Torture memos, revisited

Obama's efforts to draw a line under the torture scandal--if that is what they were--have had the opposite effect. After promising that CIA interrogators would not be prosecuted, and after seeming to deflect calls for a commission to investigate what went on, the president now says that the attorney general must decide whether the officials who designed the policy should face trial. Also, though not actually calling for an investigative commission, he said that if one were somehow to appear, something along the lines of the 9/11 commission would be the right way to go.

It is not an outright U-turn--not by Obama, anyway. Commentators were possibly jumping to conclusions, helped by Rahm Emanuel, when they took the earlier statements to mean no prosecutions of anyone. Obama never actually said that, though what he said did seem to imply it.

Today I felt sorry for poor Robert Gibbs, whose job it was to explain that nothing had really changed. It was an impossible job and he made a hash of it.

During the grilling, NBC's Chuck Todd raised the question I would have asked. If the attorney general needs to review whether policymakers broke the law, on the principle that everybody must be accountable, why promise no prosecutions of interrogators? Are CIA officers above the law? There is a distinction in what you might call ordinary justice, or plain common sense, between the architects and the subordinates, but I don't know that the distinction in law is anything like so clear. "I was just obeying orders" is not regarded as a watertight defense.

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Gibbs tied himself in knots, starting to say (I think) that if you break the speed limit inadvertently, because you have been told that you are within it by somebody who ought to know, you have not broken the law--which is untrue, of course. Sensing where that was going, he veered away, leaving the analogy like a cartoon character running frantically in mid-air.

Somebody else then asked, will the attorney general be looking at whether Bush and Cheney broke the law as well? Another good question. Gibbs had no answer.

I thought Obama's original position--or what most people took to be his original position--was a reasonable outcome, all things considered. Ratify, as it were, the abandonment of brutal interrogations, and make it clear they will not be used again. Announce, in effect, that the country has learned its lesson. But do not seek to criminalize the designers or the interrogators for doing their best under extremely difficult circumstances. It appears this compromise cannot hold. And the reason it cannot hold is that Obama, having proposed it, either cannot or will not defend it.

Question. What happens if the people who framed the policy are prosecuted and acquitted?