Even if you support prosecuting the entire damned Bush administration for torture and any of ten thousand other crimes, a 9/11-style commission is clearly the right thing to do. A decision this consequential could make the country practically ungovernable if the administration imposes it on the nation from the top down. Actually, let me correct myself. A well-meaning administration might lose control if it tried indicting half of the previous one without giving the public a full accounting. With enough fear and made-up war powers Obama might pull it off but, fortunately, America has had enough of that.
Shortly after the Senate handled Alberto Gonzales with relatively mild gloves John Yoo declared that “…the debate is over. The issue is dying out. The public has had its referendum.” That was a lie. For all that it knew about torture at the time that Gonzales spoke the public could as well hold a referendum on the mating habits of an extinct species of penguin. Alberto Gonzales was confirmed on February 4, 2005; at that time the argument that a few misguided privates freelanced the abuses at abu Ghraib still sounded minimally plausible.
Setting aside his nonsense argument, note that even John Yoo, the guy who argued that war gives a president the power to imprison the Senate Majority leader without charges, crush children’s testicles and make the sun rise out of a second floor sink in suburban Atlanta, acknowledged that the president’s legitimacy depends in part on informed consent from the public. It means something that the eternal sunshine machine failed to wipe all 85 Federalist Papers from John Yoo’s eager mind.
Just one time I will say that Yoo is right. A democratic nation should never make a decision like torture or, say, mass prosecutions for committing torture without weighing the decision publicly. Mass pardons, if they happen, will at least give us a supply of well-placed officials who cannot plead the fifth.