When Barack Obama directed the release of George W. Bush administration documents describing the brutal interrogation of terrorist suspects and defending the legality of those methods, his aim was to draw a line under the issue. He was right to want to, and the compromise he first proposed was a good one.
In releasing the memos the president in effect repudiated methods such as waterboarding, the slamming of prisoners against walls, confinement in boxes, and other practices. These techniques would not be used on Mr Obama's watch.
At the same time he promised that there would be no prosecutions of interrogators, so long as they had acted in good faith and under guidance that the methods were lawful. And he implied, at least, that the same would go for the lawyers and other officials who had designed the earlier policy.
This would not do, however, for many in Mr Obama's party. They accused him of being too timid. Immediately, the president began to vacillate. He allowed for the possibility of some prosecutions, and mused on the proper form of further investigations - not, his spokesman explained, that he was necessarily in favour of such investigations.
Mr Obama's position is still in flux. The only certainties are that the approach he seems to have had in mind is dead, the issue is violently inflamed, and the US is now preoccupied - when it can ill afford to be - with a bitterly divisive and self-destructive quarrel.
Mr Obama got it right first time. Bringing prosecutions would be a mistake. To see why, it is necessary to separate two questions that are routinely muddled together: whether methods such as waterboarding are ever justified, and whether they are legal. The answer to neither question is self-evident, but the key thing is that they are different questions.
To many critics of the Bush administration, it is all so simple: waterboarding is torture, and thus both impossible to justify and illegal. Some prop up their certainty by denying that waterboarding can ever succeed in extracting vital information. If that were true, of course, the dilemma at the centre of this controversy would evaporate. The dilemma is real, in my view, precisely because torture might sometimes work. CIA officers and senior intelligence officials have said that "harsh interrogation" did yield important information.
The Bush administration's more honest critics accept that possibility, but argue that it does not justify these brutal methods. They are right. The damage that practices such as waterboarding do to US standing in the world, their power as a recruiting aid for terrorists, and - to my mind, most important of all - the harm they do to the country's idea of itself as a force for good outweigh any plausible benefits. Methods that shame the nation are both wrong and counter-productive even if they can claim a measure of success in the narrower sense.
But this already far from simple issue gets even more complicated when you turn from the question of justification to the law. Many just take it for granted that waterboarding is torture, and hence illegal. The convoluted legal defences in the memos are so false, in their view, that they compound the crime. The bizarre care the memos prescribe to guard against lasting physical harm to suspects, for instance, is dismissed as a sham that only makes the enterprise more disgusting.
Not so fast. Common sense may tell you waterboarding is torture, but the law is less clear-cut. Congress should make waterboarding a crime, for the reasons I have stated, and it has had many chances before and since 9/11 to do so. The fact is, it has chosen not to. Some of those in Congress now calling for prosecutions, including Nancy Pelosi, speaker of the House, were briefed about these methods in the panic-stricken aftermath of 9/11 and offered no objection.
It is worth noting that the methods in question were adopted from the training US soldiers undergo to resist interrogation. This underlines the fact that using these methods lowers the US to the level of its enemies. But it also suggests that distinctions may be made between waterboarding and, say, breaking on the rack. Unsurprisingly, US soldiers are not subjected to that technique as part of their training. Journalists and YouTube video-makers have undergone waterboarding, the better to pronounce it torture. None that I know of has volunteered to be flayed, or have his fingers crushed.
So far as moral and tactical justification goes, this can be set aside. Waterboarding is shameful, and one may leave it at that. To repeat, Mr Obama was right to forswear its use and that of other brutal measures. But the law does not set these points aside. If the lawyers who worked on the memos can show a court that they worked in good faith, under extreme pressure, to design methods that fell short of torture - in its legal, not commonsense, meaning - they would be innocent of knowingly shielding illegality. They have a strong case.
What would acquittals mean for US standing in the world? Those calling for prosecutions do not appear to have considered this possibility. They ought to.
And that is by no means the only risk. The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice - and Mr Obama is wavering in the face of their rage. Already, little hope remains of a bipartisan approach to the myriad problems that confront his administration. If the president fails to get a grip on this new controversy, the prospect of any such co-operation will be nil.
« Treat terrorism as an ordinary crime | Main | More on torture prosecutions » Torture prosecutions28 Apr 2009 04:43 pm
My new column for the FT discusses this issue. I already have an inbox full of emails calling me reprehensible and a torturer. Read the column for an insight into the mind of a monster, and I'll address some of the arguments (many fewer in number than the insults, but there are some) offered against what I say tomorrow.
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Well said. I think the notion of restorative justice (emphasizing justice in the form of societal healing rather than retributive justice, a strict legal perspective focusing on prosecuting and punishing wrongdoing) can be helpful here. Initially, we saw Obama looking forward, seeking to put this chapter behind us and not widen the partisan divide any more than it is. As Clive notes, "The drive for prosecutions is a furiously partisan project," and should any of these cases actually see a trial, the bitterness and rancor on both sides will explode. Although the analogies aren't perfect and there are cases where prosecutions are appropriate, examples such as South Africa show that prioritizing reconciliation over revenge can provide long-term benefits on a societal level. The issue is not whether apartheid was wrong (it was) or the torturing of terror suspects is reprehensible (it is). The issue is what is best for the country moving forward, and in this case, prosecutions will do little good.
The US killed and imprisoned Japanese soldiers who water-boarded Americans. I thought that the US legal system was based on common law which includes case law? I am not saying that we should treat Americans as we treat Japanese. In other words - I am not suggesting that we kill Bush and some US soldiers. But a simple inquiry into the matter? I have to admit that I agree with many commenters here on the Atlantic. I was initially against any prosecutions - I just wanted for torture to be reversed as official US policy coming from the top. But after having read and heard so many defend torture...
I agree with Daniel Larison.
Right now I am more scared of some of my fellow citizens than I am of some long bearded guy in a mountain cave.
I don't think you give the ideology of torture opponents, or their arguments, a fair shake in your column.
Sen. Sheldon Whitehouse explained why waterboaring has long been treated by the US as torture, and pointed out that "the OLC, the elite legal conscience of DOJ, completely missed a U.S. court of appeals case on point, a case in which DOJ itself had brought the charges, and a case whose prosecuting assistant U.S. attorney is still in the department," in "part of a disquieting pattern" at OLC. He concludes that "the failure of scholarship in the OLC's analysis of torture suggests that the answer was preordained. By whom, one wonders." Marty Lederman criticized the legal content of the torture memos. Even Ramesh Ponnuru can't see why investigations into alleged crimes should be considered off the table.
Intelligent critics on the right like Daniel Larison have decried the GOP for its deep commitment to defending torture. Lifelong (til around 06) Republican John Cole has pointed out that most who oppose torture favor prosecutions without regard for whether "the person has a ( R ) or (D) behind their name when they were instituting a policy of torture."
42% of the country favors prosecutions. That is very close to the number that favor decriminalization of marijuana. I bring up that issue because in your pro-decriminalization article, you showed that you are capable of grappling with facts and arguments, and coming to a politically incorrect opinion. Your argument deserved a substantive response, not an assertion that you merely favor "vengeance." Unfortunately, a substance-free attack on motivations of straw men is the exact style of argumentation you use in this column.
Four to five years ago, Pres. Bush promised prosecutions, and the Weekly Standard argued that "Anyone up or down the chain of command who was criminally complicit should be prosecuted". Why should that view be dismissed as politically incorrect today, simply because it is less convenient? Why should lawbreaking elites get off scot free while Lynndie England goes to jail? Please make your case.
(duplicate comment, shorn of substantiation by linkage):
I don't think you give the ideology of torture opponents, or their arguments, a fair shake in your column.
Sen. Sheldon Whitehouse explained why waterboaring has long been treated by the US as torture, and pointed out that "the OLC, the elite legal conscience of DOJ, completely missed a U.S. court of appeals case on point, a case in which DOJ itself had brought the charges, and a case whose prosecuting assistant U.S. attorney is still in the department," in "part of a disquieting pattern" at OLC. He concludes that "the failure of scholarship in the OLC's analysis of torture suggests that the answer was preordained. By whom, one wonders." Marty Lederman criticized the legal content of the torture memos. Even Ramesh Ponnuru can't see why investigations into alleged crimes should be considered off the table.
Intelligent critics on the right like Daniel Larison have decried the GOP for its deep commitment to defending torture. Lifelong (til around 06) Republican John Cole has pointed out that most who oppose torture favor prosecutions without regard for whether "the person has a ( R ) or (D) behind their name when they were instituting a policy of torture."
42% of the country favors prosecutions. That is very close to the number that favor decriminalization of marijuana. I bring up that issue because in your pro-decriminalization article, you showed that you are capable of grappling with facts and arguments, and coming to a politically incorrect opinion. Your argument deserved a substantive response, not an assertion that you merely favor "vengeance." Unfortunately, a substance-free attack on motivations of straw men is the exact style of argumentation you use in this column.
Four to five years ago, Pres. Bush promised prosecutions, and the Weekly Standard argued that "Anyone up or down the chain of command who was criminally complicit should be prosecuted". Why should that view be dismissed as politically incorrect today, simply because it is less convenient? Why should lawbreaking elites get off scot free while Lynndie England goes to jail? Please make your case.
With all due respect, Mr. Crook, I call hogwash on your argument.
So, because, once in a while, it might just work, we should institutionalize torture for procuring information?
For every time it works, how many wild goose chases will we be sent upon? Certainly history teaches us that, despite great care in limiting its use, torture ends up spreading like a virus through a detainment system (see, Abu Ghraib, Bagram, Guantanamo). Finally, it costs us dearly in the battle of hearts and minds, where the terrorists are most likely to be definitively beaten.
Sorry. I'm not buying.
CC - You're not just wrong, you're dangerously off-base, and the narrative you construct in the above is a false and fantastical representation of what torture is and how it was practiced in this country. I'll make a few points below, but first of all, I'm not some leftist. I'm an American, and I am incensed by the fact that torture was committed in my name, and I'm not simply willing to shrug it off. I want people held accountable, up to and including the President and Vice-President. I'm not arguing for prosecutions at this point, however, because first we need a Truth Commission to find out exactly what happened. Then we can move to prosecutions. Now, as to your above argumentation:
1) "...it is necessary to separate two questions that are routinely muddled together: whether methods such as waterboarding are ever justified, and whether they are legal." - Absolutely right it is necessary to separate these two questions, but not for the reasons you go on to explain. It's important to separate them because the former is an interesting question for moral philosophers, and the second is a question created after the fact by people seeking to justify the torture they already committed. In the 20th Century, there was no question that waterboarding was torture and illegal (see more below). It is only now that there is a 'question' about whether waterboarding is legal, as torture apologists claim that it is legal after they've already done it. This isn't the way our system works, you don't get to do something first, and then claim after the fact that it's legal and expect a fair debate on the issue.
2) "Some prop up their certainty (that waterboarding is torture and illegal) by denying that waterboarding can ever succeed in extracting vital information. If that were true, of course, the dilemma at the centre of this controversy would evaporate. The dilemma is real, in my view, precisely because torture might sometimes work. CIA officers and senior intelligence officials have said that "harsh interrogation" did yield important information." - Two points here...To start at the end, the word of senior intelligence officials and CIA officers defending this practice should not be taken as true. First I heard from this crew that we hadn't done anything, then I heard that we only waterboarded KSM for 30 seconds before he started talking, and now I find out from the documents that we waterboarded him 180 times in one month. These people are liars. That's why we have to have an investigation, because they can't be trusted. Second point, what do you even mean by waterboarding 'working'? OF COURSE torture like this makes people tell you things, but it provides all sorts of false information. Given the spectacular intelligence failures of the previous administration, it's fair to suppose that they got a whole lot of terrible information by torturing (waterboarding) people. Again, this is difficult to quantify without a full investigation.
3) "Common sense may tell you waterboarding is torture, but the law is less clear-cut." - Really? My amateur reading about the history of torture prosecutions in the US has revealed that we have consistently treated waterboarding, and the other techniques authorized by the Bush administration, as torture. Particularly important here are the Nuremburg trials, and the trials of Japanese soldiers, also after WWII. Can you name a single legal precedent, not created by the Bush administration, which says waterboarding is not torture? Because if you can't, that's a hell of a statement to make.
4) "Some of those in Congress now calling for prosecutions, including Nancy Pelosi, speaker of the House, were briefed about these methods in the panic-stricken aftermath of 9/11 and offered no objection." - That's right. This is not a partisan issue. If Nancy Pelosi or Harry Reid or anyone else knew about this torture and approved, they should be investigated/prosecuted as well. Remember, I'm not a lefty partisan, I'm an American.
5) "It is worth noting that the methods in question were adopted from the training US soldiers undergo to resist interrogation." - Wrong. Flat out wrong. The SERE program (which I assume you're referring to) is designed to train US soldiers to resist TORTURE. That's the explicit, stated purpose of the program, and the techniques used on our soldiers as part of the program are cribbed from totalitarian regimes. And, the people who designed and execute the SERE program warned the administration that any attempt to use the SERE techniques would be illegal.
6) "Journalists and YouTube video-makers have undergone waterboarding, the better to pronounce it torture. None that I know of has volunteered to be flayed, or have his fingers crushed." - What? Why would journalists undergo things that weren't even in the realm of US policy? What does this even mean?
7) "What would acquittals mean for US standing in the world? Those calling for prosecutions do not appear to have considered this possibility. They ought to." - I have considered that possibility, but it's a risk that must be run. The photos are already out there. The propaganda is already available to our enemies. Refusing to account for it can't make it that much worse, but doing such an accounting could have a large benefit. Plus, after all your talk about adhering to the law, are you now arguing that we should decide whether or not to investigate/prosecute torture based on PR value?
8) "Already, little hope remains of a bipartisan approach to the myriad problems that confront his administration." - Yeah, that's true. The bi-partisan approach was killed when the GOP played politics with volcano monitoring, played politics with Pandemic preparation, played politics with the stimulus package, filibustered pro-choice cabinet nominees as a naked payment to the far-right, etc, etc, etc. I'm not willing to ignore their position on torture to try to recapture 'bi-partisanship', when it's clear that the GOP has no intention of allowing that to happen anyway.
I'm looking forward to reading your response. Good luck.
Extremely well said across the board--the difference between justification and legality, and the pragmatic ramifications. Thanks.