TORTURE! Part 2: What Should Be Done

So it's clear that the torture authorized by the OLC memos was immoral, illegal, and ineffective. But what should be done about it?

There should be at least an investigation into how this happened. There should be some consequences for the officials responsible for okaying torture. (I would be fine with not punishing the interrogators because their actions were based on what they thought was--and should have been--sound legal advice.) Disagree? Please allow me to refute your counterarguments.

Investigating and prosecuting torture would be looking backwards; we should be "focused on looking forward." Yes, President Obama has a lot he wants to do to improve our future: stabilizing Afghanistan and the economy, reforming health care, energy and education, and investigating and prosecuting torture. To fail to do so would establish a dangerous precedent, sending the message that the President and upper executive officials can flaunt the law and get away with it.

We should not prosecute a previous administration "for policy disagreements." That is what "banana republics" do. Agreed, we should not prosecute for mere policy disagreements. Anybody who says, "No Child Left Behind was a terrible idea. Off with Bush's head!" is as insane as the Queen of Hearts. But that is not what we're saying. We do not wish to establish a law ex post facto that makes what the Bush administration did illegal. What the Bush administration did was already illegal and should consequently be punished.

Democrats in Congress would be prosecuted too. Good. I don't care. This is not a partisan issue. Anyone who advanced the case for torture or consented to it should be investigated and prosecuted in accordance with the law.

Accountability advocates have "an unworthy desire for vengeance." Maybe I do. Maybe it's even true of the 62% of Americans, every last one of them, who favor some sort of investigation. But motives are irrelevant here. The significant question is not "What are their motivations?" but "What's right?" And what's right is upholding the law.

Prosecuting is "too divisive." I'll let Hilzoy of Obsidian Wings answer this:

I think that upholding the rule of law is more important than avoiding divisiveness, and besides, since any prosecution of high administration officials is always divisive, this principle would seem to me to imply that no high official should ever be punished for breaking any law. I think this would be disastrous.

Moreover, not to prosecute would be illegal. The U.S. is required by "the UN Convention Against Torture to prosecute those who engage in it."

So I think I've established that at least some sort of investigation is necessary. The only question is what sort.

The right special prosecutor (Patrick Fitzgerald?) would be considered non-partisan and would "ensure genuine accountability," (h/t) but might not be able to expose the whole truth. (h/t) A Congressional investigation, such as the one currently being undertaken by the Senate Intelligence Committee under Dianne Feinstein, might work, but would probably be seen as too political by the right and too deferential to secrecy by the left. A bipartisan commission (like the 9/11 one) would practically guarantee "that there [would be] no major political repercussions."

For me, then, the best option would be the two-course meal: a bipartisan commission followed by a special prosecutor. Establishing the truth without the taint of bias is paramount. It would then be up to us to take the commission's findings and apply the political pressure needed to get a special prosecutor appointed.

But I sincerely doubt that this will come to pass. Simpler consequences, however, are more easily achieved. Jay Bybee now sits on the Ninth District Court and can be impeached. Bybee, Yoo and Bradbury could be disbarred. Their actions demonstrate either gross incompetence at best or a nearly complete disregard for the law and established legal precedent at worst. Either way, they are unfit to keep practicing law.