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Pyrrhic Torture Trials

By Ruth Marcus
Wednesday, December 31, 2008

Should Bush administration officials be put on trial for crimes such as authorizing torture?

Personally, I'm just relieved to have this crowd heading out of office and its policies -- on torture, on indefinite detention, on warrantless wiretapping, on overweening executive power -- soon to be inoperative.

But the imminent arrival of the Obama administration has sparked a renewed clamor for criminal investigation and prosecution in some quarters on the left. Vice President Cheney stoked the flames with an ABC interview in which he was typically unrepentant about the waterboarding of Khalid Sheikh Mohammed and particularly explicit about his own involvement.

Meanwhile, the Senate Armed Services Committee released a report concluding that Donald Rumsfeld's decision as defense secretary to authorize "aggressive interrogation techniques" was "a direct cause of detainee abuse" at Guantanamo Bay.

New York Democratic Rep. Jerrold Nadler wrote to Attorney General Michael Mukasey demanding a special prosecutor. (Good luck with that.) The New York Times called the Senate report "a strong case for bringing criminal charges" against Rumsfeld and Pentagon legal counsel William Haynes, and maybe even Alberto Gonzales and Cheney aide David Addington.

Not that President-elect Obama seems particularly eager to take that plunge.

"If crimes have been committed, they should be investigated," Obama said in April. Still, he said, "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve."

I touched briefly on this subject the other day, writing that "ensuring that these mistakes are not repeated . . . may be more important than punishing those who acted wrongly in pursuit of what they thought was right."

How, some readers asked, could future law-breaking be prevented if past misdeeds go unpunished?

First, criminal prosecution isn't the only or necessarily the most effective mechanism for deterrence. To the extent that they weigh the potential penalties for their actions, government officials worry as much about dealing with career-ruining internal investigations or being hauled before congressional committees. Criminal prosecution and conviction requires such a high level of proof of conscious wrongdoing that the likelihood of those other punishments is much greater.

Second, the looming threat of criminal sanctions did not do much to deter the actions of Bush administration officials. "The Terror Presidency," former Justice Department official Jack Goldsmith's account of the legal battles within the administration over torture and wiretapping, is replete with accounts of how officials proceeded despite their omnipresent concerns about legal jeopardy.

"In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls," Goldsmith writes.

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

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