.
There's no doubt public officials should be held accountable for their mistakes, but it is dangerous to conflate policy differences with crimes. For one thing, it will likely boomerang by inviting partisan retribution once your opponents come to power. The prospect of being hauled into court will surely constrain bold and decisive action by government officials. At a more basic level, those clamoring for "justice" overestimate the law's ability to provide policymakers with fixed and unambiguous guides to action. In fact, our laws are always open to varying interpretations - that's why we have a whole third branch of government to adjudicate among them.
After President Bush declared his "war on terror," Justice Department lawyers came under pressure from the White House to produce legal justification for harsh interrogation techniques for terrorist suspects. They obliged, essentially by defining waterboarding and other forms of physical abuse as falling short of torture, which is banned under U.S. and international law.
Fulfilling his campaign pledge, President Obama has overridden the Bush policy and made the torture memos public for good measure. Now some activist groups want heads to roll. But whose?
The President has ruled out prosecutions of CIA interrogators, who had no standing to challenge the legal guidance they received. So the prosecution lobby has looked up the chain of command, to the memo's authors. But why stop there? The real architects of U.S. interrogation policies were President Bush and Vice President Dick Cheney, who staunchly defends them as necessary to save American lives.
And it turns out that key Congressional leaders in both parties were briefed on these coercive interrogation methods in the anxious years after 9/11. They can't escape complicity in the policy and for that matter neither can the voters who reelected them. Even now polls show Americans remain closely divided on whether to use torture to prevent imminent terrorist attacks.
In this sense, the impulse to criminalize differences over policy and presidential prerogative is corrosive to democracy. More than legal accountability, we need political accountability. Elections are the best way to stop bad policies. When it comes to judging any administration's actions, there should be a strong presumption in favor of letting the voters decide, rather than the courts.
Barack Obama won the election and, quite rightly in my view, banned waterboarding and other harsh interrogation techniques as violating Americans' creedal belief in the inalienable rights and dignity of the individual. But that doesn't end the matter. There is still the question of whether torture is the only way to get information that can prevent attacks and save American lives.
That's the real reason for a bipartisan, 9/11 commission to examine the whole episode. It should critically assess the claims of Cheney and other top officials that torture is indispensible to Americans' safety. Many professional interrogators deny such claims, saying there are better ways to get suspects to talk and that, in any case, information gained through torture is often unreliable.
Progressives ought not to demand prosecutions that will inevitably look to many Americans like a partisan vendetta. Instead, we should get the truth about torture out and let this case be tried in the court of public opinion.
Will Marshall is president of the Progressive Policy Institute.
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