Jonathan Bernstein's suggestion:
The way out — the only way out that I can see — is to offer a full pardon to everyone involved, followed by a commission. The president should make a statement that is as generous as possible to the motives of the previous administration, while as harsh as possible to the specific acts at issue. I don't think this is a difficult stretch at all. In fact, I think it would be pretty popular; I suspect, whatever the polling shows, that Americans aren't all that thrilled with the idea of "walling" people or devising ways to exploit their phobias, but they also don't really want to confront the possibility that their government did these things for sadistic or political reasons. Obama can claim (whatever the truth actually might be) that he believes that every act was motivated by a sincere and commendable desire to protect the American people, and that whatever mistakes were made were just understandable overreaction in the heat of battle.
Walling and phobias are the least of it: hypothermia, sleep deprivation up to 960 hours, waterboarding, brutal stress positions, sensory deprivation and isolation for years, mock executions, and confinement in upright coffins were all deployed and they are all forms of torture. The fundamental judge of torture, the International Red Cross, has called it torture; every other country in the world acknowledges that it was torture, the current president acknowledges that it was torture, and the record shows unequivocally that it was authorized and supervised directly from the president's and vice-president's office. My own hope was that president Bush would take the lead on this. But, alas, he hasn't. I see the great political benefits of this approach – but the belligerence of the far right that refuses to acknowledge the plain facts in front of us would still lead to deep polarization.
But in some ways, given the experience of previous instances in countries where new governments have to confront the war crimes of their predecessors while continuing to govern, this is a very promising idea. It's particularly promising because it prevents the Obama administration from becoming complicit, as we have seen already in the Binyam Mohamed case.
The perverse truth is that, in some ways, the Obama administration is in greater violation of Geneva than even the Bush-Cheney administration.
The Bush-Cheney administration denied – absurdly – that it ever conducted torture. President Obama has clearly stated on many occasions that it was torture. Geneva requires every government to investigate thoroughly and promptly all such acts of torture and bring the guilty to justice. Cheney could claim there was nothing to investigate – so he was in the clear. Obama, having conceded torture, has no such option.
The current refusal of the president to investigate the torture so prevalent in the previous administration may make sense from the narrow political perspective of Rahm Emanuel. It is not worthy of the seriousness and integrity of president Obama and it is not worthy of the United States of America. To my mind, exposing and ridding this cancer is more important than holding every single person criminally responsible. A deal in which a pardon would be followed by a rigorous truth commission, empowered to expose every single facet of what went on, would not be justice. But it would be some level of accountability.
(Images: a Khmer Rouge waterboarding technique from Cambodia's Museum of Torture, showing exactly the CIA technique of pouring water over a cloth onto someone's face to induce near-suffocation repeatedly. A stress posiition – one of the milder ones – at Abu Ghraib prison, along the lines of explicitly authorized stress positions approved by president Bush. An almost identical stress position used by the Peruvian Inquisition as presented in the Lima's Museum of torture. And a stress position at Abu Ghraib again designed to create intense pain – without any visible marks – by twisting a person's arms behind his back for long periods of time until he can take it no longer. The almost exact techniques approved by Cheney can be seen here in a Gestapo document here.)