Stuart Taylor on Bush and Torture

Dark deeds have been conducted in the name of the United States government in recent years: the gruesome, late-night circus at Abu Ghraib, the beating to death of captives in Afghanistan, and the officially sanctioned waterboarding and brutalization of high-value Qaeda prisoners. Now demands are growing for senior administration officials to be held accountable and punished. Congressional liberals, human-rights groups and other activists are urging a criminal investigation into high-level "war crimes," including the Bush administration's approval of interrogation methods considered by many to be torture.

It's a bad idea. In fact, President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers. (It would be unseemly for Bush to pardon Vice President Dick Cheney or himself, but the next president wouldn't allow them to be prosecuted anyway—galling as that may be to critics.) The reason for pardons is simple: what this country needs most is a full and true accounting of what took place. The incoming president should convene a truth commission, with subpoena power, to explore every possible misdeed and derive lessons from it. But this should not be a criminal investigation, which would only force officials to hire lawyers and batten down the hatches.

Pardons would further a truth commission's most important goals: to uncover all important facts, identify innocent victims to be compensated, foster a serious conversation about what U.S. interrogation rules should be, recommend legal reforms, pave the way for appropriate apologies and restore America's good name. The goals should not include wrecking the lives of men and women who made grievous mistakes while doing dirty work—work they had been advised by administration lawyers was legal, and which they believed was necessary to prevent terrorist mass murder.

A criminal investigation would only hinder efforts to determine the truth, and preclude any apologies. It would spur those who know the most to take the Fifth. Any prosecutions would also touch off years of partisan warfare. The lesson for occupants of the toughest government jobs—if the next administration could find people willing to fill them—would be that saving innocent lives is less important than covering their posteriors. Any hope of a civil conversation about lessons we need to learn would be dead.

Pardons would not be favors to criminals. One can argue that officials could have or should have resigned rather than implement questionable legal judgments, but there is no evidence that any high-level official acted with criminal intent. The officials involved appear to have approved only interrogation methods found legal by administration lawyers, and in particular by the Justice Department's Office of Legal Counsel (OLC). According to long tradition, the OLC is considered a sort of Supreme Court of the executive branch.

Those who have called for criminal investigations will not be easily persuaded otherwise. They include nearly 60 House Democrats and retired Maj. Gen. Anthony Taguba, who headed the Army's investigation into the Abu Ghraib torture scandal. Retired Col. Lawrence Wilkerson, who was chief of staff to the then Secretary of State Colin Powell, has suggested that administration lawyers could be prosecuted in a foreign court (even though his old boss could find himself vulnerable as well). Former White House press secretary Scott McClellan told ABC News that he now thinks the administration has engaged in 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.