Tortured Logic

Barack Obama yesterday made public the Bush Administration's infamous "torture memos," the documents that provided the legal foundation for interrogation techniques such as waterboarding against suspected terrorist detainees. I'll admit that I haven't gone through the memos themselves line by line, but much of what they contain has apparently already been public for some time. And a decent Cliff's Notes version was posted online by the New York Times.

Reaction to the release of this material has been charged on both sides of the debate. Former CIA director Michael Hayden and former Attorney General Michael Mukasey claimed in a Wall Street Journal op-ed that publicizing such information would hamstring U.S. intelligence officers and aid terrorists. Meanwhile, Slate's Dahlia Lithwick took issue with Obama's declaration that the lawyers who authored the memos would not be prosecuted for what can quite compellingly be argued were crimes under international law. 

Initially, I was firmly in Lithwick's camp. If the U.S. is to be considered any kind of model of a society governed by the rule of law, those who break it - however high up in the government food chain and however much they might bleat a Nuremberg-style defence - should be held accountable. Thus, I found Obama's statement that "This is a time for reflection, not retribution" infuriating.

Upon reflection, though, I have to soften my criticism of Obama. This is a world where, unfortunately, there is a gulf between what should happen and what can happen, and there is simply no way that Obama could call for the heads of the Bush lawyers without it looking like political opportunism.  And with so many other issues to confront, he can't afford to expend the political capital to do so. 

In light of this, the public release of the documents was arguably the best available punishment Obama could mete out. While there will always be those who defend America's right to crash through any legal barrier in the name of national security, allowing the arguments in favour of torture to be seen in their near-entirety should result in some additional public shame for the lawyers themselves. Public shame isn't a jail sentence - or a waterboarding session - but it's got to hurt a little. And besides, if Congress wants to exact additional penalties, it does have a few options.

The guilty parties certainly don't deserve to skate on the torture memos, and simply releasing them to the public feels like - is - an incomplete and unsatisfying measure. Nevertheless, it's probably the only one we're going to see.