Nobody seems entirely satisfied with the Obama administration's policy on past acts of torture committed by the CIA. The right attacks President Obama for making the torture memos public. The left attacks him for forswearing the prosecution of people who committed torture. In this case, not only are both sides ignoring the political realities that compel Obama's sensible policy, they are also both ignoring legal realities.
The urge to prosecute is of course understandable. The Bush administration's decision to use torture on terrorism suspects may be its most shameful act. It tarnished this country's ideals, and it puts Americans in danger. But people who want to punish the offenders are forgetting some important facts. Torture was approved at the very highest levels of the Bush administration, and those officials were careful to obtain legal cover for all of the interrogation techniques that were practiced by the CIA. That was the whole point of the torture memos, which constituted official opinions by the Office of Legal Counsel that basically re-defined torture, and specifically upheld the legality of the techniques that the CIA employed. These very memos make it almost impossible to prosecute anyone who relied on them, at least under US law. Some interrogators could potentially face legal consequences under international law, but it seems unlikely that they could be successfully prosecuted in the United States unless they went beyond what the Office of Legal Counsel authorized. It also seems unlikely that the lawyers who authored the memos could be prosecuted. Reprehensible as these opinions may be, they probably only constitute bad legal advice, which is generally not a crime. I'm not saying that the authors of these memos should face no consequences, but criminal prosecution seems unlikely to succeed. Therefore, President Obama was giving up almost nothing by saying that individuals who relied on these opinions will not be prosecuted. As much as people may disapprove of torture, they should try to recognize the limits of the government's ability to criminalize the conduct at issue in this case, conduct that was approved at the very top, widely supported by the public, overlooked by Congress, and given official legal sanction by the Justice Department.
Critics from the right are demonstrating an unsupportable keejerk reaction as well. The Obama administration had no choice but to renounce torture. Remember that even the Bush administration claimed that it did not engage in torture. No country can admit to engaging in torture without destroying the foundations of international law. The Bush administration had also already repudiated the torture memos before the Obama administration even took office, recognizing that they could not be supported as a matter of constitutional interpretation, statutory interpretation, or interpretation of international law. So the only issue on which the Obama administration can be questioned from the right is its decision to make the memos public. The substance of these memos was already widely known however, and the release of the text of the memos did nothing more than reveal details of information that was already public. Conservative critics ought to recognize, even if they don't agree with it, the political necessity of making a public statement of a new direction. That seems to be the least the Obama administration could have done. Bush supporters ought to be grateful that the new administration is putting the emphasis on moving forward over an undue preoccupation with the past, and that President Obama took the trouble to visit Langley to stand publicly with CIA employees and bolster their morale.
Shouldn't critics from both the left and right make some effort to appreciate the constraints that their counterparts place on the administration? Shouldn't people educate themselves about legal realities before they second guess legal decisions? And instead of carping about every decision that does not go as far as critics on both sides want, should we not admire the finesse of the administration's skillful navigation of these difficult waters?