Don't Fear Self-Examination on Torture

Washington Matters

Don't Fear Self-Examination on Torture

Part of the genius of democracy is that it is self-correcting. That's why we have elections and why "change" can be a potent campaign message. It's a messy process, though, that can often mean overreacting in one instance and then overcompensating.

An even messier part of that process is how we try to make necessary adjustments -- we argue, we create pressure groups, we learn and educate, we resist, we protest, we even listen sometimes. In other words we engage in all sorts of national self-examination. Looking at itself honestly and unblinkingly is part of the job of a democratic country. So it seems folly to even consider not conducting a fair and impartial investigation to look at this country's collective decision to use torture. And let's not kid ourselves ... we all knew it was going on and many of us thought it was a good idea, for a while.

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But advocates of an investigation are doing themselves no favor by overreacting themselves. Prosecution is unlikely and would only be constructive if clear cut and outrageous criminal conduct was found -- and a probe by a special prosecutor or other instrument that has legal guilt as a goal is not a way to start. In the same vein, calling investigations "truth commissions," as House Speaker Nancy Pelosi does at every opportunity, brings up blatantly unfair comparisons to the truth commissions that followed utterly catastrophic human rights abuses, genocide even, and were an attempt to heal horribly divided countries. The situations are not comparable.

Besides, the truth is pretty well known. Despite long-followed global treaties and our own sense of right and wrong, this country used torture to protect itself against another Sept. 11. It's so well-documented that we even know -- now, at any rate -- the number of times this or that suspected terrorist was waterboarded, not to mention that we are about to be treated to a grisly photo essay depicting what we did to whom and how we did it.

An investigation ultimately will not be about the "truth". It will be about how and why and the context in which we acted. It's worth remembering that many of this country's worst moments came out of fear and overreaction. The shipping of Japanese-Americans to inland concentration camps during World War II is one of the most glaring examples. The McCarthy era is another. In both instances the actions were justified and largely accepted in the name of national security -- defending the country from perceived threats from entities within who supposedly were working on behalf of enemy states and ideologies. On Sept. 11, such an enemy accomplished beyond its wildest dreams what it set out to do -- induce terror nationwide.

The country was terrified, and its leaders, all of them, were determined to prevent it from happening again. If ever there was fertile ground for a national overreaction, it was the rubble of the World Trade towers and a wall of the Pentagon. Democrats and Republicans alike said some curtailment of rights and liberties would be the cost of safety and security.

At the same time, those directly responsible for defending the country believed that the office of the presidency, the commander in chief, had virtually unfettered power to carry out that responsibility. In a country created on the very precept that unfettered power should always be suspect and whose system of self-governance was devised to keep power in check, exactly how much power resides in the executive branch is and always has been a murky and oft-contested concept.

And that's the territory of an investigation -- determining whether the Bush administration overreached and, if so, what checks were missing or circumvented and how can they be strengthened. It's the system that needs investigation, not individuals. Not at the start, at least. Even if it's widely believed that the administration went too far, the dispute is still one over policy and legal interpretation, not criminal conduct.

But even if behavior did not rise to criminal what the administration is accused of doing is plenty worrisome. The Justice Department memos that created the justification and rules for using coercive techniques have all the appearance of documents based on flimsy reasoning intended to make it possible to reach a particular end, not a sound legal analysis. The author of one of the key memos, Jay Bybee --now a federal appeals court judge --  has privately expressed misgivings about it, according to The Washington Post.

Washington seems particularly obsessed right now with the question of whether the torture techniques produced valuable information. Former Vice President Cheney insists that planned attacks were disrupted and is calling for the release of documents that he says would prove it. But just as the Bush administration appears to have all but concocted legal interpretations to allow the use of torture, it is now, through Cheney, taking the position that a positive result would also justify the use of torture. That's simply not the point. The administration correctly anticipated there would be deep concern about the use of torture and used the power of the executive branch to stifle dissent in an Orwellian manner: Redefine it so President Bush could proclaim to the world that this country does not torture -- even while it was.

It's one thing for a president to pursue dubious policies. It's quite another to do so by using the powers of the office to short circuit a variety of safeguards intended to keep a president from going too far. When that happens -- if it happens -- we have an obligation to understand how and to try to find ways to prevent it from happening again. Presidents are entitled to be wrong. However,  they aren't allowed to try to change reality so they can pretend they weren't.