In my mind, Jane is asking the most important question--the accountability question. I also have had a run-in with a senior CIA official who described to me in some detail being briefed on the new policies. "I decided that afternoon that I was taking an early retirement," he told me. He went on to note that "it seems quite a few people took early retirement after getting that briefing." He also told me his thinking was simple: "It's not that this was bad policy. It was a crime. Black and white." It's clear that these moves were very controversial within the intelligence service. Although the pushback in the military is now very well documented, the pushback at CIA remains anecdotal. It will come in time, I think.

Critics warn that prosecutions would trigger a cycle of retaliations which would cause a meltdown in our democratic institutions. But there is a difference between torture and disappearances on one hand and the petty chicanery that most administrations engage in surrounding elections and career appointments on the other. A rigorously correct process is the best way to achieve a fair result. We should avoid any rush to judgment and the issue should be dealt with carefully, soberly and with a maximum amount of detachment from the political process. And we should start with some thinking about the purpose of any accountability exercise. The punishment of some official actors who misbehaved is rather a small point in the larger scheme of things. There are two very big points. One is that we need to be concerned that the laws of war generally and the prohibition on torture in particular are respected. Enforcement needs to meet this objective. And that doesn't counsel for enforcement measures in difficult or borderline cases--if the enforcement action is seen as retribution, or some sort of political game, then it undermines respect for the laws of war. That suggests, particularly when dealing with political figures, that enforcement measures should be brought when a compelling case can be built, and should be avoided when the case is weak. The second big point is, to use Abraham Lincoln's words (though he borrowed them from Immanuel Kant), that enforcement cannot make the return to a lasting peace more difficult. Both points are served when there is broad recognition that justice is being done and undermined when the actor's motives are seen as some sort of petty partisan politics.

I am also very troubled by the fact that the Bush Administration's policies establish a precedent, and in our constitutional system precedents are very powerful. The law may be clarified and reinforced, but for generations to come that precedent will stand. The only effective way to topple it as precedent may be enforcement action of some sort.

I also agree with Christopher Hitchens that it is not simply a question of the accountability of officials of the executive branch. The Administration claims that the "Gang of Eight" was briefed, and there are suggestions of approval of acquiescence. In any event, Congressional oversight did not function properly. There should be accountability for Congressional action or inaction as well.

I think the answer at this point is a thorough inquiry, following the 9/11 commission model or perhaps the Rockefeller commission from 1975. The commission should get to the bottom of the facts, give us answers to the policy questions, and force much of what the Bush team did in the shadows into the light. Then there will be plenty of time to deal with the question of individual prosecutions if it turns out that there was criminal conduct, and there is solid evidence to establish it. But I'm preparing to set out my thoughts on this in much greater detail elsewhere.

In any event, watch Taxi to the Dark Side tonight and ask yourself whether it's fair that a half dozen young enlisted men and NCOs were prosecuted and had their lives ruined for conduct that policy makers in Washington reasonably expected to occur. You may conclude that they deserved to be prosecuted. But then you should fairly ask why the prosecutions stopped there, when the doctrine of command responsibility would have required them to continue up the chain of command?