In the upcoming issue of The New Yorker, Philip Gourevitch notes that the only Americans ever prosecuted and sentenced for Bush-era detainee policies are ten low-ranking military personnel involved in the Abu Ghraib abuses. These people, Gourevitch argues, are scapegoats, painted by the American government as rogue individuals whose behavior was caused more by a lack of supervision than by American military policy.

And this, in Gourevitch's opinion, does the issue of Bush-era detainee policy a disservice. "There can be no restoration of the national honor if we continue to scapegoat those who took the fall for an Administration--and for us all," he writes.


Gourevitch doesn't pretend to have any solid answers, admitting that a prosecution of the entire chain of command might be impossible--and that a full public accounting of the past might be more valuable than a few sensational trials. But he does point out that superiors approved of the behavior at Abu Ghraib.

Who to prosecute is a messy question--so messy, in fact, that some (President Obama included, perhaps) would like to avoid it entirely. When ABC's Jake Tapper asked Obama last week whether the Bush administration tortured, it was the beginning of a logical progression at the heart of the issue: if waterboarding is torture, then there was torture, meaning there was a crime, meaning someone should be punished.

To a large extent, the question is about precedents: if the last administration did indeed commit crimes, trails would prove that crimes don't go unpunished, and--if it is determined there was a crime--future administrations wouldn't be able to look back at this moment, considering a future crime, and think: we will get away with it. Then again, conducting a partisan witch hunt as soon as an administration leaves--simply because we didn't like its policies--is quite a bad precedent to set, and that's most likely what Obama wants to avoid.

For now, opponents of waterboarding and the gross abuses of Abu Ghraib are stuck in Gourevitch's mode of critique--which is perhaps the most useful to the nation right now: pointing to the injustices and the obviously loose ends, and hoping they are obvious enough that someone in the new American Democratic regime intervenes.

Right now, responsibility has been diffused over the entire military/intelligence chain of command in the Bush administration--from the president and vice president to top Department of Justice lawyers to CIA officers and the lowly servicemembers at Abu Ghraib. It's a physics problem: with the force of accountability distributed over too wide an area, it has no pressure, and has failed to move the whole chain of command.

There's also a sense among some that warterboarding isn't the worst kind of torture, and that things were crazy after 9/11. (This came up in Bill Maher's recent interview with Kenneth Baer Bob Baer.) Even if it was criminal, putting President Bush, Vice President Cheney, or Defense Secretary Rumsfeld in jail might not be completely reasonable, some would probably say, given the circumstances.

Unfortunately for the Abu Ghraib soldiers, it has flowed downhill. That's what Gourevitch has a problem with: pretending like the rest of the chain wasn't responsible. Many opponents of Bush-era detainee treatment detest the lack of accountability, and the only people ever to be punished could actually come to serve as its symbol.

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