WaPo on OLC memos: The Accountability Question

The Accountability Question. WaPo Editorial
The right way to deal with torture's legacy
WaPo, Friday, April 24, 2009

THE APPARENT confusion within the Obama administration about whether to prosecute officials of the previous administration for committing torture is not surprising. Two fundamental principles are colliding in this matter, and it's not easy to achieve a fair outcome that reconciles both.

On one side, you have the sacred American tradition of peacefully transferring power from one party to another every four or eight years without cycles of revenge and criminal investigation. It's one thing to investigate Richard Nixon for authorizing wiretaps and burglaries in secrecy, outside the normal channels of government, for personal political gain. It's another to criminalize decisions authorized through all the proper channels, with congressional approval or at least awareness, for what everyone agrees to be the high purpose of keeping Americans safe from terrorist attack. Once you start down that road, where do you stop? Should Bill Clinton, Sandy Berger and their team have been held criminally or civilly liable for dereliction of duty 3,000 people died in the Sept. 11, 2001, attacks, given that they knowingly allowed Osama bin Laden to flee Sudan for sanctuary in Afghanistan? What if the next administration believes that Barack Obama is committing war crimes every time he allows the Air Force to fling missiles into Pakistan, killing innocent civilians in a country with which we are not at war?

Such concerns are heightened when the country is at war, as we in fact are, though in the daily life of most Americans it might not seem so. Al-Qaeda terrorists still plot to inflict great damage, perhaps on a scale far larger than in 2001, and the country needs its guardians in the armed forces, the CIA and elsewhere to focus on defending the country against that threat, not themselves against legal action. The Obama administration needs to attract the best possible talent into government, and then expect from those who serve unflinching advice on hard calls. Neither will happen if public service routinely is followed by the need to hire private attorneys and empty one's bank account.

AND YET, on the other side, we have this: American officials condoned and conducted torture. Waterboarding, to take the starkest case, has been recognized in international and U.S. law for decades as beyond the pale, and it was used hundreds of times during the Bush years. Eric H. Holder Jr., the attorney general of the United States, has stated flatly that it is illegal. In a country founded on the rule of law, a president can't sweep criminality away for political reasons, even the most noble. When the United States sees torture taking place in other parts of the world, it issues some pretty simple demands: Stop doing that, and punish -- or at least identify, and in some way hold accountable -- those responsible, so that the practice will not be repeated. How can a country that purports to serve as a moral exemplar ask any less of itself?

The answer does not lie with those congressional Democrats who are eager to put the entire Bush administration on trial. Nor, as President Obama has discovered this week, can it be found in his own wishful calls to look forward rather than dwelling on the past. As other nations have discovered, the past will haunt the present until it is investigated and openly dealt with. And although we have misgivings about international justice intruding on the sovereignty of democratic governments, it's also true that if the United States doesn't examine its own record, other nations will have a better claim to do so.

To an extent, such an examination is going on all around us. The Senate intelligence committee is conducting a review. The Senate Armed Services Committee, having been mostly AWOL when it could have made a difference, has issued a useful report. The Justice Department's Office of Professional Responsibility is examing the conduct of Bush administration lawyers. It may seem, after a week of constant news coverage and newly published legal memos, that there isn't much left to learn.

But wide holes remain in public knowledge of how torture came to be official U.S. policy and how that policy was implemented. The efficacy of "enhanced interrogation techniques" remains in dispute. We don't know if some interrogations went beyond even what the Justice Department had approved. The extent of congressional knowledge and approbation remains unclear. And as former defense secretary Donald H. Rumsfeld might note, we don't know what we don't know.

SO THERE remains, as we have long argued, a need for a bipartisan commission composed of respected leaders to conduct a thorough review. Mr. Obama should take the lead in forming such a panel. It should conduct its work deliberately and issue its findings publicly.

In the end, no such panel can answer every question. We will never know what detainees might have disclosed if interrogators had persisted with more humane techniques. We can't measure precisely the damage inflicted on the United States and its soldiers by the fallout from Abu Ghraib and Guantanamo. But a presidential commission could produce the fullest, least-heated account possible.

Once it did so, prosecutions would not be the only option. Based on what we know today, we do not believe they would be the best option. For reasons laid out at the beginning of this editorial, we would be extremely reluctant to go after lawyers and officials acting in what they believed to be the nation's best interest at a time of grave danger. If laws were broken, Congress or the president can opt for amnesty. In gray areas, the government can exercise prosecutorial discretion. But the work of the commission should not be prejudged. And the prudence of not prosecuting, if that proves the wisest course, would earn more respect, here and abroad, if it followed a process of thorough review and calm deliberation.