In his confirmation hearing yesterday, CIA Director presumptive Leon Panetta  said that the Obama Administration will not prosecute CIA officers who participated in harsh interrogations that most agree crossed the line into torture. He did reserve judgment on whether or not those at the top of the food chain who ordered the torture might in the future be required to account for their decisions.  Panetta is clearly sending a signal to his new colleagues that there will be no witch hunt, which is commendable, but he is also signalling that there will be no accountability for engaging in what is essentially a war crime.

Liberals on a number of websites looking at the torture issue tend to want it to go away.  Do not do it in the future, but don’t go after those who carried it out in the past.  One blogger on Daily Kos noted that the CIA officers who tortured would have been court martialed if they had refused orders to carry out the waterboarding.  Well, that analysis is not really accurate.  CIA officers are not under military discipline and can either refuse orders or, in a worst case, resign if told to do something that goes against their conscience.  To my mind, those who legitimized and ordered torture (George Tenet, John McLaughlin, Cofer Black, John Yoo, Alberto Gonzales, Dick Cheney) should be facing prison time, but no one should walk away from this one. 

Panetta is right in seeking to create a counter-terrorism environment in which CIA can detain and question suspects without torture, but he also has to establish a principle of accountability so that in the future no one will even consider “enhanced interrogation” to be acceptable.  Far too many people in the United States believe that torture is okay if applied to “terrorists,” forgetting that the system for determining who is actually a bad guy is deeply flawed, based as it is on testimony that is almost always uncorroborated.  All of which is why we have had a constitution and a rule of law, to restrain those in the government who would do something stupid.  I am not saying that we should bring back hanging for CIA officers who waterboarded, but, at the same time, they should not have a get out of jail free card.  John Yoo’s pontifications that torture was legal notwithstanding, they surely knew that what they were doing was wrong.