A lot of the early analysis of the Obama administration’s decision not to prosecute underlings involved in torture has focused on the Nuremberg Trials’ insistence that ‘just following orders’ is not a defense. But that’s not really what we’re dealing with here. We know that the torture program was laid before the Justice Department, tinkered with somewhat, and then deemed legal provided that all caveats and precautions were met. This provided the cover of acting under public authority. And the only real question under domestic law is if the people acting under that authority had a reasonable belief that their actions were indeed legal. It would not be reasonable, for example, to rely on legal advice that said it would be okay to saw off limbs or immerse subjects in vats of acid. The Justice Department’s legal reasoning may have been easily questioned by someone with training in Constitutional and International law, but it was specifically designed to look like a well-sourced legal assessment to the layman’s eye.
The choke-point and real failure here was the Justice Department’s Office of Legal Counsel (OLC), which completely fell down on the job. They provided the cover of public authority when they had no right to do so. That is why many people believe that OLC members are among the most guilty and most culpable in the process that led to our national disgrace. This is indubitably true, but it should not be the end of the story. The Bybee and Bradbury memos reveal that high level CIA officers misrepresented who the detainees were (in terms of their importance and likely level of operational knowledge) and the type and value of the information that had already been obtained using both coercive and non-coercive techniques. In other words, the lawyers in OLC were led to believe they were authorizing torture on the highest level associates of Usama bin-Laden (when, in all but one case, they were not) and they were led to believe that these techniques had already paid dividends and that other techniques had failed. Tremendous pressure was exerted on OLC lawyers from CIA management to come up with some legal rationale to give them legal cover for what they were already doing.
And I think we would find, if we ever put all these people under oath, that the real pressure was not coming from CIA, but from Bush and Cheney and Rumsfeld, and their assistants, who wanted to ‘take the gloves off.’ The CIA, I believe, was under tremendous pressure to torture these detainees and they therefore made misrepresentations to the OLC in a successful effort to get legal cover for what they felt they needed to do.
Assuming these basic outlines are correct, it seems that there was a systemic failure at the top that included the orders from Bush, Cheney, Rumsfeld, and their assistants, bled over to the CIA’s upper management, and culminated with compliance from the OLC. Once that circle of evil was completed, the underlings were put an ambiguous position. Unless they happened to moonlight as Constitutional Law students, they had a pretty reasonable expectation that their actions were legal. They might still be guilty of war crimes under international law, but they have a pretty solid case against prosecution under domestic statutes.
Establishing which methods were reasonably accepted and which were not isn’t that easy. It probably comes down to determining which acts ‘shock the contemporary conscience’. Waterboarding qualifies. Locking someone with an insect phobia in a box, and telling them you’ve introduced stinging insects into the box, probably qualifies. After that, you begin to get into subjective areas. Slapping? Stress positions? Sleep deprivation? It’s hard to say that what offends me and strikes me as obviously reprehensible and shocking is going to be shocking to the majority of my countrymen. Could someone reasonably believe it was legal to slam someone into walls or make them stand naked for days in their own stool?
For the Obama administration, their choice was difficult. Reserving the right to prosecute people that did not follow the OLC caveats and safeguards, they decided not to prosecute anyone that did follow them. I think this is a little too simplified because I don’t think waterboarding, for example, could be reasonably considered as legal no matter what the OLC said. But I understand that they don’t want to get into nitpicking who was involved in what procedure, and all that. Yet, having basically absolved the people who actually carried out the torture, the Obama administration is under that much more obligation to hold the top echelon to account. That means that Bush, Cheney, Rumsfeld, their top assistants, the CIA’s top management, and the OLC lawyers all should be investigated by grand juries.
I think that is the only valid moral conclusion we can come to. And the international aspects of this are not going to go away unless we follow through.
Gideon addresses these same issues here.
Anonymous Liberal has been writing about this lately and yesterday wrote a really good piece on why, in the long run, it’s best to not go after the low-level folks “following orders” with their OLC get-out-of-jail-free memos. Because many would be acquitted in a jury trial and these cases will be used in the propaganda echo chamber to vindicate the practice of torture. Go after the decision makers and (most importantly) the lawyers who wrote these legal opinions that justified the illegal acts.
One of the root problems as Yglesias pointed out is that enough people agree with the major political party in this country that advocates torture of non-whites. This is when our lack of submission to an international court comes back to bite us.
Many of our own people are cruel or foolish or scared enough to approve of torture.
Holder has already vindicated torture.
I’m sorry, but if McCain had won and his attorney-general had issued the same opinion as Holder, everyone here would be screaming bloody murder.
Torture is wrong. Regardless if your political party supports it or not. That is a true “inconvenient truth”.
Don’t be so harsh!!! You want the USA to become a barbarian country like mine, that is judging and putting behind bars E-V-E-R-Y S-I-N-G-L-E O-N-E of those that had ANY participation either in torture , disappearance or execution. And I mean, from General to the bottom of the ranks, Judges and lawyers, priests, civilians.
What kind of signal would this country send??? Of course neither Bush or Cheney nor Rumsfeld for that matter will ever go to prison. And those idiots that broke the law and tortured…. of course we should not even bother in prosecuting them. At the end of the day, they should all go free. That is the best way that we assure these things will never happen again!!!
Just imagine the discredit this country would suffer if it begins to act like those little third world countries.
Sorry, but I don’t buy it: Torture is illegal and anyone that broke those laws should be punished!!! And remember that ignorance of the law is no justification. Either this is a country of laws or it is not.
Are you from Chile? Yes, I agree with you. You misread my post or I misread yours.
No, I am from Argentina.
And I was being sarcastic when I replied your post :0)
I think that all those involved should be tried and put in jail for the rest of their lives. Otherwise it will happen again.
Ah Yes, I wondered about Argentina, too. And I did consider it might be sarcasm, but I wasn’t sure.
My doctor is from Argentina. A lovely country, he tells me.
A lot of mystery still remains about what and who led the OLC down the path of preparing the infamous memos. And I think this might be one of the stronger arguments for an investigation (as if we need any more).
As revolting as has been to see how little regard the lawyers had for their ethical duties, it doesn’t seem likely that they came up with ideas themselves. Someone pressured or encouraged them, but who?
One common refrain to a lot of scandals, it seems, is how the lines of responsibility are blurred. While I am not frothing at the mouth to see prosecutions, I will be disappointed if, at the end of the day, we do not learn exactly who was to blame.
(My money is on Dick Cheney being the prime mover. Anyone want to place a bet with me?)
I won’t bet against you.
Khalid Sheikh Mohammed Was Waterboarded 183 Times in One Month
That exchange sends a chill down my spine.
The UN says not prosecuting the bastards who did this is in and of itself a war crime.
I don’t see how Obama has a choice now. If he does not prosecute, America’s reputation is done.
We will be lost as a country.
I just find comments like this to be incomprehensible. We didn’t prosecute Abu Graihb officials. We acquited Medina. We have never prosecuted anyone involved in School of the Americas, the Phoenix program, the Pinochet coup, the Argentine dirty war, the Contra war, the slaughters in Salvador ….
This is like someone in a sewer insisting that a fart is unacceptable.
Agreed. The caveat is the ‘good faith’ clause in Obama’s statement.
I would find it appaling to go after the Lynndie England-types while the people that provided the legal ‘justifications’ remain unprosecuted. At the very least, these scumbags should be impeached, disbarred and publically censured by their professional organizations. (ABA, etc)
They are cowards but also care more about their future legislation. And I am not unsympathetic to that.
But it all qualifies. Those are the same acts we ourselves have condemned as torture and the only reason for it not to shock our conscience is because we’re the ones doing them.
The CIA operatives were not laymen.
they weren’t lawyers, so they were laymen to matters of Constitutional Law.
Step back for a moment and consider how the OLC is supposed to work. If you have someone working switches for the NSA and they get an order to tap into every email in the San Francisco area, they might reasonably object that this violates their layman’s understanding of the 4th Amendment. What is supposed to happen at that point is that the NSA goes to the Justice Department and gets a ruling on whether their employee is correct. And if the OLC, which is the executive’s expert on FISA and the 4th amendment, says that this project is in compliance then the employee is supposed to be assured that he isn’t violating the Constitution or any laws.
We do not expect government employees to become experts on the law. And we do expect that they can rely on sound legal advice when they have concerns. What broke here was that the OLC gave horrible, incorrect advice, and that just isn’t supposed to happen.
When it does happen, we have to fall back on another standard. That standard is whether or not the employee should have known that the OLC advice was bad. And we can certainly imagine cases where that would be the case, such as unambiguous torture.
Some of these CIA folks should not be allowed to hide behind the OLC rulings, but many of them should be allowed to do so. You’d have to look at them on an individual basis and make some subjective judgments to determine which people belong in which categories. Unfortunately, it looks like investigations will very limited and only involve cases where people went beyond what the OLC blessed.
If they cannot recognize torture when they see it, they are not fit to be employed in these jobs.
Only lawyers can make moral judgments?
Booman, I just flinch when I see this sort of post. Sad. Just sad.
You’d almost think he said torture is ok and we should forego prosecuting the authors of these memos and the originators (Cheney et al).
Right.. what I was referring to. Wierdly phrased.
Do you have difficulty distinguishing between people who order torture and people who carry out those orders?
Let me try to say this again. I was actually defending what you said. But, you don’t need to me to do that so I’ll let you speak for yourself.
I, for one, have difficulty seeing the one who pulls the trigger, so to speak, as less culpable than the one who ordered the crime, especially when they are supposedly trained professionals.
I wonder if former Vice President Cheney’s stubborn assertion that the Iraqi Ba’ath were collaborating with Bin Laden is based on torture interrogations. Being a prodigious liar himself perhaps Cheney believes the only honest people are those who are undergoing torture. There never has been credible corraboration of Cheney’s claim, not even in millions of captured Ba’ath documents. Some in the security field believe that torture usually only results in the torturer being told what the tortured believe their tormenters want to hear.
Certainly the practice of torture has been a boon to extremist recruitment despite all efforts to keep it secret before Abu Ghraib leaked into the media. Remeber the Turkish-born German citizen who was apprehended on a bus in Macedonia and sent to Bagram airbase in Afghanistan to be tortured for three weeks? The US courts threw out his suit for compensation because the judges agreed with the government it would compromise national security. The US should have paid him anyway. Instead, he was brought back to the Balkans and pushed out of a car. I suppose there are those who would say he was only a Muslim and at least the US didn’t murder him He and many more people who know him in the Turkish community are more enemies we don’t need.
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(FAIR) – During the insurrection against the U.S. occupation of the Philippines (1899-1902), the U.S. military tortured suspected members of the Filipino resistance with a similar technique that they referred to as the “water cure.” A Washington Post (9/23/1902) news article on this practice, which referred to it as “the form of torture known as the water cure,” was typical of newspaper reporting of the time–which used the term “water cure” more or less interchangeably with the word “torture.” When a U.S. Army major was court-martialed and then found not guilty after being accused of administering the “water cure” to Filipinos, the Post reported on the verdict (6/7/1902) under the headline “Torture Is Upheld.” Similarly, a Chicago Daily Tribune headline (1/9/1903) referred to “torture orders” in an article about another army major accused of having authorized the use of the “water cure.” Newspaper reports about the use of the “water cure” by U.S. occupation forces in Haiti similarly identified it as “torture” (New York Times, 5/4/1907, 5/9/1921).
[Philipinos and White Supremacy – 1899]
Following World War II, when U.S. military tribunals tried Japanese military officials for war crimes for torturing prisoners of war, graphic accounts surfaced about the practice called “the water treatment,” which, as federal judge and laws of war scholar Evan Wallach observed (Columbia Journal of Transnational Law, 2007), “differ[ed] very little” from the “descriptions of waterboarding as it is currently applied.” One of the common practices of the Japanese military was described as follows in the Judgment of the International Military Tribunal for the Far East: “The victim was tied or held down on his back and cloth placed over his nose and mouth. Water was then poured on the cloth.”
This practice, first defined in the New York Times (7/27/42) as “forced drownings,” was referred to by the Washington Post (10/7/46) as “water torture” and by the New York Times (9/6/45) as “the Oriental `water torture.'” Other newspaper accounts (New York Times, 8/16/42, 8/31/42, 12/25/45, 7/26/47; Washington Post, 9/6/42; Chicago Tribune, 6/9/46) unequivocally defined the “water treatment” as a form of torture. Meanwhile, reports of the use of identical practices against American POWs in the Korean War were covered in the New York Times (8/9/53) as “stories of planned and deliberate torture.”
Over a decade later, “water torture” was mentioned in the headline of a Washington Post article (3/15/68) about the Australian army’s admission that a soldier had administered the “water treatment” to a Vietnamese woman suspected of being a guerilla. Six months later, the Post (8/12/68) published a front-page photographic expose of U.S. soldiers administering this same “water treatment” to a Vietnamese prisoner. A follow-up report in the Post (10/29/70) referred to this practice, which resulted in charges against the commander of the U.S. Army troops in South Vietnam, as “an ancient Oriental torture called `the water treatment.'”
Media reports commonly used the term “water torture” to describe the Cambodian Khmer Rouge’s practice of tying prisoners to a board and pouring water over their noses and mouths. In a feature article about the late Cambodian artist Vann Nath, who painted pictures of the Pol Pot regime’s various torture devices (including perhaps the clearest visual precursor of today’s “water board”), the L.A. Times (8/8/97) described the artist’s “contributions to history as a witness to the systematic torture and execution of Pol Pot’s victims. He painted images of acts he witnessed or heard described while in prison: electric shock treatment, water torture.” The San Diego Union-Tribune (12/16/89) also referred to the Khmer Rouge’s methods of interrogating through “water torture.”
In 1983, media reports on the trial of a Texas sheriff who had used a technique remarkably similar to today’s “waterboarding” also used the term “water torture” (UPI, 8/31/83, 9/1/83, 9/7/83). One article published in the New York Times (9/2/83) about the case began, “Two convicted burglars testified today that they had watched in fear as a former East Texas sheriff and his deputies used a water torture.” In another New York Times article (9/1/83), the news that “another former deputy testified that they had handcuffed prisoners to chairs, placed towels over their faces and poured water on the cloth until the prisoners gave what the officers considered confessions” was summarized with the headline: “Ex-Deputy Tells Jury of Jail Water Torture.”
DROP BY DROP:
FORGETTING THE HISTORY OF
WATER TORTURE IN U.S. COURTS (pdf)
"But I will not let myself be reduced to silence."“But I understand that they don’t want to get into nitpicking who was involved in what procedure, and all that.”
Justice-after all-can be so exhausting.
Something else-I wanted to add:
In so many ways, it’s not hard to believe that the same intelligence community that “fixed the intelligence” around the Iraq War, committed brutal acts of torture, as well.
The CIA lied-and their lies involved the US in what ultimately came to be recognized as a presidential “war of choice.”
The CIA-literally-played with the intelligence- until the intelligence reflected what the Bush White House was trying to accomplish.
The CIA had more loyalty to the current tenant in the White House, than they did to their country.
How many lives lost, and how many gallons of blood later-and it was all based on the lies of our intelligene community-constucted to please the current president.
The CIA betrayed their country, in my book. They should be “cut no slack of any kind.” With “friends/employees like this-who needs enemies?