The Torture Memos

I haven’t commented on the so-called “torture memos”, the exposure by the Obama Administration of documents from the Bush Administration that revealed that officials of the U. S. government had tortured Al Qaeda members under the assurance that what they were doing was legal, for a number of reasons. I find the subject extremely distasteful, I’ve already expressed myself on the subject of torture, and I’ve received a certain amount of harassment for my position.

There continue to be arguments through the blogosphere over what is or isn’t torture. Releasing a non-poisonous caterpillar into a prisoner’s cell is harassment but it isn’t torture. Waterboarding and prolonged sleep deprivation are torture.

My position is the same as it has been all along. I believe that torture is wrong and that it is never justified, whatever the circumstances. I support investigating the matter and, if enough evidence is found, prosecuting the perpetrators to the full extent of the law whoever they might be and whatever the political fallout is.

Unlike my friend Joe Gandelman, I’m not dismayed that members of the Bush Administration broke the law. Members of every administration break the law. Believing otherwise is simply to deny the manifest evidence. What dismays me is that these offenses were committed despite the fact that they were wrong.

The law is the minimum code of ethics not the maximum code of ethics. There are all sorts of things that we shouldn’t do because they are wrong, because they are dishonorable, whether they’re legal or illegal. Our system of government and our economic system require it. The amount of police power that we’d need in order to enforce the law in the absence of the barriers of conscience and honor is inconsistent with a free or prosperous society.

11 comments… add one
  • PD Shaw Link

    Having sped-read the first of the recent memos, I can hardly believe anybody can make a conclusion about whether this was torture given that the law authorizes the infliction of “pain and suffering,” but not “severe . . . pain and suffering.” What is severe? And why hasn’t the United States done what we’ve done 99% of the time when we found a law being applied not to our liking — we pass an amendment that tightens the existing prohibitions?

    Potter Stewart smirks.

  • Regardless of whether it was legally torture I think that it was morally torture. It reminds me of the debates on how much one has to eat before you break the Lenten fast. If you’re skating close enough that you need to ask the question, you’ve broken the fast.

  • PD Shaw Link

    Hobbes argued that “every crime is a sin, but not every sin a crime.” I think we have lost the ability to make that distinction, probably because we lack a shared religious vision any more. Without a shared religion, we lack the assurance of other forms of justice. We also lack public shame, so we are left only with the law, but we can’t make laws that contemplate every event.

  • I’m not sure I support prosecutions. That aside, hear hear.

  • PD Shaw Link

    michael, if people were tortured, international law would appear to obligate Obama to prosecute the torturers. Not that I am in good position to argue fealty to the full letter of internationa law.

  • I think there are several possible explanations for the Obama Administation’s actions in this regard, i.e. both releasing the memos and announcing that they wouldn’t prosecute the CIA cats who were responsible.

    They might not be prosecuting because there is no crime, as suggested by PD above. In that case releasing the memos is purely a political act—welcome to the continuous campaign!

    They might not be prosecuting because prosecuting would impede future ability to act—a pretty cynical course of action but pretty much par for the course at the presidential level.

    They might not be prosecuting as an act of mercy, believing that the CIA folks involved acted in good faith. IMO that would be benign but arbitrary. I’d prefer prosecuting and, if they’re found guilty, pardoning them which would take considerable political courage but would further the cause of justice.

    I don’t find any of those explanations particularly complimentary.

  • I think with Obama you should always look first to pragmatism.

    Prosecuting would be polarizing and advance no part of his agenda.

  • PD Shaw Link

    “They might not be prosecuting because there is no crime, as suggested by PD above.”

    I’ll add a couple of variations. When the torture ban was signed by Reagan in ’88 and ratified by the Senate in ’90, there was Congressional testimony from administration supporters that reassured sceptics that coercive interrogation techniques would not be limited by the ban and any broad reading of the language would render the statute void for vagueness. In short, the law may have been violated, but if so the law might be unconstitutional.

    The other variation is that the law may not be prosecutable. No jury might be willing to convict. Illinois state police training includes being tasered and maced, so that troopers can testify that the pain is not so bad. Generally, you don’t get many convictions against people trying to do their jobs to protect Americans where the victims are not particularly sympathetic. Does KSM get called a witness?

  • PD Shaw Link

    “Prosecuting would be polarizing and advance no part of his agenda.”

    I agree.

  • Tom Strong Link

    The CIA chaps who did it were following orders. It is fair to say that they should not have followed orders out of moral outrage, but nonetheless they do not bear the ultimate responsibility here. It would be extremely polarizing to prosecute the people who are responsible, and probably fruitless in the end.

    As for the memos themselves, there is a useful term that can describe the thought process behind them. That term is “weaseling.” They knew what they were rationalizing, they knew it was wrong, but they wanted to avoid responsibility no matter what.

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