Time for a Souter-O'Connor Commission
If President Obama has been frustrated in his desire not to look back at Bush-era detention practices, it is because he is caught between two fundamental but seemingly irreconcilable American principles.
On the one hand, this is a nation of laws. If torture violates U.S. law -- and it does -- and if Americans engaged in torture -- and they did -- that cannot be ignored, forgotten, swept away. When other nations violate human rights, the United States objects and insists on some accounting. It can't ask less of itself.
Yet this is also a nation where two political parties compete civilly and alternate power peacefully. Regimes do not seek vengeance, through the courts or otherwise, as they succeed each other. Were Obama to criminally investigate his predecessor for what George W. Bush believed to be decisions made in the national interest, it could trigger a debilitating, unending cycle.
By attempting to navigate between these two principles, Obama has satisfied neither. Last week his administration took another step down a path of investigation and recrimination, without coming any closer to truth-telling or justice as most Americans would understand it.
Attorney General Eric Holder asked a special prosecutor to examine the actions of CIA interrogators who allegedly abused foreign detainees. According to a 2004 report by the CIA inspector general, the interrogators threatened detainees with a gun and a power drill, blew cigar smoke at them to make them sick, jumped on their ankle shackles to cause pain and otherwise engaged in degrading practices not authorized by their superiors.
That last phrase is key, because it's not clear that what the interrogators did in these cases was any worse than practices that were authorized: forcing detainees to stay awake for 11 straight days, confining them in small, dark boxes for hours at a time, throwing them against walls, waterboarding. Is waterboarding -- causing prisoners to feel as if they are drowning -- less barbaric than causing them to fear they are about to be shot or drilled? Less deserving of prosecution?
Holder has answered yes to the latter question, at least for now, because it would be unfair to prosecute interrogators for actions they had been told were legal. But consider the three likeliest outcomes of his decision, none of them happy:
The prosecutor, John H. Durham, noting in part that other career prosecutors already had considered these cases and declined to pursue them, could do the same. The interrogators would have been forced into lengthy and expensive legal limbo, but the nation would be none the wiser.
Durham might choose to prosecute just these low-level CIA employees and contractors who overstepped their bounds. Or he might argue that fairness demanded following the chain of command up -- who knows how high -- to those who authorized equally abusive practices, in which case one relatively anonymous attorney will have taken on momentous decisions that Obama will seem to have shirked or settled by default.
There is a better, though not perfect, solution, one that the administration reportedly considered, rejected and should consider again: a high-level, respected commission to examine the choices made in the wake of Sept. 11, 2001, and their consequences.
Such a commission would investigate not just the Bush administration but the government, including Congress. It would give former vice president Dick Cheney a forum to make his case on the necessity of "enhanced interrogation techniques." It would examine the efficacy of such techniques, if any, and the question of whether, even if they work, waterboarding and other methods long considered torture ever can be justified.
Some on the left would object because the goal would not be prosecution and punishment; as in South Africa, amnesty might be promised in exchange for truth-telling. Some on the right, and some in government now, would worry about damaging national security with public airing and rehashing of past misdeeds.
But a fair-minded commission -- co-chaired by, say, former Supreme Court justices Sandra Day O'Connor and David Souter -- could help the nation come to grips with its past and show the world that America is serious about doing so. It could help Americans understand how this country came to engage in what many regard as vile and un-American practices. It might help the country respond better the next time it is frightened.
The alternative, for Obama, is a series of debilitating revelations, prosecutions and arguments that could drip-drip-drip through the full length of his presidency.