Dahlia Lithwick made the case this week that if no one gets prosecuted for breaking a law, then it isn’t really a law — that is, if Dick Cheney and others faced no consequences for torture, then torture isn’t really illegal. Matt Yglesias asks a good follow-up question: Would it have been worse had the government attempted to prosecute, only to fail to get guilty verdicts? This points to the complexity of the issue from the perspective of the incoming Obama administration in 2009.

Assuming one wants to prevent torture from returning, would prosecution have been the best step? Perhaps. Perhaps, however, it would have made things worse. Even successful prosecution, unfortunately, could create a backlash.

The administration was faced with no obvious best choice. The priority, at least in my view, should have been to do whatever was most likely to prevent torture proponents from winning in the future. My own sense was that the best way to do that wasn’t to prosecute. Instead, I advocated preemptive pardons to everyone involved, including George W. Bush, followed by a thorough Truth Commission. I thought there was at least a fair chance with that approach of enlisting Bush and some of the others in a real bipartisan consensus against future torture.

Would it have worked? I can’t prove it, but my judgment, was that prosecutions would have hardened GOP support for torture, while pardons would have at least removed the self-interest of those who were – are – criminally liable from the equation.

What I think clearly was the wrong choice, however, was to just ignore the problem – that is, the problem of torture returning – and hope it would go away.  And that, so far, is what Barack Obama has chosen.

I still suspect he made the wrong choice even when it comes to his political self-interest, but I’m alas confident that he made the wrong choice when it comes to advancing a policy which he says he’s for and which those who voted for him support.

I’m even more pessimistic about this than Lithwick, who writes: “[W]e are not all Cheneyites in a more fundamental sense: Most of agree that we should not be a nation of torturers, and that torture has tarnished the reputation of the United States as a beacon of justice. Most of us do not want warrantless surveillance, secret prisons, or war against every dictator who looks at us funny. We may be bloodthirsty, but we aren’t morons. On his most combative and truly lawless positions, Cheney still stands largely alone.”

I hope she’s right, but I doubt it. I think we’re likely to see torture and much of the rest of it as unspoken, and perhaps even explicit, Republican party positions going forward. If that’s the case, then people who listen to Rush and watch Fox News are going to share those views. Barack Obama is obviously not the most to blame for that; the bulk of the blame should go first to Dick Cheney and his apologists, and secondarily to Republicans who know torture is wrong and yet don’t speak up. But I do hold Obama to blame for not making more of an effort than he has to date.