Even as President Obama acted in the name of transparency and accountabilty in releasing the Bush administration's OLC's torture memos, he made assurances that the CIA agents who used the "enhanced interrogation techniques" meticulously detailed within would not be subject to criminal prosecution. Glenn Greenwald at Salon, Jeremy Scahill on his blog, David Bromwich at Huffington Post and Ta-Nehisi Coates at the Atlantic all have good takes on why Obama's decision is wrong. I concur. However politically expedient, Obama's nearly carte blanche absolution of torture was morally wrong, and his justification of it, from a professor of constitutional law, is intellectually dishonest.
Obama's rationalizations were artfully made to the point of being obfuscatory, but they can be boiled down to three points:
1) The strategic issue of national security. "The men and women of our intelligence community serve courageously on the front lines of a dangerous world...We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs."
2) The legal-ethical issue of obedience. The CIA agents were only carrying out "their duties relying in good faith upon legal advice from the Department of Justice."
3) The political issue of national unity and progress. "This is a time for reflection, not retribution...at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
The easiest to dismiss of these is the issue of national security. As Bromwich points out, the matter of protecting individual CIA agent's identities is "a calculated distortion." Any agent publicly named and prosecuted for torture would, of course, be removed from duty. Their identities no longer need to be protected as a matter of national security because they would no longer be in the business of national security.
As for the question of whether or not prosecutions would undermine intelligence agents' "confidence that they can do their jobs," I agree with Obama here. Prosecutions absolutely would undermine the CIA's confidence, and that is a good thing. No public official, least of all intelligence agents who already operate under cover of secrecy, should be wholly confident of the legality and morality of their actions. To guarantee such confidence would be to guarantee absolute impunity. Indeed, this necessary lack of confidence is precisely why the OLC memos exist in the first place, because interrogators were seeking advice about the legality of certain interrogation techniques. So the question is not whether or not prosecution would undermine the CIA's confidence, but rather a) how much so? and b) from what source is their confidence derived?
This brings us to the question of obedience. Obama's argument here is gravely disturbing. He asserts, in essence, that because the OLC says it is right, it is--that CIA agents should have absolute confidence in anything and everything approved by the OLC and/or ordered by the executive branch. Besides the shades of Nixon and Bush II, there are two things wrong with this assertion. First is the sweeping authority given to the OLC to determine wholly, by interpretation and in secrecy, the legality of actions that were known then to have been violations of multiple international and national laws. If the OLC determined tomorrow that rape was an appropriate interrogation technique, should CIA agents behave with confidence that they are acting within legal and moral bounds? I have a hard time believing that Obama, or anyone in his administration, thinks so.
Then there is the matter of culpability and deference to authority. Even if every single national and international law approved of the interrogation techniques used by the CIA, would they be just? Hannah Arendt wrestles famously with a similar question in Eichmann in Jerusalem. Eichmann claimed, as a CIA agent on trial might, that he was merely doing his duty, that he "not only obeyed orders, he also obeyed the law." Arendt, of course, found Eichmann both banal in his evil and culpable. Perhaps more to the point, she argued that the culpability of countless others (what others did or might have done) did not in any way mitigate Eichmann's guilt.
The same is true in the case of torture (although needless to say on a vastly different scale and context). Of course, higher-ups who ordered and sanctioned torture should be prosecuted as well, including the authors of the OLC memos. But that does not mean that the actual interrogators should be let off the hook en masse. Whether or not CIA interrogators should have refused orders or should have known that such orders were legally or morally wrong is a matter to be determined in trial, a matter of justice. It is not a question that can be swept away by the claim that they were just doing their jobs, that they were just being obedient subjects.
Because in the final analysis, it is highly likely that the CIA agents were just doing their jobs. And that those jobs were, in fact, criminal in nature. This brings me to Obama's last argument, that in essence we need to forget the past and move forward for the good of the country. The substitution here of the political necessity of unity for the constitutional and moral imperative of justice is Bushian to say the least. But perhaps what is most troubling is that our new President would calculatedly deploy his public goodwill to effect a kind of national amnesia in which actions he himself and his attorney general have called illegal and wrong are forgotten in the name of progress. Of course, I can see why he would do so, as a matter of political expediency. But political expediency is not justice.
Of Eichmann's crimes, Arendt wrote, "they were and could only be committed under a criminal law by a criminal state." That may also be the case with torture under the Bush administration. We owe it to ourselves to find out and that can not happen if we meekly follow Obama's request to forgive and forget.