What If Torturers Go to Trial and Win?

Tyler Cowen says attempting to prosecute torture would be counterproductive:

At many blogs (Sullivan, Yglesias, DeLong, among others) you will find ongoing arguments for prosecuting the torturers who ran our government for a while. I am in agreement with the moral stance of these critics but I don’t agree with their practical conclusions. I believe that a full investigation would lead the U.S. public to, ultimately, side with torture, side with the torturers, and side against the prosecutors. That’s why we can’t proceed and Obama probably understands that. [...] Pushing for prosecution would more likely endanger rule of law than preserve it, which is a sorry state of affairs.

I don’t really consider myself an enthusiast for torture prosecutions. In part for reasons related to what Cowen says, I’m less interested in seeing the guilty punished than in seeing at least some of them and their political supporters admit that they were wrong and acting unwisely under the influence of the atmosphere of panic that prevailed in the aftermath of 9/11. How exactly you achieve that isn’t totally clear to me. But I think it’s plausible that some threat of prosecution, coupled with the ready availability of clemency for people prepared to come clean, plays a role.

I also think that, contra something else Cowen says, the fact that Democrats didn’t cover themselves in glory on this from 2002-2005 makes the case for action stronger. If it were the case that the torture system were just implemented by “a few bad apples” in the White House we could say, well they lost the election so now it’s time to move forward. But that’s not really the situation.