Count me as one of those who believes not only that the United States engaged in a systematic, widespread, and officially sanctioned campaign of coercively interrogating terrorism suspects in both military and CIA custody in the months and years after the September 11 attacks, but also that there just cannot be any question, even before Tuesday’s release of the (Executive Summary of the) SSCI Torture Report, that many of the interrogation methods we deployed were torture–and were therefore in violation of clearly established domestic and international law whether or not they were ever “effective.”  The fact that either of these points are even open for debate–or that the fault lines in that debate appear to rest largely along partisan political axes–is a deeply disheartening, discomfiting, and even depressing reflection on the state of American politics today. But however unfortunate this state of affairs is, it’s the current reality, and one that helps to explain why, as I explain below the fold, I don’t believe it’s currently in our best interests to prosecute those responsible for these abuses. 

A lot of my thinking on this point was heavily influenced by a conference held at my alma matter, Amherst College, in October 2009, on “Prosecuting the Bush Administration: What Does the Rule of Law Require?” The 2010 book that came out of that conference is a fascinating collection of essays on the topic, and also has a piece by me “Justice Jackson, the Memory of Internment, and the Rule of Law After the Bush Administration.” In my chapter, I attempted to draw an analogy between torture after September 11 and the historical memory and historiography of the Japanese American internment camps, asking how we got to a point where they have become so soundly discredited and widely understood as one of the great stains not just on America’s moral conscience, but on the rule of law:

  1. As Justice Robert H. Jackson understood–and forcefully articulated–in his Korematsu dissent, the real violence to the “rule of law” resulting from the World War II-era internment of over 100,000 Japanese Americans was not the underlying policy, but rather its validation by the Supreme Court in Korematsu. In his words, “a military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution.” By analogy, the real rule-of-law harm resulting from torture during the Bush Administration did not come from the individual officers who were responsible for the torture, but from the senior government officials and lawyers who devised the legal rationale that facilitated such conduct (and took steps to avoid meaningful review of those rationales), because, in Jackson’s words, “the principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
  2. Both the internment camps and the Supreme Court’s implicit affirmation of their legality in Korematsu were highly controversial at the time, with widespread disagreement as to the legality and necessity of such extreme measures during wartime. As I wrote in the chapter, “early attempts by the internees (and others affected by the curfew and exclusion orders) to obtain appropriate reparations ran headlong into the legal precedent set by Korematsu–and the federal government’s unwillingness to concede that any aspect of the exclusion and relocation process had been unjustified in law or in fact.”
  3. Over time, the disagreement over the legality and necessity of the camps gave way to an increasing consensus not only that the measures taken against Japanese Americans during World War II had in fact been both unnecessary and illegal, but that the government had affirmatively misled key institutions–including the Supreme Court–to cover up these points. As a result, Korematsu is now part of the “anticanon,” even if its actual reasoning has never been expressly repudiated by the Supreme Court.
  4. As I argued in the chapter, “this consensus narrative discrediting internment in general and Korematsu in particular has emerged even though no one was ever held personally liable for the policies that led to the camps. No military or executive branch official was prosecuted or sued for violating the internees’ rights; no government lawyer was disbarred.” Instead, the narrative emerged largely from a bipartisan, multi-branch consensus over the need to develop a complete historical record–culminating in the creation (and damning final report) of the Commission on Wartime Relocation and Internment of Civilians (CWRIC), the passage of the Civil Liberties Act of 1988, and President George H.W. Bush’s formal apology for internment in 1989.
  5. Prosecutions, on the other hand, could backfire. If the focus is on line officers, they could simply argue that they sought–and received–legal advice to the effect that what they were doing was not illegal. It’s easy for critics to just refer to this claim as the “Nuremberg defense,” but it’s more complicated than that. Although we should all have a moral obligation not to comply with orders that we believe are unlawful, it’s clear both that (1) at least some of the officers didn’t so believe; and (2) senior government lawyers in formal and informal legal opinions concluded expressly to the contrary. If anything, such legal rationalization should shift the focus of individual liability away from the line officers and toward the lawyers, but even there, “attempts to establish individual liability could also backfire. If the goal is to establish that the legal opinions were based on fundamentally flawed legal or factual assumptions, the prosecution’s inability to establish any single element of the crime may actually serve to vindicate the conduct at issue (a possibility that is also present in civil litigation). And in any event, as the current debate demonstrates, there will be any number of defenders of the targeted individuals who dismiss the pursuit of individual liability, no matter its merits, as a political witch-hunt and the worst kind of victor’s justice.”
  6. Thus, “using the internment experience as a foil, the rule of law in the United States may best be vindicated by the historical (and moral) acceptance of legal justifications for government conduct rather than by the individual liability of particular government officers for specific abuses. If true, such a conclusion not only bolsters the context-specific argument that criminal investigations of the Bush Administration are unnecessary in order to preserve the rule of law (whether or not they are politically desirable, a question that will surely divide reasonable readers), but it might also provide the basis for rethinking our broader understanding of the relationship between impunity, the role of courts in our legal system, and the rule of law.”

Looking back on this chapter five years after I wrote it, I have to say I’m even more convinced now than I was then: The problem isn’t that laws weren’t broken, or prosecutions might not succeed. The problem is that our real goal, as a polity, should be in hard-wiring into our historical and legal consciousness the conclusion that these actions must never be given legal sanction again. And the more that prosecutions are perceived across large swaths of American society as the “criminalization of politics,” whether rightly or wrongly, the less I suspect that historical narrative will be able to develop. In that regard, disclosure of the SSCI Report’s Executive Summary is a welcome first step, but the debate should shift from here not to the question of who should be held accountable, and how–but rather of how we can get past the political differences on this issue (however inexplicable they may be to many of us), and begin to create the same kind of historical consensus that has come to vilify internment.

At the end of his dissent in Korematsu, Justice Jackson argued that “[t]he chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.” So long as the contemporary political judgments remain so bitterly contested, our focus should–and must–shift to aiding in the formation of the moral judgments of history. And for all the values that individual criminal prosecutions do–and can–serve, it’s hard to see how, at this moment, they can play that role here.