The United States of America in recent years had a decided policy to torture detainees at prisons in Iraq and in secret CIA detention facilities around the world. There is, sadly, no longer any serious doubt that this is the simple truth.
We also now know that a series of legal memos were written, after this program was already in place, that the Bush Administration claims provided a legal justification for the torture program. Since there is ample US law forbidding torture, and the US is also a signatory to both the Geneva convention and to the anti-torture treaty of the United Nations (signed, by the way, by Republican hero Ronald Reagan), and since many of the techniques in question, including waterboarding, have been prosecuted by the United States in the past as torture, it is hard to see how any independant reading of the law could come to an honest conclusion that these techniques are anything but illegal.
I'm choosing my words carefully now. The memos... are at the most generous reading a very poor piece of work. For a start, the failure to mention the several occassions on which the US has prosecuted waterboarding is notable. A failure to review the extensive scientific literature on psychiatric breakdown relating to some of the torture methods discussed.
Those facts, plus the fact that these memos were written after the torture program was already in place - and even long after the abuses at Abu Ghraib (which line up exactly with the practices described in the memo except for being a LESS harsh) strongly suggest that these memos are not genuine legal advice, but an effort to cover up or obscure activities that are clearly against the law.
That lawbreaking - IF PROVEN in a court of law - looks likely to go to the very top of the civilian leadership. Namely to Bush and Cheney themselves.
Now here's the thing. David Broder, of the New York Times seems to believe not only that these crimes should not be persecuted, but also that those who advocate for such prosecutions are motivated by vengeance. Peggy Noonan says no good could come from even releasing the legal memos themselves, and that it's probably best to just "just keep walking".
And President Obama himself has indicated that his personal preference would be to get on with the nation's business and not look backwards.
Actually, that would be my preference too. But it isn't possible.
Personally, I'm sick to death of being angry and disappointed in my country. I worked to elect Barack Obama in party because I did not want to spend my time wondering whether my country was doing these things. I would love to move on.
But we're a country of laws, not of men. And although prosecutors always have certain amount of discretion in terms of which cases they bring to trial, I doubt whether this can be one of these cases - and I'm certain it shouldn't be - because:
1) It's too big. Not at all an instance of "a few bad apples on the night shift" but apparently and allegedly a massive conspiracy to use the full force of the US Government in a secret program to break domestic and international law. This makes it a bigger deal than Watergate, Iran Contra. Although junior participants (such as the CIA officers involved) may be allowed immunity in exchange for cooperation, I don't see how a criminal conspiracy of this scale could be covered up.
2) We still don't know enough. Investigations must carry on so that we can understand what happened, how it happened, and how it was allowed to happen. A recent report in the New York times suggests that one of the reasons for the torture was a determination by the administration to find evidence of an Iraq-Al Qaeda connection that didn't exist. That would make this a spectacular failure of national security and intelligence gathering - which we MUST understand in order to never repeat.
3) Failing to prosecute now would make it easy, perhaps inevitable, for such techniques to be used again, and would suggest that the legal argument being used (that if one's intentions are good one is authorised in using illegal torture) is valid.
4) And finally, let me just quote from the New York Times article (read the whole thing):
According to several former top officials involved in the discussions seven years ago, they did not know that the military training program, called SERE, for Survival, Evasion, Resistance and Escape, had been created decades earlier to give American pilots and soldiers a sample of the torture methods used by Communists in the Korean War, methods that had wrung false confessions from Americans.
Even George J. Tenet, the C.I.A. director who insisted that the agency had thoroughly researched its proposal and pressed it on other officials, did not examine the history of the most shocking method, the near-drowning technique known as waterboarding.
The top officials he briefed did not learn that waterboarding had been prosecuted by the United States in war-crimes trials after World War II and was a well-documented favorite of despotic governments since the Spanish Inquisition; one waterboard used under Pol Pot was even on display at the genocide museum in Cambodia.
They did not know that some veteran trainers from the SERE program itself had warned in internal memorandums that, morality aside, the methods were ineffective. Nor were most of the officials aware that the former military psychologist who played a central role in persuading C.I.A. officials to use the harsh methods had never conducted a real interrogation, or that the Justice Department lawyer most responsible for declaring the methods legal had idiosyncratic ideas that even the Bush Justice Department would later renounce.
The single most important fact to know about these techniques is that they were designed to extract FALSE confessions, not good intelligence. It's possible to believe (just about) that leading figures administration and even in the US intelligence community didn't know that, but it would be dangerous to the entire nation to allow anyone who reads the newspaper to go on believing that one day more. We need a trial to get the truth out.
And, yes, as Dick Cheney keeps insisting, by all means, let's include in this assessment any instances in which these techniques can be said to have "worked." They are totally irrelevant to the question of criminal liability, of course, ("Your Honor, I admit that I did steal the car but in my own defense this committing this crime did allow me to get to my appointment on time.") but let's include every single thing there is to know about all of this, in front of a jury of citizens, presided over by a neutral judge under the rule of law.
Let's, in other words, let justice take its course. It would be long past time.