Where This Buck Stops
So you're through torturing people. And you're never, ever going to do it again. You're not that kind of country. What on earth were you thinking? And what is the best way to put it all behind you?
The United States is far from the first nation to misbehave, regret it, make itself this promise and then face this kind of question. The question might be about things far worse even than torturing a few terrorism suspects. But the possible answers still boil down to three: (1) forgive and forget; (2) forgive but don't forget; and (3) don't forgive and don't forget.
Option One is off the table. In a genuine advance of civilization, some variation on a "truth commission" has become almost mandatory as proof of sincerity when the good guys (or at least when different guys) take power. President Obama frankly longs for Option Two, saying (with some justification) that he needs to worry about the future, not the past. But many Americans feel that prosecuting the perpetrators is required for reasons of catharsis or "closure." They also remember being told from their youngest days that no one is above the law. Why should torturers, of all people, be forgiven?
Most prosecution enthusiasts aren't all that thirsty for the blood of the CIA bureaucrats who actually conducted the torture of suspected terrorists. Their anger and desire for retribution are aimed at the Bush administration officials who ordered the torture of suspected terrorists and those very near the top who knew all about it and apparently approved (or did nothing to stop it), especially the Justice Department lawyers who wrote those fatuous memos claiming that practices such as "waterboarding" were actually within the law.
The trouble with this desire for retribution isn't that it goes too far. The trouble is that it doesn't go far enough. There is another group -- a large one -- that stood by doing nothing while Americans grabbed people off the streets of foreign countries, took them to other foreign countries (because we don't allow this sort of thing in the United States!) and tortured them until they said whatever our government wanted to hear. If you're going to punish people for condoning torture, you'd better include the American citizenry itself.
Sixty-two million of us voted to reelect George W. Bush in 2004. That was more people than had ever voted for a presidential candidate up until then. (In 2008, Obama got 69 million.) Unlike 2000, Bush's 2004 victory was solid and unambiguous.
Bush was so unpopular by the time he left office that it's hard to believe he was reelected four years earlier. That gave him and his associates four more years to violate America's dearest principles. But plenty of torture had gone on by the end of his first term. If you're looking to punish the ultimate decision makers, you can't stop at the Justice Department or even the White House. You've got to go all the way to the top. You have to ask the famous Howard Baker question about the voters themselves: What did we know, and when did we know it?
Let's take what has become the most notorious practice of American torturers: waterboarding. The first reference to "a technique known as water boarding" in the Factiva news media database is an Associated Press report that the CIA didn't have enough trained torturers and had to use outside consultants familiar with such techniques. That ran on May 12, 2004, and referred to an article that already had appeared on the New York Times Web site. Between April and November of that year, there were dozens of articles about torture in general and waterboarding in particular in major print media outlets, on the Web and on TV, many describing it in detail and some straightforwardly labeling it as torture. Millions of people saw these reports, knew that torture was going on and voted for Bush anyway. There is no way of knowing how many of those who voted against him were affected by the torture question. A good guess would be "not many." (Not me, for one, I'm sorry to say.) Bush's opponent, John Kerry, never mentioned waterboarding.
Indignation comes cheap in our political culture. Polls give the impression that the proper role of voters is to sit like a king passing judgment on the issues as they pass by like dishes prepared for a feast. "No, I'm not in the mood for waterboarding today, thanks. But I think I'll have another dab of those delicious-looking executive-pay caps." Prosecuting a few former government officials for their role in putting our country into the torture business would not serve justice or historical memory. It would just let the real culprits off the hook.