Andrew Sullivan fisks Kristol’s latest on torture and presidential pardons. Obviously, I don’t want to see anyone implicated in torture get away scot free, but focusing on lower-level implementers – rather than the policymakers who implicitly or explicitly authorized their actions – strikes me as a bad idea. CIA agents who participated in waterboarding were probably operating under the assumption that what they were doing was both legal and necessary. The same goes for the NSA analysts who wiretapped phone calls without prior judicial authorization. Given the climate of political urgency immediately following 9/11, I think most low-level implementers should benefit from some legal latitude.
So in one sense, at least, Kristol is right. A public witch-hunt that hones in on a few hapless CIA agents misses the larger issue of the Administration’s complicity. As a matter of pragmatic politics, I also think going after a few big fish would be less divisive than the alternative. Low level bureaucrats following orders in the wake of an unprecedented national tragedy are actually pretty sympathetic figures. Bush Administration flacks who had access to the requisite legal background and were responsible for implementing an abusive interrogation policy, on the other hand, are not only more guilty, they’re also easier targets. Going after low level scapegoats is usually the path of least resistance, but Bush’s legacy of incompetence has laid the groundwork for holding people accountable. After eight years of disastrous mismanagement, an unforgiving public is a lot less likely to extend the benefit of the doubt to Administration higher ups.