They were only following orders

It seems to be the consensus of opinion that the Obama Administration will not tarry over the Bushian crimes of the past, nor prosecute violations of the War Crimes Act for torture or other outrages against humanity.  This is no great surprise.  Beltway wisdom, as Glenn Greenwald over there on the right hand column points out on a daily basis, always leans in favor of collegiality and sweeping things under the rug.  Even Patrick Leahy (D, Vt.), one of the more vociferous and effective critics of the Bush Administration's detention and interrogation tactics, does not favor any kind of Justice Department action against U.S. officials.  Rationales are easy to find for this sort of soft-peddling of criminal acts.  For example, the following reasoning:

"Pre-emptive pardons would be highly controversial, but former White House counsel Arthur B. Culvahouse Jr. said it would protect those who were following orders or otherwise trying to protect the nation.

"I know of no one who acted in reckless disregard of U.S. law or international law," said Culvahouse, who served under President Ronald Reagan. "It's just not good for the intelligence community and the defense community to have people in the field, under exigent circumstances, being told these are the rules, to be exposed months and years after the fact to criminal prosecution."

We haven't heard that one in a few decades: they were only following orders.  As indeed they were, I'm sure, but that's sort of the point of an investigation of the "higher-ups:" to determine what the legal basis for ordering violations of the the Geneva Conventions and the War Crimes Act was in the first place.  The "preemptive pardons" which Mr. Culvahouse mentions would only be icing on the cake, given the retroactive immunities granted by Congress, discussed below.  Anyway, I personally agree that the operatives "in the field" should not be the focus of any inquiry, and that we do make a hard job impossible by threatening them with prosecution for following Presidential directives.  The point is that it is not difficult here to find the higher source of this "banality of evil."  It's all in writing and admitted to by the President's inner circle.

Nikita Kruschev was faced with a similar quandary shortly after assuming power in the Soviet Union in the 1950s.  At the 20th Party Congress in 1956 he asked for special permission from the Presidium to deliver a detailed critique and denunciation of the atrocities of the Stalin Regime and the "Cult of Personality."  He was refused permission inititally by Molotov, Kaganovich and other high Communist officials.  Part of their angst was personal; many of them (and including Kruschev) had been involved in the purges, murders, and Gulag-related outrages of the Stalin Regime.  Using a parliamentary trick, however, Kruschev managed, about ten days into the Congress, to deliver a lengthy, detailed and extemporaneous denunciation of the Cult of Personality, and the transcript of that secret proceeding was spirited out of the inner sanctum of the Central Committee to the general Soviet populace.  It had an electrifying effect and set up many of the reforms which were gradually introduced over the course of the next eight years or so.

We're clearly not going to have such a moment in the United States.  Some features of the Soviet situation seem analogous to our own.  Congress embedded retroactive exonerations for war crime violations in the Detainee Treatment Act and the Military Commissions Act; essentially, reliance on the "advice of counsel" to assure one that following orders was okay cleans the slate of detainee abuse.  Thus, under U.S. law waterboarding of suspected terrorists, whether or not they were capable of producing actionable intelligence on an emergency basis (the "24" scenario), is forgiven retroactively, and a key element in such exoneration is the reasonable belief that the "advice of counsel" gave one the green light.  A majority of Democrats and Republicans, therefore, have joined forces to make certain that no effective prosecutions under the War Crimes Act ever take place, and part of the reason for their resistance is the extent to which they are all co-opted now by complicity in the "tactics."  We do not have a Kruschev on the horizon to bull his way through the stonewalling, so the matter will be put to rest.

The United States did undergo the ravages of a "Cult of Personality" over the last eight years, although I'm not entirely certain whose personality it was.  It seems almost comical to ascribe it to the feckless person of George W. Bush.  The Cult centered around the arrogant promotion of the Unitary Executive, with its signing statements abrogating legislative enactments and secret procedures for dealing with America's enemies.  America did establish its own Gulag, and did kill people under torture.  These are well-established facts.  Unlike Stalin, the American Cult of Personality did not mainly turn its ferocity against its own people, and that is why we are apt to be so forgiving and to "move on."  The victims to us are mostly faceless and anonymous, and it's not in our nature to worry too much about them.  Whether we can really "move on" without the archetypal "accountability moment" may prove to be a more serious question, however. I don't think human psychology permits such an open-ended progression.  At some point, we need to find out what we did, why we did it and what we're going to do about it.