Obama flip-flops in the right direction

Welcome to the real world, where not all lobbyists are bad, not all earmarks are bad, and not all flip-flops are bad – especially not when they uphold the rule of law.

On torture, President Obama faced two tough decisions. At first, he got one right and one wrong. The first decision was whether to release previously classified memos detailing the methods of torture – from sleep deprivation to waterboarding to planting insects in prison cells – authorized by the Bush administration. Obama correctly chose to do so.

Obama had already banned future use of such so-called "enhanced interrogation techniques." He decided to make the memos public, explained Press Secretary Robert Gibbs, for three reasons: A judge was about to order their release anyway; many of the torture techniques used had already been widely reported in the media; and, quite simply, it was the right thing to do.

Obama rejected the stale arguments of former CIA directors that publication of the memos would embolden terrorists, thereby making America less safe. In fact, the exact opposite is true. The fact that the United States now acknowledges the interrogation methods used, admits they were wrong and bans their future use, gives terrorists one less argument they can use against us.

But then President Obama dropped the ball. Having laid out the types of torture, which many consider illegal, used under the previous administration, he declined to authorize prosecution of those Bush officials who either gave or carried out the orders. He did so, argued Gibbs in a testy exchange with reporters that I attended, because Obama believes this is a time for "reflection, not retribution."

TRENDING: 'So cool': Kathryn Limbaugh shares Rush's final moments

That argument was simply not convincing. How could Obama detail crimes committed by members of the previous administration, then turn around and let off the hook those who committed the crimes? Prosecution is not retribution. Prosecution is enforcing the law. The failure to investigate and prosecute the architects and agents of torture is nothing less than a cover-up of war crimes of the Bush administration.

The case for prosecution was further strengthened by three related events. First, reports that some European countries, using a legal principle known as "universal jurisdiction," have assumed authority to investigate human rights violations anywhere in the world. Indeed, Spanish prosecutors have weighted investigation of six senior Bush officials for torture of prisoners at Guantanamo Bay. How embarrassing were Spain to act where we did not.

Second was a report by the Senate Armed Services Committee that Pentagon officials, right up to former Secretary of Defense Donald Rumsfeld, approved the use of waterboarding and other forms of torture by military personnel eight months before the Justice Department had ruled them legally acceptable.

Third was a New York Times report revealing the shockingly inadequate research that went into the post-Sept. 11 decision to use torture. As documented by the Times, former CIA Director George Tenet sold waterboarding – to George Bush, Dick Cheney, Condoleezza Rice, John Ashcroft, Colin Powell, Donald Rumsfeld and leaders of Congress – on the basis that the practice was routinely taught as part of U.S. military training programs.

He did not add that waterboarding was taught in the context of what to expect from criminal regimes that did not respect the Geneva Conventions; that the United States had convicted Japanese soldiers for use of waterboarding during World War II; that the technique was used by Chinese troops during the Korean War to coerce false confessions from Americans; and that the military itself had abandoned waterboarding because it proved ineffective. Indeed, under Bush, the CIA waterboarded two al-Qaida suspects 266 times without learning any new information.

At which point, President Obama reversed course, supported an investigation by Congress or an independent "Truth Commission" and, based on their findings, let Attorney General Eric Holder decide whether to prosecute and how high up in the Bush White House to go.

Holder must now proceed to show the world that we take war crimes seriously. Maybe those CIA agents who merely followed orders should be let off the hook. But those who wrote the memos and those who gave the orders – including Alberto Gonzales, Dick Cheney and George Bush – must be held responsible.

Chalk this one up as the first big learning experience of the Obama administration. Yes, Obama did a big flip-flop. But it was in the right direction!