Hell yes, prosecute them
Yes, I'm not kidding. I suppose we must take it on faith that the people making these claims are not just doing it because they support the use of torture, but it's hard to see any other sensible rationale for this position.
Here's a sampler:
In the Times, ACLU national president Anthony Romero says: The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again.
In Slate Jamelle Bouie makes the same point: Besides, if we’re trying to keep this from happening again, we don’t want punishment as much as we want to restore the consensus against torture. With explicit pardons, you can send the message that torture was illegal (and as Romero notes, signal to those “considering torture in the future that they could be prosecuted”) without taking legal action against the architects. And, as Bernstein argues, you can give generous pardons and lessen the officials’ “reputations as bad guys.”
And also in Slate, Eric Posner says: But Obama’s best argument for letting matters rest is the principle against criminalizing politics. This is the idea that you don’t try to gain political advantage by prosecuting political opponents—as governments around the world do when authoritarian leaders seek to subvert democratic institutions. Of course, if a Republican senator takes bribes or murders his valet, the government should prosecute him. But those cases involve criminal activity that is unrelated to the public interest. When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.
Before we consider these arguments, let's just review what the CIA and the Bush administration did in their torture campaign:
They subjected five detainees to forcible anal rape in the guise of nutrition and hydration, resulting in lasting physical injuries.
They killed a man by stripping him, chaining him to a concrete floor in freezing conditions, and leaving him there until he died of hypothermia.
Beginning the evening of March 18, 2003, KSM began a period of sleep deprivation, most of it in the standing position, which would last for seven and a half days, or approximately 180 hours.
They repeatedly lied about what they were doing and its effectiveness to Congress and the American public.
While it's to be expected that Republicans will rush to support the most vile crimes committed at Bush's behest, and they have, it is beyond inconceivable that Democrats or civil libertarians should take the same position.
But let's consider the proffered arguments as though they deserve to be taken seriously.
First, Romero claims that issuing pardons may prevent the future use of torture. The reasoning seems to be that issuing a pardon is an unequivocal statement that the conduct was illegal, and it will send a message to future torturers and their bosses that they'd better not do it again. Yes sir, nothing deters future bad behavior like issuing a statement that there are no consequences for that behavior, right?
But what of the unequivocal statement of criminality? What of it? He uses Ford's pardon of Nixon as an example (and you will never convince me that there wasn't a deal for that pardon in advance, probably before he picked Ford to be vice president), but Nixon went to his grave proclaiming that he didn't do anything wrong except to give his political enemies the ammunition they needed to get him, and that "If the president does it, that means it's not illegal."
Second, Bouie argues that issuing pardons will "reinstate the [bipartisan] consensus against torture. The problem is, this consensus is wholly imaginary. Look at what the Republicans are saying now: everything the CIA did was right, they just should have done more of it. They just don't oppose torture; they don't see anything wrong with it as long as it's the Americans who are doing it. Look at Lindsay Graham, whose support for torture hearkens back to the Spanish Inquisition. Nothing Obama does, from pardons up to giving each one of these torturers the Presidential Medal of Freedom, will make the Republicans turn against torture.
Bouie also makes this very weird statement, quoting Jonathan Bernstein: pardons will lessen the torturers' reputations as bad guys! That's really what we're concerned about? That someone will think ill of a government official who orders waterboarding, anal rape, and slamming detainees against a concrete wall? If you're worried about making these guys look bad I suggest that your moral judgment is seriously deficient.
Finally, Posner, whose biggest concern seems to be that pardons will keep the issue from being politicized. This is a Republican Party whose members on the committee couldn't be bothered to participate, much less seriously consider the merits and morality of torture.
No, rather than follow these pusillanimous moral cowards, I prefer the views of the U.N. High Commissioner for Human Rights, who said: "In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture — recognized as a serious international crime — they cannot simply be granted impunity because of political expediency," he said.
And the special rapporteur on terrorism and human rights, who said: international law prohibits granting immunity to public officials who allow the use of torture, and this applies not just to the actual perpetrators but also to those who plan and authorize torture.
Obama did a great thing by immediately stopping the Bush torture program. He must follow the legal and moral logic of his position and prosecute those responsible.