America's quick recovery from its torture program suggests it wasn't a torture program in the first place.

The law, lawyers, and the court.
April 17 2009 11:54 AM

Over It

America's quick recovery from its torture program suggests it wasn't a torture program in the first place.

(Continued from Page 1)

Obama's promise to "those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution" is sufficiently ambiguous to mean many things to many people. CBS News commentator Andrew Cohen reads it to mean the Obama administration will "not just pass on prosecuting any Bush-era offenders but offer those very same offenders indemnity from prosecution or even Congressional investigation." The ACLU's Jameel Jaffer, on the other hand, is calling for a special prosecutor. Sen. Patrick Leahy, D-Vt., reiterated his call for a nonpartisan commission of inquiry.

But Sen. Russ Feingold, D-Wis., doesn't think prosecutions are precluded by Thursday's announcement. As he put it last night: "As I understand it, [Obama's] decision does not mean that anyone who engaged in activities that the Department had not approved, those who gave improper legal advice or those who authorized the program could not be prosecuted." The DoJ's Office of Professional Responsibility is in the midst of an ongoing review of the quality of the legal advice given by Bybee, Bradbury, and fellow OLC lawyer John Yoo. But it's worth noting the irony here: We can't touch these lawyers because they weren't doing the actual face-slapping. In fact, just yesterday Spain's attorney general, Candido Conde Pumpido, recommended against prosecuting the six alleged architects of the Bush torture program because the officials cited in the court complaint did not themselves physically carry out the torture. "If action is taken for the crime of mistreating prisoners of war, the complaint should target the actual authors of the crime," he announced.

Having all-but granted immunity to those who actually carried out the torture because they believed they were merely following legal advice, and with the widespread understanding among experts that it's nearly impossible to criminally prosecute lawyers who were merely offering legal advice, the Catch-22 of nonaccountability is almost complete.

Advertisement

But is President Obama right that America has survived its injuries, having had a while to sleep it off? Can we simply put behind us the obscene picture of violence and cruelty painted by the new OLC memos and the 43-page report by the International Committee of the Red Cross publicized last month by Mark Danner? Was the decision to brutalize our prisoners some form of temporary insanity that is, as Obama's Director of National Intelligence Dennis C. Blair put it yesterday, justifiable if looked at within the "context of these past events" and the "horror of 9/11"? Are we OK about government lawyers and medical personnel and the highest-level government officials collaborating to legalize and implement water-boarding next time the "context" and the "horrors" lead us to lose our collective minds?

What we have learned from the new memos and the ICRC report dwarfs the hoodings and humiliations that took place at Abu Ghraib. Yet when we learned of the prisoner abuse there in 2004, it wasn't just vengeful, lefty, America-hating crackpots who were horrified. We all were. What happened in the intervening five years to make feeling sick to your stomach a partisan issue?

President Obama makes forgiving and forgetting sound awfully appealing. The country is in deep economic trouble. The days and weeks after 9/11 were really, really scary. We need our intelligence officials to be able to keep us safe without having to look over their shoulders. Good people shouldn't be punished for the bad legal advice they received. Bygones. But is the short-term comfort of saying we're over it worth the long-term cost of having become torturers and then cavalierly gotten over it? Because the real risk of getting over it is the possibility that it happens all over again.

TODAY IN SLATE

The World

The Budget Disaster that Sabotaged the WHO’s Response to Ebola

Are the Attacks in Canada a Sign of ISIS on the Rise in the West?

PowerPoint Is the Worst, and Now It’s the Latest Way to Hack Into Your Computer

Is It Offensive When Kids Use Bad Words for Good Causes?

Fascinating Maps Based on Reddit, Craigslist, and OkCupid Data

Culturebox

The Real Secret of Serial

What reporter Sarah Koenig actually believes.

Culturebox

The Actual World

“Mount Thoreau” and the naming of things in the wilderness.

In Praise of 13th Grade: Why a Fifth Year of High School Is a Great Idea

Can Democratic Sen. Mary Landrieu Pull Off One More Louisiana Miracle?

  News & Politics
Politics
Oct. 23 2014 3:55 PM Panda Sluggers Democrats are in trouble. Time to bash China.
  Business
Business Insider
Oct. 23 2014 2:36 PM Take a Rare Peek Inside the Massive Data Centers That Power Google
  Life
Atlas Obscura
Oct. 23 2014 1:34 PM Leave Me Be Beneath a Tree: Trunyan Cemetery in Bali
  Double X
The XX Factor
Oct. 23 2014 11:33 AM Watch Little Princesses Curse for the Feminist Cause
  Slate Plus
Working
Oct. 23 2014 11:28 AM Slate’s Working Podcast: Episode 2 Transcript Read what David Plotz asked Dr. Meri Kolbrener about her workday.
  Arts
Brow Beat
Oct. 23 2014 4:03 PM You’re Doing It Wrong: Puttanesca Sauce
  Technology
Technology
Oct. 23 2014 4:36 PM Vampire Porn Mindgeek is a cautionary tale of consolidating production and distribution in a single, monopolistic owner.
  Health & Science
Bad Astronomy
Oct. 23 2014 7:30 AM Our Solar System and Galaxy … Seen by an Astronaut
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.