Yikes! We can't criminalize "policy differences." This was Attorney General Eric Holder's line at his confirmation hearings last month, when asked if he would take action against Bush administration officials who authorized waterboarding or warrantless surveillance. But as Sen. Sheldon Whitehouse has pointed out, that very formulation is offensive. What Whitehouse has called the "pervasive, deliberate, and systematic damage the Bush administration did to America" cannot really be brushed aside as a mere difference in policy. One can choose between two legal options and call it a policy dispute. When one's policy is to break the law, that's what we call a crime.
People just doin' their jobs.Former Bush administration officials do themselves no good when they simultaneously argue that their actions were lawful and necessary—and saved our lives many times over—and that they should also be excused because they were terrified. Stephen Bradbury, then acting head of OLC tells us that the appalling work in the newly declassified memos should be filtered through the prism of temporary insanity: "It is important to understand the context of the  Memorandum," Bradbury wrote, in a memo to the file. "It was the product of an extraordinary—indeed, we hope, a unique—period in the history of the Nation: the immediate aftermath of the attacks of 9/11."
Obama made the same leap when he said "part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering up." But of course nobody is saying that everyone at the CIA needs a lawyer, or will be prosecuted for mistakes made in the field. This isn't about going after people who were just doing their jobs under tough conditions. It's about understanding how just doing their jobs came to include torture.
The fundamental mistake underpinning all the thinking above is that openness about past errors leads inexorably to ugliness, politicization, and rancor. But it's worth recalling for a moment that we are already knee-deep in ugliness, politicization, and rancor. Transparency is not necessarily the first step toward indiscriminate prosecutions of everyone who ever worked for President Bush. It doesn't mean that from now until forever, each administration will criminalize the policy differences of the administration before. It doesn't mean that all mistakes are war crimes, or that hereinafter all investigations are all "perjury traps." That's the kind of binary, good/evil thinking we were supposed to have left behind us last November.
If President Obama has some better rationale for hiding the markers along the road to torture or eavesdropping from the American people, it's time we heard it. But keeping this information from us for our own good is not an acceptable argument. The most recent OLC memos demonstrate precisely why the last eight years were so extraordinary. The suggestion that we just need to get over it is starting to sound extraordinary, too.
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