John YooJohn YooBy Arturo Mora, Kansas City Star Midwest Voices columnist 2009

CIA agents who may have carried out torture during the Bush Administration should not be prosecuted. Former Deputy Assistant Attorney General John Yoo, as well as other Office of Legal Counsel lawyers involved in the writing of the notorious torture memos used to justify this torture, should be fully investigated and prosecuted if so warranted.

Unless strong and irrefutable evidence is found that President Bush or Vice President Dick Cheney knowingly and willingly broke the law in their dealings with Yoo’s department, they should not be prosecuted. Even if that’s the finding, the Obama Administration should move with extreme care in bringing charges, because of bad precedents it would set.

The CIA agents, giving them the benefit of the doubt that they acted in good faith, were only following orders.

I know, I know. Critics say it’s a perfect parallel to the Nazi defense at Nuremberg. It’s a rabbit hole of logic we should be careful of crawling down.

Waterboarding—any torture—is indefensible. The agents who did it should have known better, regardless of orders. They lost their moral compass. With a sense of duty in dire circumstances, they latched onto the Yoo legal cover. They had to have willingly put on moral blinders, because they are not stupid people.

Let’s put things in perspective, though. Nazis following orders killed millions and burned people in ovens. They deserve the place in hell reserved for them, orders or not.

Torture, especially in a democracy, is unacceptable. As horrific as what the agents did to their prisoners was, it’s not the same as participating in the Hitler killing machine.

Let’s also be clear, that although some of those interrogated may have their own place in hell reserved, if America stands for anything at all, it should not be torture.

This is all gray to me, not the black or white much of the left or right wants to make of it. I’m sure you’ve heard the classic debate before, asking if you were socialized in Nazi Germany, what would you have done? I’m sure many quickly answer, “disobey orders!”

That’s a high and mighty lie, because you don’t really know until you’re in that exact context.

CIA agents, after 9/11, with no idea if another attack was imminent, pressured by their fear, by their sense of duty to a fearful nation, led by a White House awash in fear—all of this swimming in their heads and clouding that moral compass—acted in good faith, from their perceptions. That is my belief.

The politicians and lawyers, on the other hand, had a much greater responsibility and failed. They were charged with the ultimate defense of the US Constitution, regardless of circumstances, and failed.

If they did so with willful disregard for the Constitution, they should be held responsible and be subject to prosecution.

The case of Bush and Cheney, however, is more problematic and grayer. When it comes to security matters, many if not all presidents have winked at the Constitution.

Lincoln, FDR, Kennedy, LBJ, Nixon, Reagan, Teddy Roosevelt, Andrew Jackson, and on and on, all of them in some way winked at the Constitution when they perceived danger to the nation.

I’m not saying any of these made the right judgments, but that right or wrong, our presidents are given a lot of leeway when it comes to protecting America.

So to prosecute Bush (or even Cheney) for doing the same would be hypocrisy. If we do prosecute them, we had better be very sure their wrongdoings were on a level heads and shoulders beyond any historical presidential transgressions. To not make a clear cut case would risk charges of partisanship that would irreparably add to our national political divide.

The better outcome would be to prosecute Yoo—and colleagues such as David Addington, Jay Bybee, William Haynes, and yes even their bosses, John Ashcroft and Alberto Gonzales. A strong message needs to be sent that, going forward, this is not what America is all about.

Like it or not, most past presidents did our dirty work in the dark, not bothering with the broad daylight of legal cover. By providing that legal cover, Yoo and gang sought to give legitimacy to acts blatantly in violation of our principles.

By doing so, they risked setting dangerous precedents in constitutional law, seeking to legitimize behaviors that should never be justified in American law.

If this dirty work of national security needs to be done, it should be done outside of the Constitution, and never justified by it. Keep it in the dark where it belongs. Let’s not try to make it seem legal.

You may say this is a contradiction, considering I mentioned what America should stand for. If you say, well, let’s stick to our principles, this dirty work shouldn’t be done at all, I say, sure, once we achieve that pure fantasy world we’d all like to live in.

In the meantime, wake up and smell the behind-the-scenes ugliness that sustains our military and economic dominance, which props up our standard of living. Willing to give that up? Really? Sorry, I don’t believe you.

Perhaps I’ve read too many spy books—though I consider John LeCarre more real than most of what I’ve ever read in the papers—but I know somewhere in the world, regardless of what President Obama orders, people will continue to put their consciences on hold to protect us.

Do I want it to be otherwise? Of course. I’ve written about peace before and I believe in it, personally and in the world.

I also believe in truth and seeing things clearly as they are. Until we’re willing to completely renounce everything their dirty work brings us, we should not so easily condemn those who do it.