Following up on the last point, about why some Bushies may publicly attack Obama but privately agree with him.
We're nearing the end of Barack Obama's first year as president. My advice to him would be to use the occasion to pardon the torturers.
I don't think that liberals sufficiently appreciate the difficult position that Republicans hold because of torture. Matt Yglesias has a good item on torture today, and the NYT has a solid editorial on the subject. The Times argues that a Supreme Court ruling against torture would restrain a future administration. I think that's wrong, however; the Bush administration was faced with clear law, and managed to believe in potential loopholes that they claimed granted them permission to do whatever they wanted to do. The law may be able to punish executive branch misbehavior after the fact, but it's unlikely to prevent it.
That's why it's so important to prevent what's happening now, which is a hardening of the pro-torture position of the Republican Party. Yet the threat of prosecution makes it hard for anti-torture Republicans to speak up; their position, if they are honest, requires throwing a good deal of the Bush administration in jail, and naturally they are not eager to assist that effort. After all, most anti-torture Republicans probably do believe that the Bush administration made understandable mistakes in the heat of battle, not that they Bush administration was full of war criminals just looking for an excuse to carry out heinous deeds.
As I've argued, the best way to get anti-torture Republicans to speak up -- the only way to prevent a pro-torture GOP -- is for the president to pardon everyone involved, beginning with George W. Bush. Obama should express sympathy for those he pardons. He should, whether he believes it or not, say that they were acting with the best of intentions, and that they only did what they did because they sought to protect the American people. But he should make it clear that what they did was wrong, and was illegal, and was counterproductive. And he should appoint a commission to fully document exactly what happened, and how it did or did not affect national security.
The best result, as I've said, is for as many of those he would pardon to accept the pardons; I don't think it's entirely out of the realm of possibility that George W. Bush himself would do so, with a Reaganesque statement of not-quite-responsibility. Here, I'll write it for him:
"I accept this pardon not for myself, but for the principles of democracy for which my presidency fought so hard. I have always spoken out against torture, and I did not think at the time that our policies would result in torture, but the evidence is that the policies we initiated wound up crossing the line. I encourage everyone to tell the simple truth to the new commission, letting the chips fall where they may, because I continue to believe that America should always live up to the highest standards of human rights and democracy."