Let me reprise some of the main points from my column on torture prosecutions:
(a) Possibly, torture can succeed in extracting vital information.
(b) On balance, however, torture does not make the US safer.
(c) In any event, it is shameful and wrong.
(d) Waterboarding is torture in the ordinary meaning of the word.
(e) Notwithstanding (d), the law is not as clear as it should be on whether waterboarding as practised during the Bush administration is torture under the law.
(f) Congress could and should have outlawed waterboarding explicitly already. It should do so now.
(g) Because of (e), and because the issue is so acutely divisive in the US, prosecutions under the existing law may serve neither the cause of justice nor the public interest.
Most of the non-abusive emails I have received about this rightly concentrate on (e). They say that domestic and international law on this is perfectly clear. They point out that the US has prosecuted foreigners and its own citizens for waterboarding in the past. A few have referred me to this much-cited paper by Evan Wallach, which I was familiar with before writing the column and which is well worth reading. The author also had a column in the Washington Post summarising his argument.
I acknowledge that I am not well qualified to judge this issue. I am not a lawyer, but I have wrestled with the law on it enough to know that it is far from simple and a matter of dispute among lawyers. As now seems to be mandatory on this and other issues, positions are stated with false certainty and with unyielding moral absolutism. It is necessary to read everything sceptically.
The earlier cases do not prove that waterboarding as practised during the Bush administration was illegal, only that waterboarding carried out in certain ways and under certain circumstances has been successfully prosecuted. The designers of the policy knew the law and manoeuvred--absurdly and offensively, perhaps, but they would not be the first lawyers to stoop to that--to stay within it. As for whether, regardless of domestic law, the international Convention Against Torture mandates prosecution, you have to understand the distinction between treaties that become the law of the land in and of themselves, and treaties that the US adopts, and in effect modifies, with a law of its own. The Convention Against Torture is of this second type. Arguably, therefore, relevant parts of the CAT are not enforceable in US courts.
Incidentally, there is further disagreement over whether the US government has discretion not to prosecute, even if it takes the view that a law has been broken. Some constitutional lawyers say it does not. The administration's promise not to prosecute interrogators implies that it thinks either the law was not broken, or else that it does have discretion not to prosecute.
If prosecutions were brought, could one count on getting convictions? Because of the deliberate imprecision of current law, the defence has a case to make, and a jury, reminded of what was at stake in the aftermath of 9/11, might be inclined to listen to it sympathetically. So one at least needs to ask, what would be gained by prosecuting these crimes and seeing the defendants acquitted? Surely this would undermine rather than affirm a US commitment never to use these methods. And I think the same goes for the suggestion being made that culprits up to and including George W. Bush should be prosecuted and if found guilty pardoned. I admit, when I first read that I thought, "Only in America". We stand on the principle that torture is a crime and will be prosecuted without fear or favour to the fullest extent of the law (with pardons to follow). How's that for a clear message? But at least the rule of law has been upheld, you might reply. Well, as I have mentioned, the rule of law will also be upheld, according to one school of thought, if the Attorney General exercises his discretion not to prosecute.
As this leader in the FT notes, what matters most here is not to put George W. Bush and his team in jail, or to try them and then pardon them. It is to guard against such measures being used again. That is a political as much as a legal project--it requires the building of a moral consensus, the changing of many American hearts of minds--and in my view it is best advanced not by prosecutions but by the "look forward" approach Obama first said he wanted to follow.
One last thing. I wanted to draw attention to a blogpost attacking my column by Henry Farrell at Crooked Timber. He says: "This piece on how (a) we shouldn't do waterboarding on pragmatic grounds but (b) it isn't really torture, is reprehensible." This remark is abusive, of course, but that is business as usual. What makes it interesting in a professional scholar and writer on a leading blog is its remarkable incompetence--or, perhaps, its total lack of good faith. I ask you to read the column, or review my summary of it above, and ask yourself how any fair-minded intelligent person could distil my position to those two points.
The name Crooked Timber is I imagine homage of a sort to Kant, who coined the phrase, which is worth thinking about--"Out of the crooked timber of humanity, no straight thing was ever made"--and perhaps also to Isaiah Berlin, the great liberal philosopher, who famously referred to it, and whom I count among my intellectual heroes. Berlin's hallmarks were open-mindedness, tolerance, civility and loathing of absolutism. Professor Farrell, I'd say you're flattering yourself just a little.
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CC - I commented on your previous post, and I hope that mine wasn't one of the emails you characterized as 'abusive'. I said that you were way off base, but I at least tried to keep a lid on the worst of my certitude. I agree with you that certitude and absolutism are the curse of politics and a civilized society, but I cannot tell you how strongly I feel about this issue. And lest you forget, it was unrepentant and unaware certitude which created the conditions of torture in the first place.
As to your points above, I'm done focusing on E. More schooled legal minds than mine will have to make that determination. I know that waterboarding (which I will hereafter refer to as torture) is against the law in the country that I thought I lived in, but perhaps I was tragically mistaken about the strength and character of US law.
My focus is on A, B, and G, particularly A. The meme that torture, however abhorrent, can be effective for intelligence gathering is something that has been propounded by the torture apologists, and it's quite convenient because it's impossible to fully disprove. How do you disprove something that contains the word 'possibly'? The answer: By pointing out that the very concept of torture 'working' is hopelessly reductionist and simplistic. It assumes a Jack-Bauer-Scenario, we-just-need-one-critical-fact-to-prevent-the nuclear-attack approach to interrogation, which doesn't accurately describe the process at all. One of the most important aspects of interrogation is sorting out the truth from the lies, and this is what torture makes impossible. The utter and absolute coercion entailed in torture changes the game, from a subject trying to conceal the truth and the interrogator trying to extract it, to a subject trying to anticipate the desires of the interrogator in order to make the torture end. That's how we get Abu Zubaydah telling us that Al Qaeda is connected to Sadaam Hussein when no connection existed: At some point he figured out that was what his torturers wanted to hear. (Please understand that I can't say FOR SURE this is what happened, but it is a likely scenario. That's why we need a full investigation.)
On to B: You're right, of course, but that's the understatement of all time. The propaganda value of this as a recruitment tool for terrorists is infinite. We could not have handed them a better pitch line.
And G: This is something that really sticks in my craw, because it's a meme that seems to dominate a lot of cable news as well, and not just as it relates to torture. What I'm talking about is the idea that arguing passionately for something, and getting angry about it, makes you right. Just because there's a group of people who are super-pissed-off that people want to prosecute/investigate torture, doesn't NECESSARILY mean they have a leg to stand on. Maybe they do, as I said, I'm done debating the legalities. But the simple fact of this issue's divisiveness is something created by the people who support this torture, and is no reason at all that they should get away with it, assuming that the law is on our side. And because, as you point out, the law may be unclear, I'm certainly not willing to cede the field to these maniacs without a full investigation.
Finally, I take issue with the idea that 'the public interest' may not be served by investigation/prosecution. That's an impossibly nebulous concept, of course, but I would argue that the US national security interest would be well served if we found some recognizable and deserving people to prosecute as examples. It's fine to say that we'll never do this again, but what does that mean to some Afghan farm kid who's considering a career in terrorism? Not nearly as much as seeing on TV as Bush, Cheney, et al are trotted out before, at least, an investigatory panel, and publicly shamed, if not imprisoned.
Extremely well-said, and tightly argued. Here's hoping Obama is able to stay true to his original, and clearly superior, position. Nothing will be gained by catering to the hedonists crying for blood, and much is sure to be lost.
I respect a political decision for the executive branch not to prosecute. There are very grave risks to our country's civic discourse if a prosecution of this sort happens. On the other hand, I would think a congressional hearing where these authors of torture policy are granted immunity so as to compel testimony would serve us well. There are today American soldiers in jail for abuses that, from all appearances, directed from the very highest offices officially sanctioned and promoted. At the very least, some elementary form of justice would be achieved by having the sponsors of the behavior forced to acknowledge accountability.
As to what would happen were a judicial process begun? I do not agree with Mr. Crook that an outcome of innocence would be even moderately certain. The defendant's justification for the torture, would, in the hands of a competent prosecutor, be explored fully. My hunch is that the type of arguments that President Obama raised would have at least an even chance as those arguments that one hears from Dick Cheney and Dick Cheney apologists. As for the technical point as to what is torture, my hunch is that a jury of peers would not buy into hair splitting that was so obviously contrived.
Lastly, there is no reason to suppose that the alleged miscreants (lawyers and Cheney) will not have warrants for human rights abuses issued from abroad. I would suppose that none of the named individuals would be compelled by US authority to "attend" but, on the other hand, their US passports would clearly have to be surrendered for the simple fear that, were they to travel abroad, their arrests could provoke a diplomatic crisis that this country would prefer to avoid. Both the warrants and the surrendering of passports would serve as a proxy for the judgments that are otherwise unobtainable, namely, that each of these individuals would know that they were international pariahs.
I imagine this has already been said but I will say it again -
Tortured Logic
Some things in life ARE absolute. The USA does not torture and torture is a crime.
Clive,
Congress has defined the law against water boarding well enough for it to have resulted in the prosecutions of Texas Sheriffs and Deputies for using it to force confessions.
In US v Lee, 744 F.2d 1124 (5th Cir., 1984), the Federal Appellate Court upheld their convictions in the Federal District Court For The Southern District of Texas.
The Fifth Circuit Court of Appeals said:
(US v Lee, above). The convictions of all of the law enforcement officers were upheld and affirmed.This case would be easy for any of those lawyers and law professors to find. The law on water torture is very clear.
In fact the penalty for it is death if it causes the death of the person being tortured.
Dredd has it. This was not a case where lawyers "manoeuvred absurdly and offensively, perhaps," it was legal malpractice. They did not try to argue that the torture as carried out or the victims of torture were different in previous cases; they simply failed to cite the precedent at all!
That is why we executed the Jay Bybees of Nazi Germany. They didn't engage in an "absurd and offensive" practice of law, they abandoned the practice of law in order to give cover to the torture that they knew their superiors wanted to carry out.
No one is arguing that water-boarding is illegal form of interrogation on US citizens.
I admit to being of the political persuasion that would love to hear those cherished words one more time: 'What did the President know and when did he know it?' But I acknowledge that the impeachment of two consecutive presidents would be bad for democracy, first. And second that your analysis of the uncertainty of prosecutions is a good point. You buttress the argument that 'Special Prosecutors' don't usually spread lots of visible light on an outrage--reasonably preferring to build a case in quiet.
For all these reasons a thorough airing and viewing by a special commission or a congressional committee, if done completely and aggressively with supoenas flying in a blizzard, would be the best we can hope for. It should also be the least we should settle for.
I sent this via email to Andrew Sullivan, am cross-posting it here:
You think Clive's argument is beside the point because you missed his main point. You think it was this:
(Andrew) "The premise of Clive's argument, in other words, is that it's perfectly legitimate for a president to treat the law as something to be defined away rather than followed."
But it wasn't. His main point was this:
(Clive) "If prosecutions were brought, could one count on getting convictions? Because of the deliberate imprecision of current law, the defence has a case to make, and a jury, reminded of what was at stake in the aftermath of 9/11, might be inclined to listen to it sympathetically. So one at least needs to ask, what would be gained by prosecuting these crimes and seeing the defendants acquitted? Surely this would undermine rather than affirm a US commitment never to use these methods...
"As this leader in the FT notes, what matters most here is not to put George W. Bush and his team in jail, or to try them and then pardon them. It is to guard against such measures being used again. That is a political as much as a legal project--it requires the building of a moral consensus, the changing of many American hearts of minds--and in my view it is best advanced not by prosecutions but by the "look forward" approach Obama first said he wanted to follow."
In other words, you seem to think that Clive's exposition of existing torture laws is an attempt to outline a legal argument he personally believes in. I don't read his posts that way. Rather, I think he's offering up a version of the argument Yoo or Bybee's defense team might make, and then is saying, "These laws are vague enough that this argument might sway some people. Consequently, pursuing prosecutions could have unintended, negative consequences. It's best to move forward."
This resonates with me. I think people in our country (and around the world) are quickly migrating to the view that the Bush administration was an anomoly and is not representative of American ideals or values. A jury conviction of Yoo for war crimes would help reinforce that viewpoint, but a jury acquittal would upend it completely. The bitter irony of the Bush administration is that his take-the-gloves-off approach to ensuring the safety of the American people had the effect of making us significantly less safe. How much more bitter would the irony be if prosecutions we pursued for his administration's torture crimes had the effect of undermining the very laws they had broken?
Rather than pushing for prosecutions right now, I think we should be pushing for transparency and light. Make FOIA requests, hold Congressional hearings, have a public debate. Let's continue to argue this out in the court of public opinion. When it comes to prosecutions, what's the rush?
Split hairs about the illegality of waterboarding, if you will, Mr. Crook.
Let's confine our discussion of prosecutions to a simpler question. If Tony Soprano orders two of his henchmen to rough up a guy who doesn't pay his gambling debts, and said henchman, in their enthusiasm, kill the victim, Tony can be prosecuted for the homicide. Nothing arcane about the legal theory here, is there? If you order people in your employment to commit a crime--assault--and this leads to death, you are as responsible for the death as if you carried it out with your own hands.
We know from military lawyers that more than 100 prisoners of our wars in Iraq and Afghanistan have died while in our control, and 27 have been ruled homicides. If it can be shown that any of those homicides occurred as a result of physical assault, anyone ordering that assault can be prosecuted, possibly for murder.
This isn't a question of whether such a prosecution would be "divisive." It is a question of what it means to "faithfully execute" one's office. It is a question of what it means to "preserve, protect, and defend the Constitution." Even when it's a pain to do so.
If Mr Crook wishes to criticise how others interpret his views, he should himself be more careful in summarising them. He claims in his second column that he wrote in the first one that waterboarding was torture in the ordinary meaning of the word. What he in fact wrote was that common sense may tell one that it is torture. This ambiguous or ambivalent thought was not even granted the dignity of a complete sentence. Admiring Berlin's hallmarks of open-mindedness, tolerance etc should also deter a columnist from claiming that those of the Democratic left in favour of prosecutions are 'plainly' motivated by desire for revenge. I suspect Berlin would not have made such an allegation, nor would he have divided critics into the more and the less honest.
First, I agree that point (e) is a critical one in that it arguably distinguishes the arguments you made in your article from the torture apologias which are popular today. Nevertheless, I could not help noticing that the gist of your rebuttal to Henry Farrell in connection with waterboarding is that the way in which this torture was carried out was (or may have been) actually legal. This is a remarkable claim and I believe you should provide some authority in support of your claim that it is possible carry out waterboarding legally. I am unaware of any such authority apart from that which was created by torture apologists after it became clear that George Bush wanted to torture captives.
If, as you claim, you have done research on this issue then you must know that prior to the issuance of the “torture memos” there were neither judicial decisions nor scholarly treatises which even remotely supported the claims made by the Bush administration. None. A fact which perhaps accounts for the paucity of citations in those memos to pertinent case law or scholarly writings. I am in agreement with Mr. Wallach that the law on water-boarding is and has always been perfectly clear. Congress does not need to pass new laws to outlaw waterboarding any more than it needs to pass new laws to outlaw bank robbery.
Second, unlike you, I am a lawyer and I do have a pretty good idea whether the the CAT requires the US government to prosecute its nationals who commit torture. It clearly does. To say that some law is “arguably” unenforceable or that some particular defense “arguably” exists is not the same as proving that it would be improper to bring a criminal prosecution. All laws are arguably vague. The case against any accused is arguably defective. Arguably my uncle is my aunt. If I’d used your reasoning when I was a criminal prosecutor I would never have been able to indict anybody.
It seems to me that you made specific factual claims and you owe it to your readers to provide the authority which you believe supports your position.
Clive,
You say, "...what matters most here...is to guard against such measures being used again. That is a political as much as a legal project--it requires the building of a moral consensus..."
The moral consensus already exists; it is what lead to the signing of the Geneva Conventions and CAT. And the absolute requirement to investigate allegations of torture and prosecute, if "such measures" are deemed to be torture, is the guard against torture being used. How ignoring current law can possibly help guard against torture being used is beyond my understanding.
The sophistry that permeates this article reminds me of the special pleadings of NAMBLA when they claim the jury is out on whether sodomizing middle schoolers really counts as pedophilia. Never mind the numerous laws against it. Never mind the numerous prosecutions of those who have done it. But then, Crook isn't the only one who thinks a factual matter is in dispute just because he says it is or believes it is. Flat earthers, creationists, holocaust deniers and 9-11 "truthers" show signs of exactly this kind of distemper.
German lawyers were prosecuted at Nuremberg for issuing letters telling lower-ranking officials that war crimes were not crimes at all. Mob lawyers get prosecuted for giving their clients advice on committing crimes and beating the rap. These DOJ officials have not only NOT given the torturers immunity, they have made themselves accomplices. The idea that a letter from a lawyer is some sort of Get Out Of Jail Free Card is a joke.
From the time of the sacking of Troy the West has struggled with the issues of torture. This will continue. If a future president was given the option of getting needed information with tactics that are psychologically torturous but physically harmless, would he or she exercise that option? My guess is if enough of the survival of the nation lay in the balance and the practice was known to work the answer would be, yes. And that would apply to the current president. Ultimately survival trumps all else. So where does that leave us?
If you cannot use techniques SOME believe is torture to extract information on a case by case basis, then why prosecute at all?
The lawyers were correct: It's a matter of intent. If one water boards for fun, it's torture. If a cop keeps a suspect in an interview room for 24 hours to break them down, is that not torture?
If we could have water boarded the 3 Somali pirates, instead of shooting them in the head, which would you prefer?
The lack of context around this issue illustrates the shallow attention and lack of national perspective that permeates far too many issues in this country.