Here, however, I want to argue from the point of view of strong opponents of torture, for those who find torture morally abhorrent and practically counter-productive. They might not care about my argument from the point of view of Obama (and the Democrats); they might be perfectly willing to give up every other item on the Obama agenda, including reelection, in order to put an end to American torture. That's a reasonable position to take -- and what I say to them is that pardon plus commission is the right path.
First, where we are now. Greenwald nails it:
What would stop a future President (or even the current one) from re-authorizing waterboarding and the other Bush/Cheney torture techniques if he decided he wanted to? Given that both the Bush and Obama administrations have succeeded thus far in blocking all judicial adjudications of the legality of these "policies," and given that the torture architects are feted on TV and given major newspaper columns, what impediments exist to prevent their re-implementation?Obviously, from this point of view, there's no need to talk about what the administration is doing now. (1) selective prosecutions; (2) massive prosecutions; (3) pardon. In each case, presumably the prosecutions or pardon would be accompanied by something like a Truth and Reconciliation Commission. My feeling is that selective prosecutions is probably a non-starter. I think it's very likely that a great many people, from those who actually carried out the policy, to those who developed it, to those at the very top of the Bush administration who chose it -- including the President and Vice-President of the United States -- commited criminal acts. Perhaps prosecutors could stop short of those two, but I'm not sure there's a good justification for it, and at any rate torture opponents believe that Cheney, at least, should be prosecuted.
The question, however, is not whether Cheney (or Bush, or Yoo, or CIA operatives) deserve to be in jail -- but how to answer Greenwald's rhetoric questions. What remedies now will make future torture less likely?
If Obama and Holder decide to prosecute, there's little question of the results: Republicans of all stripes would rally around their now-persecuted friends from the Bush administration. Republicans of all stripes would feel the need to justify the actions that the torturers took, and to do so they would double down on tales of how effective torture was at supposedly stopping all sorts of nasty terror attacks. Republicans, I tend to think close to unanimously, would refuse to have any part in any Truth Commission. They wouldn't serve on it, and they wouldn't accept its results; they would brand it a partisan witch hunt. Torturers and those who worked with torturers wouldn't testify. How could they? They'd be incriminating themselves and their coworkers. So the commission might demonstrate some of the truth, but would achieve no reconciliation at all. The deterrent factor for the future would rest on one thing alone, the ability of the Justice Department to obtain convictions and serious sentences, although such sentences would be gone, at least for policy makers once the next Republican president was sworn into office. And yet even then, the more Republicans solidify into the torture party, the more they would be likely to change the law and treaty obligations once they win the White House. In my view, a not at all unlikely result of prosecutions is withdrawal from Geneva during the next Republican administration.
Would pardons avoid this result? I can't guarantee it, but I think it radically changes the incentives. Recall that I'm recommending a blanket pardon for everyone involved in torture, along with a serious commission that would lay out exactly what happened and all the things wrong with it -- and I'm also recommending working hard to try to get as many senior Bush administration officials as possible to publicly accept those pardons. And I'm recommending a generous pardon, with President Obama granting the war criminals (no, he wouldn't call them that) the best of intentions.
OK, what happens with pardon plus commission? Hard core supporters of torture, including Dick Cheney, will certainly continue to press their case. But there's a real chance that they can be marginalized within their own party. Once his son is no longer in legal jeopardy, and assuming that his personal views are anti-torture (which I think is likely), then George Herbert Walker Bush might well be persuaded to speak out publicly and privately on the issue. Other Republicans respected by Washingtonians -- Lugar, James Baker, Dole, former CIA, FBI, and other government leaders, perhaps McCain -- might follow. As I've said before, I think it's realistic to hope that some of the Bush folks might join that chorus, perhaps even the former president himself. As Andrew Sullivan has done, Republicans could invoke Ronald Reagan (not to mention George Washington and other American heroes) in making their case against the acts that took place -- as long as they do not also have to condemn the people who performed those acts. With them on board, and with the threat of prosecution no bar to testifying, a real Truth Commission could function. Such a commission (and all commissioners, Democrats, Republicans, and others) would take it as a given that the United States should abide by Geneva, and therefore could consider evidence of any possible gains from torture in the proper context.
Basically, I think criminal sanctions on past war criminals are far less likely to prevent future war crimes than would a restoration of the American consensus against torture. I can't guarantee that pardon plus commission would achieve that, but every bit of political instinct that I have says that prosecutions would prevent it. If one is really against torture, it seems to me that preventing future torture is far more important than punishment of the torturers -- the latter should only happen if it is a means to an end, not for revenge, and not even for justice. The current best path toward that end is a generous pardon, as hard as that might be to swallow for opponents of torture. Separate the acts from the actors, and the chances of preventing future acts are much, much, better.