The Irony of It All

By Jamelle Bouie

To second Matt Zeitlin’s post from earlier today, there really is quite a bit the Obama administration could do short of prosecution that would repudiate the Bush/Cheney torture policy and preserve justice and the rule of law. Not too long ago, Jonathan Bernstein — also blogging at Ezra Klein’s place — outlined his idea for a “truth and reconciliation” commission on torture. The short of it, is that instead of going for criminal prosecutions of torturers and policymakers, President Obama would issue a blanket pardon to everyone involved in the torture program, including the White House, while commissioning a bipartisan panel on torture. Here’s what Bernstein thinks the result might look like:

OK, what happens with pardon plus commission? Hard core supporters of torture, including Dick Cheney, will certainly continue to press their case. But there’s a real chance that they can be marginalized within their own party. Once his son is no longer in legal jeopardy, and assuming that his personal views are anti-torture (which I think is likely), then George Herbert Walker Bush might well be persuaded to speak out publicly and privately on the issue. Other Republicans respected by Washingtonians — Lugar, James Baker, Dole, former CIA, FBI, and other government leaders, perhaps McCain — might follow.

As I’ve said before, I think it’s realistic to hope that some of the Bush folks might join that chorus, perhaps even the former president himself. As Andrew Sullivan has done, Republicans could invoke Ronald Reagan (not to mention George Washington and other American heroes) in making their case against the acts that took place — as long as they do not also have to condemn the people who performed those acts. With them on board, and with the threat of prosecution no bar to testifying, a real Truth Commission could function. Such a commission (and all commissioners, Democrats, Republicans, and others) would take it as a given that the United States should abide by Geneva, and therefore could consider evidence of any possible gains from torture in the proper context.

I’m virtually certain that liberals would revolt at the prospect of a blanket pardon, and for good reason. In crafting and implementing their torture policy, Bush and Cheney ignored decades of precedent, centuries of custom, and systematically dismantled key parts of the Constitution. In a just world, prosecution would be a no-brainer. But we don’t live in a just world, and if prosecution were on the table, there’s a very good chance that Republicans across the spectrum would rally to protect their own. Ironically, the possibility of prosecution could further entrench GOP’s growing consensus over the efficacy of “enhanced interrogations,” virtually guaranteeing that a future Republican president would reinstate he program.

Prosecutions would be emotionally satisfying, but as Bernstein points out, the goal of a truth and reconciliation commission is to ensure that torture doesn’t happen again, and having Republican support is integral to rebuilding the American consensus against torture. Forgoing prosecution doesn’t sound great, but it might be the key to bringing Republicans back into the anti-torture fold.