Prosecuting Torture

Bloggers and columnists have been calling for the prosecution of former Bush administration officials, and potentially the former president himself, for their roles in designing and carrying out policies of torture of detainees. Sunday on Meet the Press, Rahm Emanuel stated that President Obama does not support their prosecution, though they have since clarified that they're open to the prosecution of lawyers that approved it.

Harsh interrogation tactics were clearly promoted and used by the Bush administration in Guantanamo and elsewhere. The debate is largely a rhetorical exercise around the definition of torture, but ultimately that matters little. If we assume that what was done constitutes criminal acts of torture, then many argue that we need to send a message that people in all levels of government will be held accountable for such decisions and actions. Others might say that the United States must send a message to the rest of the world that it does not stand for torture, and make clear that our policies under Obama have changed. Perhaps the most pertinent reason to prosecute would simply be to carry out our constitutional obligations for justice.

Yet imagining the legal battle and the ensuing political war is a frightening thought. It would likely result in more harm than good. If guilt is obvious, then perhaps we should prosecute the administration officials most clearly involved, but a long, drawn-out legal case will provide little benefit to anyone.

What might be most appropriate is a presidential pardon for torture during the Bush years. A pardon would not absolve officials from guilt, but it would remove them from threat of punishment or prosecution. In other words, it would be equivalent to saying, "what the United States did was torture, it was illegal, but it was not severe enough to warrant a full-scale investigation".

There are two primary drawbacks. First, people may not want to be pardoned, because they may not want to admit guilt, which is basically what happens when they accept it. That's probably not an issue if guilt is obvious, but the pardon is done in advance of an investigation or trial, people may not.Second, this potentially opens up further avenues or desire for prosecution of Americans by the international community. The likelihood of the United States bowing to international legal entities is unlikely, and would be a politically untenable situation for Obama.

We're not going to see Bush, Cheney, or any other high level officials serving prison time, and we shouldn't. Their crimes happened in nearly plain sight, and few cared at the time. Now that there is a Democratic majority, it makes little sense to judge for actions we permitted in the past. It makes more sense to collectively admit our wrongness. Certain individuals may have been guilty, but this was the result of a widespread moral breakdown in the United States, and a pardon would really be an opportunity to accept our mistakes as a nation, and bring about a chance to clearly state how we will change in the future.