NEW YORK


When lawyers supposed to represent the constitutional conscience of the White House review what sort of insect should be used to terrify a prisoner placed inside a“confinement box,”the extent of America’s post-9/11 disarray becomes clear.

President Obama’s courageous decision to release the legal memos opining on torture, made against opposition from his own C.I.A. director, amounts to a critical reaffirmation of core American values, including the rule of law, the accountability of the executive branch, and the transparency of the democratic process.

Example can be more powerful than coercion in battling the enemies of the United States. Obama understands this.

In a climate of fear, under a weak president, the law was manipulated by the very people at the Justice Department who were supposed to uphold it. The memos - elaborate, labyrinthine, evasive - are monuments to just how dangerous language can be. They are reminders of how a bureaucrat’s subordinate clause can lead to the neardrowning of a human being and other horrendous physical pain.

In releasing the memos, the president sought closure on a shaming episode. He urged the country to look forward rather than back. He made clear that his administration was opposed to prosecuting C.I.A. operatives who used the techniques, although he said it would be up to his attorney general to decide what to do about the lawyers who drew up the policies justifying torture. Obama’s inclination to avoid judicial action has prompted widespread criticism.

Martin Garbus, a prominent New York lawyer, wrote in a letter to The New York Times that criminal prosecution is required. Truth commissions or congressional investigations are not enough, he argued, because“they expose but they do not deter”and“only criminal prosecution can deter and punish the people responsible.”

The right balance between justice and stability, retribution and reconciliation, punishment and peace, is always an explosive political question after periods of national trauma. The post-communist societies of central Europe, postapartheid South Africa and post-war Bosnia are among the countries that have struggled with this challenge.

America after the 9/11 attacks was a traumatized country; the wars it embarked on in Afghanistan and Iraq exacerbated its disorientation and division. It is only with Obama’s election that some of the wounds have begun to heal, and a climate of fear - often cultivated by the Bush White House in pursuit of its political ends - has begun to give way to one of reason.

It is because the country is fragile - economically and socially - and because those wars are unfinished that I think Obama has made the right call in standing against criminal prosecution both of C.I.A. line agents and those who gave them legal advice. With the nation still at war, such prosecutions, if initiated, could split the intelligence services and the military in paralyzing ways.

The climate of fear and disorientation in which the memos were drafted was not confined to the Justice Department. Many, including my own journalistic profession, failed in the aftermath of 9/11 to hold the executive branch to the highest ethical, moral and political standards, notably in the run-up to the Iraq war. Such failures, it is true, were not gross manipulations of the law in the service of inhumanity, but they were failures nonetheless.

The best way to address for posterity the macabre world revealed by the memos is through some form of Truth Commission that would lay bare not only the failures in the White House and the Justice Department but also the collapse of congressional control and executive branch accountability that opened the way for renditions, secret sites and insect insertion.