08/14/2009 05:12 am ET | Updated May 25, 2011

The "Truthiness" Dilemma

In most instances, the law allows one to plead inconsistent and alternative defenses. The Bush administration has used it to a fare-thee-well.

For instance: 1) it denies that it tortured; 2) if it did torture, it was authorized by advice of counsel; 3) even if the advice of counsel was tainted, the torture was justified by the thousands of lives it saved; 4) and in any event, the Democrats are jointly responsible because they knew and acquiesced in the mistreatment of detainees. The latter accusation is apt to keep the issue burning indefinitely and fires the demand for an independent "truth commission".

It certainly detracts from the more important crises confronting the country. What Nancy Pelosi knew and when she knew it hardly stems the flood of foreclosures, and whether she knew and failed to complain doesn't quite equate with actually authorizing and directly ordering torture. Somehow the Republicans see no irony in claiming the Bush administration did nothing wrong in their treatment of detainees, but Nancy Pelosi knew what they were doing and failed to complain or take steps to stop it!

As a result, the current administration and the country face a "truthiness" dilemma. The release of more photos and further evidence of prisoner abuse is certain to arouse our enemies and increase their recruitment. The failure to do so runs contrary to the President's commitment to transparency and results in concealing what may actually turn out to be war crimes. Some suggest that this issue of disclosure is the Pentagon Papers redux -- that unless some real and imminent threat can be established, the First Amendment trumps hypothetical harm -- no matter how likely it is to occur, thus requiring full disclosure.

Despite the denials by the Bush administration, by now the country and the whole world know that acts of torture were committed against detainees. If the purpose of a commission or hearings is to determine the extent of the torture and who authorized and directed it, I think that serves merely to lay political blame and would not be warranted considering so many other dire issues facing the country now.

On the other hand, if such commission, independent counsel, special prosecutor or grand jury is created with the expectation that it might recommend criminal prosecutions or other sanctions, to my mind, that would be a worthwhile purpose. I understand the President's desire to look forward rather than backward and that such investigations and possible indictments might appear to be politically motivated. But we criticized the previous administration for using the Justice Department for political purposes, can we now justify failing to use it for the same reasons.

Recent revelations about the role of Vice-President Cheney make it even more compelling that some formal inquiry is required. It must be conceded and recognized that indicting and trying top level officials of the opposition party of the prior administration, particularly for high crimes, is a wrenching prospect and establishes a dangerous precedent. But the questions the country and the Obama administration must face are: What will it do to us as nation if we pursue these allegations of torture and other misconduct? What will it say about us, if we do not?