Financial Times Editorial Comment: Prosecuting torture

Financial Times Editorial Comment: Prosecuting torture
Copyright The Financial Times Limited 2009
Published: April 27 2009 20:28 | Last updated: April 27 2009 20:28
http://www.ft.com/cms/s/0/c8a2aa08-3360-11de-8f1b-00144feabdc0.html


Hard though it is to believe, Barack Obama may be facing an issue with bigger consequences for the US than any already on his desk: whether officials from the previous administration – perhaps up to and including George W. Bush – should be prosecuted for violating domestic and international laws on torture.

This debate began in earnest when Mr Obama agreed to release “torture memos” written by Bush administration officials. Mr Obama had hoped to draw a line under the issue. The effect was the opposite. In the fight that has broken out the stakes are huge.

One point is clear and must be underlined. Brutal methods of interrogation such as waterboarding are, in the ordinary meaning of the word, torture. No civilised country should deem their use lawful.

The view that torture might save lives in “ticking bomb” situations cannot be dismissed, but this benefit – such as it is, since torture yields more false information than true actionable intelligence – is far outweighed by the costs. For every captive tortured by the US, thousands of new terrorists come forward and millions of people are strengthened in their hatred of the US and its aims. Even so, the question of legal action against members of the former administration is hard. Prosecutions would affirm the rule of law and the country’s determination that such lapses from wisdom and morality should never recur. Put that way, it seems open and shut. But US law on waterboarding is not as clear as it should be. Congress could have banned the method explicitly but did not. Successful prosecutions are possible but by no means guaranteed.

Let the law take its course, many argue, and see what happens. But bear in mind that US reverence for the law can sometimes be a trap. The country looks reflexively to the courts to settle its bitterest disputes. When the law is mixed with vicious partisan politics, as in this case, the results can be terrible. The law took its course in the Monica Lewinsky scandal during the Clinton administration. That set the country at war with itself, and in the end regard for the law was the principal victim.

Worse could happen this time. Many Americans would see prosecutions as partisan; their loudest advocates do seem driven more by loathing of the Bush administration than zeal for justice. Rather than building a consensus against torture, which is the real prize, prosecutions might militate against it. Mr Obama may now be unable to halt the process. Before choosing not to try, he should think hard about where it might lead.