I have mixed feelings about the way in which the Obama administration has released the secret Justice Department memos from the Bush years which gave guidance to the CIA on permissible methods of interrogation, including torture. It is good that, in line with what he's been saying since the day of his inauguration, Barack Obama has made public this advice, and has reaffirmed in doing so his administration's renunciation of the 'false choice between our security and our ideals' and of the interrogation techniques in question.
At the same time, Obama's assurance to CIA operatives that they will not be held to account for anything they've done is problematic. The president said:
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.
The political reasons for this choice are not hard to fathom. Obama doesn't want to be seen in the role of a partisan victor, going for his vanquished opponents in a vengeful way; even more than that he probably doesn't want to embark on a process that could bitterly divide the country and so get in the way of the programme of economic recovery and political progress that are his priorities.
What is disconcerting, however, is that instead of putting these considerations up front, articulating them openly while acknowledging the competing - moral and legal - considerations that are being set to one side by him, Obama has spoken as if these other considerations did not exist. Many who support his choice have done the same. Here are Obama's own words on the matter:
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.
The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.
In one way this is clear enough: against the strong views and emotions and the dangers of disunity, there are the challenges of the present and the future; so we put this past behind us and move forward, take steps to ensure that the same does not happen again. And yet... Isn't it necessary to be clearer than he is that, in this 'nation of laws', certain laws that are of the most fundamental kind have been broken, that a decision is now being announced not to bring the culprits to justice, and that from the point of view of the rule of law this is a compromise, it is indeed a defeat for that very concept? Worse still, Obama cites in defence of his decision a reason that has been discredited legally - namely that 'those who carried out their duties rel[ied] in good faith upon [the] legal advice' that was given to them, a version, surely, of acting on higher authority. But there is no higher authority that can legitimize the practice of torture. This is a crime under international law, as is all but universally recognized, and everyone may be expected to know that it is, irrespective of how they have been advised. Apart from the legal constraint, all people, everywhere, have a moral duty not to torture.
As regrettable as Obama's fudging of this issue - his failure, that is, to state forthrightly what is being sacrificed to the political goal of avoiding disunity - are the large numbers of liberal commentators who simply endorse what he did, as if it were to them the most routine matter. Of all people, Philippe Sands:
Obama is right not to target the interrogators in the sense that real responsibility lies much higher up.
No, that is not how 'real' responsibility is distributed. Those who order torture are indeed responsible; and so are those who torture. You'd expect Sands to know this. There's more of the same from Michael Tomasky, who gives out both the 'real' blame and the superior authority justifications. And from Ken Gude. And from the LA Times. And from the Boston Globe. Not to prosecute torture flies in the face of both international law and ordinary morality. But here it's like water off a duck's back - as if the politics were everything and law and morality of no account.