In May 2004, shortly after the Abu Ghraib scandal broke, President George W. Bush defended America’s image on the Arabic-language news channel Al Arabiya. “We’re a great country because we’re a free country,” he said, “and we do not tolerate these kind of abuses.” Asked what was being done to ensure that the abuses exposed at Abu Ghraib weren’t repeated, Bush said:

We want to make sure that if there is a systemic problem, in other words, if it’s a problem system-wide, that we stop the practices.... In our country, when an issue is brought to our attention on this magnitude, we act. And we act in a way where leaders are willing to discuss it with the media. And we act in a way where, you know, our Congress ask pointed questions to the leadership. In other words, people want to know the truth.

We now know the Abu Ghraib inquiry led to the punishment of low-level operatives, while the architects of the “systemic problem” were protected. An increasingly detailed paper trail confirms that the United States tortured prisoners in the “war on terror,” not in isolated instances, but as a matter of authorized policy and in violation of international treaty obligations. The story of how that came to pass implicates members of the Bush administration from the executive office down, as well as Democratic members of Congress who failed to “ask pointed questions to the leadership.”

President Barack Obama must now decide what to do about this. He has already promised not to prosecute CIA operatives who carried out “enhanced interrogation techniques” that they had been told were legal. And an internal ethics inquiry in the Justice Department recently concluded that the lawyers who authorized the techniques should not be prosecuted (though they could face professional discipline). If President Bush or someone else in the White House ordered the lawyers to concoct these justifications as cover for a predetermined course of action, that would invite prosecution. But such a trial would spend a great deal of President Obama’s political capital, and it could backfire if it did not result in convictions.

This is one reason it is imperative to authorize a full and public investigation, as Bush promised after Abu Ghraib. An independent “truth commission” could help repair the damage done to America’s image and integrity simply by exposing what laws were violated and who was responsible. It might turn up enough evidence of wrongdoing to make prosecution the obvious next step. Or it might conclude that the value of knowing the truth is great enough to justify granting immunity to those who authorized torture in exchange for their testimony. Either way, it would clarify for Americans and others the importance of traditional laws against torture—and of the law in general.

Clearly, President Bush and those around him felt that the nation was in imminent danger after 9/11, and thought extreme measures were necessary to prevent another attack. Former Vice President Dick Cheney has insisted that the use of “enhanced interrogation” methods was “crucial” to keeping Americans safe. But so far, scant evidence has been presented to the public to demonstrate why it was necessary to circumvent the laws against torture. There is reason to suspect that Bush administration officials first decided they wanted to employ interrogation methods proscribed by standing U.S. law in the “war on terror,” and then asked the Office of Legal Counsel to concoct an argument allowing them to do it. They operated under an exaggerated claim of executive power to keep their decisions secret and protect themselves from the consequences of those decisions.

In a recent news conference, President Obama disputed the notion that resorting to torture could serve the country’s interests: “Part of what makes us...a beacon to the world is that we are willing to hold true to our ideals, even when it’s hard, not just when it’s easy.” Laws and treaties lose their value if they can be evaded without consequences. But whether or not the guilty are prosecuted, the government could uphold the integrity of the law by releasing to the American people a direct account of its own failures. As President Bush told Al Arabiya, “In our country, when there’s an allegation of abuse—more than an allegation in this case, actual abuse, we saw the pictures—there will be a full investigation, and justice will be delivered.” We have seen the pictures, and the declassified documents, and the Red Cross and Senate reports on detainee abuse. Now we are bound to hold President Bush and those who served under him to his own standard.

May 12, 2009

Related: Margaret O'Brien Steinfels, Bad Orchard
Kristian Williams, Legitimizing Torture
Cathleen Kaveny, Perverted Logic
The Editors, Who Is Responsible?

From the blog: "Why we can't just move on"