Before Obama even took office, he announced his belief that “we need to look forward as opposed to looking backwards” on torture. That set the standard for Obama’s tenure, as all avenues of accountability for Bush-era torture were curtailed. A Justice Department inquiry into interrogators who broke even the “acceptable torture” guidelines ended with no charges. Civil lawsuits from former detainees were blocked when the Obama-era Justice Department invoked the state secrets doctrine. An internal Justice Department review of the torture memo authors concluded they had not committed professional misconduct when they worked backwards to justify the Bush administration’s use of torture in defiance of laws against it. Even a proposal for a South African-style “truth and reconciliation” commission was rejected. All avenues for any form of accountability for torture—criminal, civil, even professional—were blocked by Obama-era officials. Even an episode in which the CIA spied on Senate staff in an effort to stonewall an inquiry that ultimately found CIA torture ineffective, and then lied about having done so, ended with little more than an apology. [...]
The Obama administration’s actions helped entrench a standard of accountability that stretches from beat cops to CIA officials, one in which breaking the law in the line of duty is unpunishable, but those suspected of a crime—particularly if black, Muslim, or undocumented—can be subjected to unspeakable cruelty whether or not they are ultimately guilty. After all, these are public servants who have committed their lives to protecting Americans. Why should they be punished for being overzealous? But this logic is entirely backward. It is precisely because they are imbued with such power and authority that accountability is necessary. The public is not served by lawlessness in those to whom it grants power over matters of life and death. The logic of the war on terror, that no act of brutality carries a cost that is too dear to pay, is one that erases all distinctions between right and wrong. By “looking forward,” Obama has allowed Trump to look backward.
Obama’s decision must have seemed like the obvious one at the time. Picking a fight with the intelligence community in the middle of a recession, in which he needed congressional support to rescue the American economy, install a new financial regulatory regime, and pass health-care reform, probably seemed like a bad idea. But it has had tremendous consequences. And President Trump has shown no such squeamishness for picking messy political fights with intelligence agencies or law enforcement should they threaten his prerogatives, an asymmetry that can only warp the political incentives of entities whose authority must never be wielded in a partisan fashion.
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