It's hard to argue with their reasoning (my emphasis):
The nation cannot move forward in any meaningful way without coming to terms, legally and morally, with the abhorrent acts that were authorized, given a false patina of legality, and committed by American men and women from the highest levels of government on down.
These are, simply, crimes. They are prohibited by federal law, which defines torture as the intentional infliction of “severe physical or mental pain or suffering.” They are also banned by the Convention Against Torture, the international treaty that the United States ratified in 1994 and that requires prosecution of any acts of torture.
No amount of legal pretzel logic can justify the behavior detailed in the report. Indeed, it is impossible to read it and conclude that no one can be held accountable. At the very least, Mr. Obama needs to authorize a full and independent criminal investigation.
But any credible investigation should include former Vice President Dick Cheney; Mr. Cheney’s chief of staff, David Addington; the former C.I.A. director George Tenet; and John Yoo and Jay Bybee, the Office of Legal Counsel lawyers who drafted what became known as the torture memos. There are many more names that could be considered, including Jose Rodriguez Jr., the C.I.A. official who ordered the destruction of the videotapes; the psychologists who devised the torture regimen; and the C.I.A. employees who carried out that regimen.
Ask yourself this question: If the United States had lost the Iraq War, like the Nazis lost World War II, is there any doubt that the individuals listed above (and others) would be tried for war crimes? (Remember what you learned in school: The victors write the history.)
The editorial also says:
The American Civil Liberties Union is to give Attorney General Eric Holder Jr. a letter Monday calling for appointment of a special prosecutor to investigate what appears increasingly to be “a vast criminal conspiracy, under color of law, to commit torture and other serious crimes.”
But just a week or so ago, Anthony D. Romero, the executive director of the ACLU, wrote an opinion piece in the Times, "Pardon Bush and Those Who Tortured," which I think makes a lot more sense:
But let’s face it: Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.
Mr. Obama could pardon George J. Tenet for authorizing torture at the C.I.A.’s black sites overseas, Donald H. Rumsfeld for authorizing the use of torture at the Guantánamo Bay prison, David S. Addington, John C. Yoo and Jay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all.
The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware. Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.
But it's that one phrase -- "because of the political fallout" -- that I think is key here. Why doesn't President Obama pursue prosecutions? Because he knows that with the Republican Party in its current state he would be vulnerable in the next few years as well. Is it so hard to imagine the crazy party coming up with some trumped-up charges with which to prosecute this president in the future? After all, if Bill Clinton could be impeached for having an affair with another consenting adult, then anything is possible.
So I'd be more for pardoning Mr. Cheney, et. al. I like this sentence from the above piece:
Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware.