Pyrrhic Torture Trials

Third, punishment is not the only way to prevent wrongdoing. If someone is caught breaking into your house, by all means, press charges. But you might also want to consider installing an alarm system or buying stronger locks. Responsible congressional oversight, an essential tool for checking executive branch excesses, was lacking for much of the Bush administration.

Fourth, there is a cost to pursuing criminal charges. As appalling as waterboarding is, for example, it was pursued with the analysis and approval of lawyers who concluded, however wrongly, that it did not rise to the level of torture. If government officials cannot safely rely on legal advice, they will err on the side of excessive timidity.

Fifth, focusing governmental energy on uncovering and punishing the actions of the past will inevitably drain energy and political capital from the new administration. It would be a better use of the administration's time to figure out how to close Guantanamo and deal with the remaining prisoners.

I am not arguing against any criminal prosecution of any Bush administration official no matter what the facts -- I'm just saying that the bar is awfully high. Lying to investigators and covering up questionable activities should be prosecuted because such conduct frustrates the capacity of other government checks to function.

And prosecution would be justified if there is evidence, as Obama put it, of "genuine crimes as opposed to really bad policies . . . that there were high officials who knowingly, consciously broke existing laws."

Really bad policies? No question about that. Conscious law-breaking? I'm doubtful -- and skeptical, too, that the symbolic benefit of any such prosecution would outweigh the inevitable costs.

marcusr@washpost.com