Prosecution or pardon of torturers?

In her confirmation hearing, Loretta Lynch, the nominee for attorney general, stated mater-of-factly that waterboarding is torture. Some of the senators on the Judiciary Committee holding the hearing disagree with her, but they gave her no argument. They asked where she stood, and she said waterboarding is torture.

So the next question discussed by political pundits (but not at the hearing) is whether she plans on prosecuting those who ordered and oversaw torture: George Tenet at the CIA black sites; Donald Rumsfeld at the Pentagon-operated Guantánamo prison; David Addington, John Yoo and Jay Bybee at the Department of Justice for the legal opinions allowing waterboarding and other forms of torture; and George W. Bush and Dick Cheney, who oversaw it all.

Anthony D. Romero is the executive director of the American Civil Liberties Union. Shortly after the release of the Senate intelligence report on CIA torture in December, Romero penned an opinion piece for The New York Times recommending not prosecution, but pardon. He said when he first understood that we had tortured prisoners, he wanted prosecution of the perpetrators, but now he sees the power of the pardon.

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Pardon is a very interesting concept. It presumes and carries the stigma of guilt, so it is a kind of punishment. Further, pardon would recognize publicly and formally that these high-ranking decision-makers failed in their duty to obey the law. At the same time, it recognizes that those were trying times. But such a pardon would warn potential decision-makers that in future trying times, torture will still be illegal.

It is doubtful President Barack Obama will do anything right now. And Lynch will have a lot on her plate if she is confirmed. She won't be eager to prosecute old cases fraught with political overtones. But those old cases will be on her plate, too. Perhaps she will recommend that the president issue a pardon. Meanwhile, it is up to us to remember that torture has been done in our name and urge ways to repudiate it.


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