One of the more interesting decisions that the Obama Administration will have to make has to do with examination of the activities of Bush Administration officials who were involved in the interrogation of suspected terrorists. Some groups and politicians who believe that American techniques crossed the line into torture are pushing for investigation and prosecution of the Bush Administration officials as criminals; other groups reject the allegation of torture, contend that Bush Administration approaches were legal and effective in thwarting attacks, and argue that any investigations or prosecutions will expose and thereby harm secret intelligence-gathering activities. It appears that the President has not really made up his mind on how to address this issue.
This issue was raised at a conference I attended this past weekend. One speaker, who addressed former Supreme Court Justice Robert Jackson and his role in the Nuremberg trials of Nazi war criminals, urged that American should follow the “Nuremberg model” and zealously investigate and prosecute those lawyers involved in authorizing Bush Administration interrogation techniques as legal activities. That argument seems like a gross overstatement to me. There are no allegations that, during the Bush Administration, the United States committed genocide, or engaged in gruesome medical experiments, or sought to systematically exterminate an entire ethnic group. Whatever waterboarding might be, it simply is not comparable to constructing concentration camps with gas chambers that permit mass murder of innocents. To make such comparisons, it seems to me, cheapens what happened during the Holocaust and ultimately minimizes the monstrosity of the Nazi regime.
I have no problem with congressional hearings into our intelligence-gathering activities during the “War on Terror,” so long as they are done sensibly, with fairness and with due consideration for legitimate national security concerns. (Such conditions, of course, may not be capable of being met in the current political environment.) On balance, however, I think it would be a mistake for the President to authorize prosecutions of Bush Administration officials unless the investigations turn up egregious, obviously illegal actions. Our system is characterized by a peaceful transition of power from one Administration to another, and engaging in “witch hunt” investigations and prosecutions of officials in a prior Administration will harm that process — and make us look like a banana republic at the same time. Prosecutions that seem to be politically motivated also will not serve the President’s stated goal of unifying the country and healing divisions. And, there is always the chance that such investigations could lead to stories that indicate that the interrogation tactics of the Bush Administration in fact were instrumental in thwarting terrorist attacks — stories like this one, and this one, too. As the old saying goes, this may be an instance where discretion is the better part of valor.