In its report on the Central Intelligence Agency’s torture program—created in the chaotic months after the Sept. 11 attacks—the Senate Intelligence Committee describes a culture of brutal depravity. Not only did the CIA use waterboarding and “stress positions” to coerce detainees and obtain (worthless) information; it beat and humiliated its prisoners, subjecting them to “rectal feedings and hydration”—a euphemism for rape—and gave free rein to officers with “histories of violence and records of abusive treatment of others.”
Still, this parade of horrors has its defenders. The Republican minority on the Senate Intelligence Committee also released a report, and unlike the majority report—which condemns the CIA for its actions—the GOP appraisal is a defense of the spy agency. “We have no doubt that the CIA’s detention program saved lives and played a vital role in weakening Al Qaeda while the program was in operation,” concluded the Republican senators. What’s more, they argued, “The rendition, detention, and interrogation program they created, of which enhanced interrogation was only a small part, enabled a stream of collection and intelligence validation that was unprecedented."
For the Republican members of the Senate Intelligence Committee—save Maine Sen. Susan Collins—the majority report was misleading and partisan, driven by “political motivations” and not an honest concern with the truth of the program. And indeed, with few exceptions, the reaction to the torture revelations splits down partisan lines. “Those who served us in aftermath of 9/11 deserve our thanks not one sided partisan Senate report that now places American lives in danger,” said Florida Sen. Marco Rubio on Twitter after the report was released.
The partisan split—Democrats in opposition to the program, Republicans in support—isn’t new. In 2007, as the presidential election began in earnest, then-Illinois Sen. Barack Obama campaigned against the CIA’s enhanced interrogation techniques. “The President is not above the law,” he said in a 2007 Boston Globe Q&A with reporter Charlie Savage, “and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. ” Likewise, in a 2007 primary debate, former Massachusetts Gov. Mitt Romney hunkered down on the issue. “Some people have said we ought to close Guantanamo. My view is we ought to double Guantanamo,” he said. And of course, a range of Bush administration officials still defend the program, from former Vice President Dick Cheney—arguably the strongest advocate for the program—to former White House lawyer John Yoo, who built the legal rationale for torture.
As long as torture is partisan—something for Democrats to oppose and Republicans to accept, if not promote—there’s no guarantee the next president won’t adopt it as policy, pushed by supporters who just see torture as another tool in the intelligence-gathering kit.
There’s no easy way to prevent that. But one start, as the ACLU’s Anthony Romero argues for the New York Times and as Jonathan Bernstein argues for Bloomberg View, is to rebuild norms against the use of torture. And the first step in that effort is for President Obama to pardon the people responsible for making torture the policy of the United States.
Yes, as a matter of morality, prosecutions would be better; the torture program was illegal and the officials who built it should be held accountable. The problem is that—in addition to civil servants and political appointees—this includes a former president and vice president. Prosecutions would immediately polarize the issue—making this a fight over Bush and Cheney, not torture—entrench the pro-torture position in Republican politics, and almost guarantee a return to the “dark side” for a future GOP administration that sees torture as just another partisan football.
Besides, if we’re trying to keep this from happening again, we don’t want punishment as much as we want to restore the consensus against torture. With explicit pardons, you can send the message that torture was illegal (and as Romero notes, signal to those “considering torture in the future that they could be prosecuted”) without taking legal action against the architects. And, as Bernstein argues, you can give generous pardons and lessen the officials’ “reputations as bad guys.”
Liberals are certain to see this as a betrayal. Not only did Obama continue key parts of Bush’s national security policy, but he pardoned Bush, Cheney, Rumsfeld, George Tenet, and everyone else responsible for torture. Unfortunately, however, this might a time when what’s right isn’t what we need. Pardoning the Bush team and defending their reputations isn’t as edifying as a prosecution, but it turns down the political temperature, and gives Republicans a chance to disavow the torture program without disavowing their president. And while some officials might reject the pardon—it’s likely Cheney would deny he committed a crime—the gesture would still count.
Moreover, if—as Bernstein suggests—we still need a “truth and reconciliation commission” to answer lingering questions and fully grasp the thinking behind the torture program, then we must pardon the officials in question—they won’t testify if they’re afraid of legal punishment.
Again, there’s no doubt that this is an imperfect solution. But if we want to prevent a second torture program—if we want to restore torture as a taboo—then we have to pardon the people responsible. It’s the only way to divorce the issue from its practitioners, take it out of the world of partisan politics, and put it back into the realm of public morality, where we can finally close the door on an ugly part of our history.