The Truth About Torture

But Congress has defined torture very narrowly. The OLC has advised officials since 2002 that some highly coercive methods—including waterboarding, which is assailed by most of the world as torture—do not violate the federal anti-torture law. Until mid-2006, the OLC also advised that interrogators could ignore the 1949 Geneva Conventions' far more sweeping ban on all "cruel" and "humiliating and degrading" treatment of prisoners. The lawyers found, and Bush declared, that Geneva did not protect stateless terrorists, such as members of Al Qaeda.

Then five Supreme Court justices gave the administration a nasty surprise. Rejecting the views of a federal appeals court, President Bush, the OLC and four other Supreme Court justices, the majority held that Geneva does protect Qaeda members and other Guantánamo detainees. This brought into play the federal War Crimes Act, under which Geneva violations can be prosecuted as federal crimes.

But any such prosecutions would probably fail. Congress has retroactively amended the War Crimes Act to block any prosecutions for brutal interrogation methods short of torture. And officials could raise a nearly airtight defense of good-faith reliance on advice of counsel—OLC memos on approved methods would be like "get out of jail free" cards.

Of course, if he carries out pardons, Bush will be attacked for cronyism and accused of a cover-up. But one of the main beneficiaries would be the next president. Absent pardons, pressure to go after GOP "war criminals" would make it very hard to unite Americans of all stripes behind solutions to the many economic and social challenges facing the country. No new president—especially if he turns out to be Barack Obama, who has made such a point of getting beyond partisan bickering—needs that.

© 2008