The question is not as the extremes on either side would have it. Today, eight years after the attacks of September 11 and three months into a new presidential administration, should the country in some way look back to review the tactics that shaped the war on terror under President George W. Bush?
The right loathes the idea; the left loves it. The release of Bush administration memos laying out the legal justification for what are known as enhanced interrogation tactics—or, in the popular vocabulary, as torture—is among the factors driving a new conversation about the wisdom of investigations. Conservatives tend to believe that this would amount to a criminalization of policy differences, possibly leading to the prosecution of officials who believed they were doing the right (and authorized) thing. Liberals are longing to take the Bush regime to account, and fantasize about Dick Cheney in the dock.
For now, President Obama has, predictably, taken a middle course. He has banned the controversial tactics at issue, released the memos and believes that further inquiry is more likely to fuel partisan fury than it is to shed light on what must be done going forward. "We live in a dangerous world, and the president thinks that if we are consumed with relitigating the past, then it will be all the harder to focus on the challenges we are still facing," White House senior adviser David Axelrod told me last week. "We've ended these policies, these interrogation tactics, and we made the memos available … The issue is, do we want to turn back a page, or look forward?"
The answer depends, at least in part, on how we turn back the page. Is a Watergate- or Iran-contra-style congressional probe the way to go? No, for public hearings encourage—demand, really—dramatic plays for attention from lawmakers. Such a stage would lead to the expression of extreme views.
So we do not want that. Nor, I think, do we want to open criminal investigations into those who participated in brutal interrogation methods. And to pursue criminal charges against officials at the highest levels—including the former president and the former vice president—would set a terrible precedent. (The presidential historian Michael Beschloss suggests that the closest parallel to a president authorizing a probe of his predecessor can be found in the 1920s, when Calvin Coolidge appointed special prosecutors to investigate Warren Harding's role in the Teapot Dome scandal.) That is not to say presidents and vice presidents are always above the law; there could be instances in which such a prosecution is appropriate, but based on what we know, this is not such a case.
The idea that our only options are to move on completely or to prosecute is a classic false choice. A third way would be a 9/11-style bipartisan commission that would include clear supporters of the Bush administration. Such a panel would meet largely in private, have the power to grant immunity to witnesses and be charged with answering, as clearly as possible, the central question of whether Bush's war on terror in its entirety saved lives. Michael Isikoff touches on these matters in this week's issue, writing about FBI agent Ali Soufan, who got intel from key terror suspects—without using torture.
Still, it seems likely that the interrogations, among other things, including surveillance, helped us prevent further terrorist attacks. We may never know for sure—you cannot prove a negative—but the public interest would be served by knowing more rather than less about how the war on terror has unfolded. (With, to be sure, the appropriate caveats about not revealing ongoing sources and methods.)
We heard many similar arguments against the 9/11 Commission that we are now hearing about what we might call a 9/12 panel, but the 9/11 report was riveting and revealing, and we are better off for it. Why preemptively foreclose the possibility that a follow-up project would lead us even further forward?