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.
