OT I never do this ...

but today I will.

Here is the full text of tomorrow's editorial in the _Washington Post_.

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The Accountability Question
The right way to deal with torture's legacy

Friday, April 24, 2009

THE APPARENT confusion within the Obama administration about whether to
prosecute officials of the previous administration for committing
torture is not surprising. Two fundamental principles are colliding in
this matter, and it's not easy to achieve a fair outcome that reconciles
both.

On one side, you have the sacred American tradition of peacefully
transferring power from one party to another every four or eight years
without cycles of revenge and criminal investigation. It's one thing to
investigate Richard Nixon for authorizing wiretaps and burglaries in
secrecy, outside the normal channels of government, for personal
political gain. It's another to criminalize decisions authorized through
all the proper channels, with congressional approval or at least
awareness, for what everyone agrees to be the high purpose of keeping
Americans safe from terrorist attack. Once you start down that road,
where do you stop? Should Bill Clinton, Sandy Berger and their team have
been held criminally or civilly liable for dereliction of duty 3,000
people died in the Sept. 11, 2001, attacks, given that they knowingly
allowed Osama bin Laden to flee Sudan for sanctuary in Afghanistan? What
if the next administration believes that Barack Obama is committing war
crimes every time he allows the Air Force to fling missiles into
Pakistan, killing innocent civilians in a country with which we are not
at war?

Such concerns are heightened when the country is at war, as we in fact
are, though in the daily life of most Americans it might not seem so.
Al-Qaeda terrorists still plot to inflict great damage, perhaps on a
scale far larger than in 2001, and the country needs its guardians in
the armed forces, the CIA and elsewhere to focus on defending the
country against that threat, not themselves against legal action. The
Obama administration needs to attract the best possible talent into
government, and then expect from those who serve unflinching advice on
hard calls. Neither will happen if public service routinely is followed
by the need to hire private attorneys and empty one's bank account.

AND YET, on the other side, we have this: American officials condoned
and conducted torture. Waterboarding, to take the starkest case, has
been recognized in international and U.S. law for decades as beyond the
pale, and it was used hundreds of times during the Bush years. Eric H.
Holder Jr., the attorney general of the United States, has stated flatly
that it is illegal. In a country founded on the rule of law, a president
can't sweep criminality away for political reasons, even the most noble.
When the United States sees torture taking place in other parts of the
world, it issues some pretty simple demands: Stop doing that, and punish
-- or at least identify, and in some way hold accountable -- those
responsible, so that the practice will not be repeated. How can a
country that purports to serve as a moral exemplar ask any less of itself?

The answer does not lie with those congressional Democrats who are eager
to put the entire Bush administration on trial. Nor, as President Obama
has discovered this week, can it be found in his own wishful calls to
look forward rather than dwelling on the past. As other nations have
discovered, the past will haunt the present until it is investigated and
openly dealt with. And although we have misgivings about international
justice intruding on the sovereignty of democratic governments, it's
also true that if the United States doesn't examine its own record,
other nations will have a better claim to do so.

To an extent, such an examination is going on all around us. The Senate
intelligence committee is conducting a review. The Senate Armed Services
Committee, having been mostly AWOL when it could have made a difference,
has issued a useful report. The Justice Department's Office of
Professional Responsibility is examing the conduct of Bush
administration lawyers. It may seem, after a week of constant news
coverage and newly published legal memos, that there isn't much left to
learn.

But wide holes remain in public knowledge of how torture came to be
official U.S. policy and how that policy was implemented. The efficacy
of "enhanced interrogation techniques" remains in dispute. We don't know
if some interrogations went beyond even what the Justice Department had
approved. The extent of congressional knowledge and approbation remains
unclear. And as former defense secretary Donald H. Rumsfeld might note,
we don't know what we don't know.

SO THERE remains, as we have long argued, a need for a bipartisan
commission composed of respected leaders to conduct a thorough review.
Mr. Obama should take the lead in forming such a panel. It should
conduct its work deliberately and issue its findings publicly.

In the end, no such panel can answer every question. We will never know
what detainees might have disclosed if interrogators had persisted with
more humane techniques. We can't measure precisely the damage inflicted
on the United States and its soldiers by the fallout from Abu Ghraib and
Guantanamo. But a presidential commission could produce the fullest,
least-heated account possible.

Once it did so, prosecutions would not be the only option. Based on what
we know today, we do not believe they would be the best option. For
reasons laid out at the beginning of this editorial, we would be
extremely reluctant to go after lawyers and officials acting in what
they believed to be the nation's best interest at a time of grave
danger. If laws were broken, Congress or the president can opt for
amnesty. In gray areas, the government can exercise prosecutorial
discretion. But the work of the commission should not be prejudged. And
the prudence of not prosecuting, if that proves the wisest course, would
earn more respect, here and abroad, if it followed a process of thorough
review and calm deliberation.

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I don't necessarily agree that a bipartisan commission need be created.
I think the same principles of amnesty and prosecutorial discretion can
be exercised after congressional investigations but I do agree with the
editorial board of the _Washington Post_ on the nature of the problem
in dealing with the legacy of torture.

--
Ken Fortenberry