According to early reports of George W. Bush's memoirs due out next week, when the CIA asked for Bush's approval for waterboarding Khalid Sheik Mohammed, Bush supposedly responded: "Damn right." I don't want to make light of this admission, but it sure sounds a lot like this exchange:
Bush's acknowledgment that he approved the waterboarding of prisoners, will undoubtedly re-open old wounds. It seems unlikely we will be able to debate this issue dispassionately, given the increase in partisanship evidenced by this week's midterm election results. Critics on the left will be quick to condemn the former president, to complain about the continued mistreatment of prisoners, and to express anger at President Obama and Attorney General Holder for failing to pursue criminal prosecutions of CIA interrogators, and possibly the former president and vice-president themselves. Critics on the right will wax nostalgic for the toughness of the last administration, and take the opportunity to decry the supposed softness of the current one (despite the fact that the Obama administration has a pretty strong record so far of taking out terrorists).
What I would remind critics on the left is that Bush was operating under the protection of opinions from the Office of Legal Counsel that waterboarding was not torture. Even though these opinions were later revoked by the Bush administration itself, they would probably cover the administration in any attempted prosecution under US law. Even if that were not the case, it would be nearly impossible to obtain a conviction of these officials in most US jurisdictions. If they could recite Jack Nicholson's speech with even half his swagger, most juries would probably start applauding. But I would also caution the critics on the right to remember that under international law, it is about as clear as it could be that waterboarding is in fact torture, and that the Bush administration's use of torture violates important treaty obligations of the United States. And it is far from clear that torturing Guantanamo detainees was either necessary or even helpful, and it has made some of those detainees impossible to prosecute. In addition, Bush and Cheney might have to be careful what countries they travel to in the future, because they could face real dangers of prosecution themselves. What has changed is that the government no longer tries to defend the practice of waterboarding or other methods of torture. Everyone should be thankful that this shameful episode in US history, in which we resorted to those methods, is over.