Consequences (Updated)

Much has been made of the failure of the Senate Intelligence Committee’s report on torture to include any recommendations. One possibility is that as its critics have charged the report is solely a partisan exercise. I don’t think that’s the case. There is plenty of daylight between “partisan exercise” and “solely a partisan exercise”.

The report is clearly a partisan exercise. Considering its source it could hardly be anything else. However, I think it does contain a kernel of truth and we should heed that.

Shouldn’t there be consequences for crimes on the scale being alleged? IMO the most likely explanations are that the critics are right or social. It would make for pretty uncomfortable cocktail parties and PTA meetings when you’ve put the family members and friends of your neighbors and people you socialize in jail.

Pat Lang has six recommendations. I’ll quote the first three here:

– Brennan has made himself an accomplice in what amounts to a criminal conspiracy to violate federal law. He should be fired and should be prosecuted for that crime.

– The Obama Justice Department should reverse its stated position and re-open investigations that may lead to the indictment of Cheney, Rumsfeld, Rodriguez, and all those who participated in this criminal violation of US and international law. For the president and Holder to fail to do this would make them be in violation of their oaths of office. They swore to see that the law of the US would be upheld and enforced.

– All interested readers of SST should press their governments abroad to have their courts indict all those guilty of crimes against the Torture Convention in international law.

There are more.

Without excusing the torture, my greatest concern is the repeated lying under oath to Congress. It is impossible for Congress to exercise its oversight function when officials lie under oath systematically. In a civil system like ours that is rebellion against the civil authorities and it should be dealt with very seriously. Failing to do so makes the Congress complicit in the acts about which they’ve been lied to.

I might add that the very fact that the CIA officials felt that they need to lie suggests that they knew that what they were doing was wrong and illegal.


Something I’d intended to put out in the post was an idea that Pat Lang has promoted from time to time: officials who have clearly perjored themselves in testimony before Congress should be shunned. I’d go a step farther than that and suggest an administrative form of shunning: they should lose their security clearances.

13 comments… add one
  • PD Shaw Link

    I maintain that the “torture” laws are not practically enforceable, and were probably designed that way in instances where coercive interrogation techniques did not leave permanent physical injury. The connection here is with the recent grand jury rulings on killings by law enforcement. Interrogators are permitted by the law to inflict mental suffering, just not “severe” mental suffering, much as cops are permitted to use violence and even deadly force. The “torture” statute in requiring “specific intent” to violate the law.

    Putting these principles into a criminal justice which requires proof beyond a reasonable doubt, freedom from self-incrimination, etc., it is not surprising that the previous investigation found insufficient evidence to bring criminal charges, i.e. evidence that would be admissible in a court of law that addresses the elements that need to be proven.

    All of this within a background that public opinion polls show that Americans (around 70%) believe torture is sometimes justified. That is your jury pool, not the blogs one selectively reads.

    The best option for taking aggressive action is to avoid the American justice system altogether. The worst option might be failed convictions.

  • ... Link

    I’ve heard Rodriguez state the Feinstein & others had been informed exactly of what was going on. There are all kinds of reasons for the government not to push this. It may be that executive officials lied under oath but were telling Senators & Congressmen the truth off the record. In that case said legislators won’t really want prosecutions.

    The new update for autocorrect on my HTC Android sucks balls, btw. It’s got a weird stutter feature.

  • ... Link

    And other than the letters after the names of the US politicians involved, I don’t see how Clinton’s rendition program wasn’t at least as bad. Pretty sure the nations getting the rendered prisoners weren’t less gentle than the CIA.

  • CStanley Link

    I think what ice posited is likely true- that Congress was briefed and is complicit.

    I also think it is important to consider, if not this than what? If we are not collectively willing to accept risk of terrorist attacks, then none of the other methods of reducing risk are moral either (drone attacks, for instance.) And we are not collectively willing to accept that risk. It is similar to accepting that we can’t fix healthcare because no one is really willing to accept the trade offs that would be involved.

    I concede though that my view rests on a belief that these methods in some cases are effective. And personally I lean toward Dave’s view that it doesn’t matter because if it’s immoral than it should be off the table regardless of efficacy. But it’s not black and white to me because I don’t have any way of assessing the risk to benefit ratio (I think that the “enhanced interrogation” could plausibly lead to actionable intelligence if done in certain ways, but don’t know if that happens enough- and when no other options are available) to merit an ends-justifies-the-means defense.)

  • Guarneri Link

    Seems to me that if ice and PD are correct the senators have been similarly advised, and that takes away a lot of that daylight.

    I’d also just throw in that a) minimizing Brennan’s retention by Obama is just false partisan rationalization and b) I’ve seen serious commentary on drone useage, and contortionist arguments that it is not morally equivalent to torture are distinctions without a difference.

  • steve Link

    I think it is unlikely they told Congress all of the details. Pretty hard to believe it would stay quiet all of this time. Rodriguez is the guy who destroyed the tapes. I would say he has zero credibility.

    I think Lang’s last recommendation may also be necessary. Move CIA functions involving anything other than espionage to the military. Oversight is better and the military doesn’t usually want to engage in the kinds of interventions the CIA has made. There are too many instances where CIA interventions have had very negative consequences.


  • PD Shaw Link


    This sentence is confusing: “The “torture” statute in requiring “specific intent” to violate the law.”

    I meant the statute is unique in creating a “specific intent” crime; it will require evidence not only that the convict intended to perform the act, but also that he/she intended the precise harm that resulted from the act (severe mental anguish, not just regular mental anguish). This requires more evidence than a “general intent” crime.

    The importance of this element has been picked-up by Immigration lawyers from both administrations. People seeking asylum from being deported to a country where they will be incarcerated and probably raped or die in neglectful prison conditions have their request for asylum denied because the home country does not specifically intend rape, physical injury or death. The federal Courts of Appeal have accepted this very limiting understanding of the “torture” statute as a permissible one.

  • PD Shaw Link

    Deborah Pearlstein at Opinio Juris makes similar points. One one hand, she thinks high-level prosecutions are necessary for the proper incentives to avoid such practices in the future. On the other hand, “To an important extent, this is of course a question of law, and law imposes its own set of limitations on the possibilities.” She mentions the destruction of documents and the not unreasonable conclusion already made by the DOJ that there is insufficient evidence to prosecute here.

    Then I try to picture such a prosecution unfolding in the United States today. Or rather, in an American universe in which a future administration decided, or appointed a special prosecutor who decided, to move ahead with high level prosecutions (on a provable charge to which no statute of limitations applied). Could justice be done in such a case? Would justice be perceived to have been done? Which is better for the future maintenance of a prohibition against torture? No prosecution at all, or a case in which a former President is acquitted by a sympathetic jury, or in which a former President is convicted and whose conviction is overturned in a Bush v. Gore-like decision of the Supreme Court? In such conceivable eventualities, we have not only failed to reinforce the prohibition against torture, we may do profound damage to the perceived legitimacy of the rule of law system that remains.

    The bureaucracy that enabled the torture of so many human beings has done so much damage to the United States already. The challenge of what to do next is to me, a question of how not to make matters even worse.

  • My view of course (see post above) is that the actions were wrong so they shouldn’t have been done but, farther, that if acting wrongly fails to bring consequences future actors will be tempted to push the envelope even more.

    There are courses of action that aren’t open to us, for example exile which IMO would be very appropriate. Not only must we select actions that won’t do more harm than good but we must limit ourselves to those allowed under the law.

  • PD Shaw Link

    @Dave, I don’t think the fallout here is without consequences. I do think the CIA and the Senate will look at each other differently now. If the Senate doesn’t trust the CIA, maybe they can/should reassign tasks to DOD.

    I’ve mainly made a legal argument. Lang is on a Jacksonian rant, and has little time for DOJ lawyers that have analyzed particular words inserted into the text of a law, and scanned committee reports and held up definitions to court decisions made dozens of years ago. McCain is very similar — the meaning of laws are apparent; all the rest is dissembling and dishonor.

  • PD Shaw Link

    One issue here is institutional responsibility. The person that dunked the terrorist is unlikely to be the person that destroyed the documents is unlikely to be the person that wrote the legal opinion is unlikely to be the person that approved something in abstract, which all the others gave form to. And they may no longer be in the CIA. And if everybody is potentially guilty, they all take the Fifth.

  • ... Link

    Seriously, hasn’t talked of torture been out & about since 2004, or even earlier? I’m having trouble accepting Congress’s claims of ignorance of these matters.

  • Andy Link

    To start, I don’t think there will be any consequences for anyone involved in our torture because there is no political will to do so. Partisan interests will keep anything significant from happening, so the best we can probably hope for is public naming and shaming.

    To add to the wish list though is impeachment. Given the high bar for criminal prosecution, another alternative is to impeach the officials involved – at least those who are still in government.

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