Torturers and Lawyers

Posted April 26, 2009, at 5:47 p.m.

With the recent disclosure of secret Justice Department memos, there can remain no doubt that government interrogators tortured prisoners grossly and repeatedly in violation of our laws and Constitution and treaty commitments. But publishing the memos is only the beginning of dealing with a national moral and legal crisis that has damaged our reputation in the rest of the world and sullied many Americans’ pride in their own country.

The biggest need is to purge ourselves of a dreadful departure from moral and legal values and to prevent it from ever happening again. For starters, that means a complete disclosure of this misbehavior, a process now well underway.

President Obama was right in ordering the declassification and release of the memos. And he was probably right in distinguishing between the perpetrators and the lawyers who wrote the memos that justified the torture, shielding the former from prosecution but leaving the latter open to investiga-tion.

But how far up should it go? If the torturers are handed the rejected Nuremburg defense of “I was just following orders” in prosecution of World War II war criminals, then why not apply it to the lawyers, too. And if the lawyers are let off, then who gave them the orders? Wasn’t it Attorney General Alberto Gonzales and his superior, President George W. Bush, as well as Vice President Dick Cheney and his special national security staff?

Aside from torture, some of the same lawyers were part of a network in the Bush administration that tried to impose a new independent nationalism in foreign affairs to nullify the requirements of international conventions. Domestically, they pressed a “unitary executive” theory holding that the ex-ecutive branch was, in effect, first among equals and that neither Congress nor the Supreme Court could restrict presidential action as commander in chief of the armed forces.

An April 22 article in The Wall Street Journal reported that Mr. Gonzales described the group as a “war council,” including Timothy Flanigan, deputy White House counsel in Mr. Bush’s first term; William Haynes II, Defense Department general counsel; David Addington, Mr. Cheney’s long-time aide, and John Yoo, then a deputy attorney general, now returned to a professorship at the University of California in Berkeley.

Either a bipartisan congressional investigation or a nonpartisan special commission, or possibly a “truth commission” such as many other nations have created to expose illegal episodes, should undertake a full inquiry into the use of torture — and the disputed question of whether it works — as well as the scheme to transform the American system of government.

Actual prosecution and punishment are another matter, which should be carefully considered. A series of trials of top Bush administration officials could embroil the country in partisan fury that would jeopardize economic recovery efforts and any progress in such essential fields as health reform.

Complete public exposure, possibly ending with amnesty, might well be enough to exorcise the evils once and for all.

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