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Investigate Now, Pardon LaterIt's not quite time to let bygones be bygones.

By Dahlia LithwickPosted Thursday, July 24, 2008, at 4:48 PM ET

It says much about the cartoonish ways in which we talk about law and politics that the conversation about accountability for the Bush administration's lawbreaking takes place chiefly at the extremes. The choice, it would seem, is between Nuremberg-style war crime tribunals, broadcast live at primetime in January of 2009, or blanket immunity for everyone, in advance of knowing what they did or why. The men and women responsible for our descent into torture and eavesdropping in the last seven years are cast as either Nazi war criminals, in the manner of Judgment at Nuremberg, or valiant American heroes, in the model of Fox television's Jack Bauer.

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There's not much dispute that domestic and international laws were broken in pursuit of the war on terror (see our monster Venn diagram). A federal judge recently ruled that President Bush violated the Foreign Intelligence Surveillance Act in ordering the National Security Agency to eavesdrop on Americans without warrants. Jane Mayer reports in her superb new book, The Dark Side, on a classified report from the International Red Cross finding that Bush administration officials authorized interrogation tactics that were "categorically" torture. And today we learn, from government memos released by the ACLU, that the Department of Justice authorized the use of "enhanced" interrogation techniques, including "the waterboard," on specific detainees. A handful of Bush administration officials continue to insist that water-boarding and eavesdropping are legal. Of course, they tend to be the same people who refuse to say that being buried alive or boiled in hot oil is illegal, so long as the president orders it.

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Emily Bazelon, Kara Hadge, Dahlia Lithwick, and Chris Wilson suggested crimes and misdemeanors for which the Bush administration could face prosecution. Jacob Leibenluft explained that the president has the power to pardon people pre-emptively, before they've even been charged with a crime. Dahlia Lithwick pointed out the failures of the war crime tribunals at Guantanamo Bay. Phillip Carter criticized the Defense Department for skirting the law by writing a memo on torture. Bonnie Goldstein posted John Yoo's March 2003 torture memo.

Such contortionism aside, the question for most of us now is not whether laws were broken, but what to do about it. The War Crimes Act of 1996 makes it a federal crime for any American—military or civilian—to cause a "grave breach" of the Geneva Conventions' ban on inhumane treatment for prisoners. U.S. interrogators have been inhumane. Some of them have not only tortured but, in at least 100 cases, killed prisoners. A smattering of relatively low-ranking soldiers have been prosecuted, but in most instances there has been little or no accountability and none whatsoever at the top.

Will a sorting and allocating of responsibility for torture and other acts of lawlessness tear the country apart, or is it a necessary step toward repairing our image in the world? Is punishing wrongdoers a partisan witch hunt? Or is the failure to punish its own kind of lawlessness?

There is a small but growing constituency for the prosecution of torture memo author John Yoo; Jim Haynes, former general counsel at the Defense Department; Defense Secretary Donald Rumsfeld; David Addington, the vice president's general counsel; and others. Antonio Taguba, the retired major general who investigated torture in Iraq, seemed to be urging such steps when he wrote in a searing report for Physicians for Human Rights that "there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

In testimony before Congress in May, Marjorie Cohn, president of the National Lawyers Guild, said that top U.S. officials are liable under the War Crimes Act and the Convention Against Torture. Cohn also said that under the doctrine of "command responsibility," officials at the top are liable if they knew or should have known their subordinates would torture and did nothing to stop them. Cohn called for a congressional committee and a special prosecutor to investigate. Philippe Sands carefully lays out the case against Jim Haynes, John Yoo, and the other lawyers who—he says—violated the law and their own ethical rules by twisting the law to achieve desired outcomes. But he has greater confidence that foreign courts will be the ones that bring them to justice.

Like Sands, lawyer and writer Scott Horton backs prosecutions but suspects they will happen outside America, if it all. He writes that despite "ample theoretical grounds for a war-crimes prosecution," such accountability "requires political will, which makes it quite unlikely to happen in the United States." Both Horton and Sands take comfort in knowing that the magic of universal legal jurisdiction means the torture architects will spend their golden years landlocked in America. If they leave, a foreign court could haul them in. A European investigating magistrate told Sands that "if one of the targets lands on our territory or on the territory of one of our cooperating jurisdictions, then we'll be prepared to act." Colin Powell's former chief of staff, Lawrence Wilkerson, says simply that Addington, former Attorney General Albert Gonzales, and former Undersecretary of State Douglas Feith should probably "never travel outside the U.S." In sum, we have all but announced that we give up on the idea of domestic accountability, but feel shivers of delight in the fantasy that Europe will someday get the job done for us.