The old adage held that if they couldn’t get you for the crime, they would get you for the coverup. But this week, it was revealed that both the crime and the coverup will go permanently unpunished. Which suggests that everything in between will go unpunished as well. In an America in which the former president can boast on television that he approved the water-boarding of U.S. prisoners, it can hardly be a shock that following a lengthy investigation, no criminal charges will be filed against those who destroyed the evidence of CIA abuse of prisoners Abu Zubaydah and Abd al-Rahim al-Nashiri. We keep waiting breathlessly for someone, somewhere, to have a day of reckoning over the prisoners we tortured in the wake of 9/11, without recognizing that there is no bag man to be found and that therefore we are all the bag man.

President Barack Obama decided long ago that he would “turn the page” on prisoner abuse and other illegality connected to the Bush Administration’s war on terror. What he didn’t seem to understand, what he still seems not to appreciate, is that what was on that page would bleed through onto the next page and the page after that. There’s no getting past torture. There is only getting comfortable with it. The U.S. flirtation with torture is not locked in the past or in the black sites or prisons at which it occurred. Now more than ever, it’s feted on network television and held in reserve for the next president who persuades himself that it’s not illegal after all.

Since Barack Obama became president, the debate over torture in America has taken a morally corrupt turn. Defenders of the old regime continue to defend the use of torture as essential to the nation’s defense. Their claims are contradicted by the facts: torture was used to extract false confessions that fueled, among other things, the invasion of Iraq on false pretenses. The fact that America tortured is still a principal recruiting tool for radical Islamists. But Obama has kept silent in the face of all of this, not wishing to engage torture apologists in debate. More significantly, he has apparently encouraged his Justice Department to squelch any meaningful investigation of torture, in violation of the clear requirements of law. A policy that says “don’t look back” means the triumph of torture: while we may not be captives of our past, we are the captives of our perception of the past. When one side offers an airbrushed version of the past and the other is silent, then, in the binary world of Washington, victory goes to the falsifiers.

Scott Horton is a Contributing Editor of Harper's Magazine. A New York attorney known for his work in emerging markets and international law, especially human rights law and the law of armed conflict, Horton lectures at Columbia Law School.

Nov. 17, 2010

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