A criminal investigation and prosecution of the torture conspirators is a necessity, not a choice. As Maj. Gen. Antonio M. Taguba, who investigated the Abu Ghraib scandal for the Pentagon, declared in June 2008: “There is no longer any doubt as to whether the current (Bush) administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
Unless government officials know that consequences follow from such abuses, they will break the law again. This is why President Obama is wrong when he argues that prosecution is looking backward; it is not. Prosecution is a means of preventing torture in the future. Even though he signed an executive order ending the use of torture, that order can be undone by the next president.
Some claim that to prosecute those who approved torture techniques would criminalize a policy difference. But torture is against the law. The claim that the administration officials who promoted the use of waterboarding and other measures were acting in the national interest does not absolve them; if it did, all torturers the world over would use the same justifications.
The Obama administration should carry out its legal obligations by directing the Department of Justice to appoint a special or independent counsel to investigate the actions of the Bush administration. Other politically sensitive cases have gone this route. Patrick Fitzgerald was appointed to investigate the outing of C.I.A. agent Valerie Plame, and Lawrence Walsh was appointed to investigate the Iran-contra scandal.
The Walsh investigation was only partially successful, in part, because a congressional investigation compromised the criminal prosecutions. That danger exists with creating a “truth commission,” which could result in giving immunity to key actors.
Appointment of the right special counsel could lessen the claim that the administration is engaging in partisan politics. The counsel should be a prosecutor that is beyond reproach — perhaps a respected Republican — who would be authorized to look into the actions of all who were involved authorizing the torture program.
We will continue to hear excuses as to why a criminal investigation should not occur. We should not be dissuaded. Only prosecutions can draw the clear, bright line that is necessary to insure that this will never happen again.