A Controlled Acute Episode
I wish I had more time to write about the truly revolting Bush administration torture memos that were released today. They really need to be required reading for everyone. I think the line that probably sums them up best is on page 11 of the Bybee memo, where he casually observes that "[t]he waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering."
With that wonderful bit of "analysis," our government lawyers concluded that the most iconic example of torture in human history--a technique that dates back to the Spanish Inquisition, if not earlier--was not in fact torture. That's like writing a memo concluding that forced sexual intercourse doesn't constitute rape so long as you make it quick.
Indeed, the entire Bybee memo (which was likely written by John Yoo) is shockingly conclusory in its reasoning. One obvious torture technique after the next is quickly dismissed as not generating a sufficient level of suffering to constitute torture. But there's no attempt to back these conclusions up or explain away possible objections to them. No attempt to address the wide array of contrary precedent. And there's virtually no evidence that the author of the memo even spent much time imagining what it might actually be like to be subjected to some of these techniques.
As I've said many times here before, the most culpable parties in this whole disgusting affair are the lawyers. Their job was to stand up for the rule of law, to tell the Dick Cheneys of the world that what they wanted to do was clearly illegal. They didn't do that. Indeed, they went to elaborate lengths to give their legal blessing to conduct they had to have known was illegal.
I know many of you disagree with me on this, but I think Obama did the right thing by promising not to prosecute CIA officers who acted in accordance with the OLC's prior advice. Given the kind of things these folks are asked to do and the important missions entrusted to them, they have to be able to rely on the legal advice they're given by the government. If we start prosecuting people for conduct they were specifically advised was legal by the OLC, it will severely hamper our ability to conduct future intelligence work. No one will trust the advice they are given, they'll worry that the rug will be pulled out from under them at some point down the road. That's an untenable situation.
The people who should be punished are the people who gave the advice. The lawyers. The Jay Bybees, John Yoos, and David Addingtons of the world. Obama did the right thing by releasing these memos today. It is now up to us to make sure they generate the degree of outrage that they should.
With that wonderful bit of "analysis," our government lawyers concluded that the most iconic example of torture in human history--a technique that dates back to the Spanish Inquisition, if not earlier--was not in fact torture. That's like writing a memo concluding that forced sexual intercourse doesn't constitute rape so long as you make it quick.
Indeed, the entire Bybee memo (which was likely written by John Yoo) is shockingly conclusory in its reasoning. One obvious torture technique after the next is quickly dismissed as not generating a sufficient level of suffering to constitute torture. But there's no attempt to back these conclusions up or explain away possible objections to them. No attempt to address the wide array of contrary precedent. And there's virtually no evidence that the author of the memo even spent much time imagining what it might actually be like to be subjected to some of these techniques.
As I've said many times here before, the most culpable parties in this whole disgusting affair are the lawyers. Their job was to stand up for the rule of law, to tell the Dick Cheneys of the world that what they wanted to do was clearly illegal. They didn't do that. Indeed, they went to elaborate lengths to give their legal blessing to conduct they had to have known was illegal.
I know many of you disagree with me on this, but I think Obama did the right thing by promising not to prosecute CIA officers who acted in accordance with the OLC's prior advice. Given the kind of things these folks are asked to do and the important missions entrusted to them, they have to be able to rely on the legal advice they're given by the government. If we start prosecuting people for conduct they were specifically advised was legal by the OLC, it will severely hamper our ability to conduct future intelligence work. No one will trust the advice they are given, they'll worry that the rug will be pulled out from under them at some point down the road. That's an untenable situation.
The people who should be punished are the people who gave the advice. The lawyers. The Jay Bybees, John Yoos, and David Addingtons of the world. Obama did the right thing by releasing these memos today. It is now up to us to make sure they generate the degree of outrage that they should.
posted by A.L. at 5:03 PM
54 Comments:
Those poor CIA officers were just following orders, after all.
I think that was the rational of the Nurenberg trials, if you could find a lawyer to say it was ok then you're ass was covered. Oh, wait...
I imagine the cover was offered in order to slip out from the pressure the CIA was applying to Obama, trying to avoid the release of the memos at all.
Now that they're out, sufficient public outcry will perhaps force him to rescind that. Even if not, it may be that immunity will make the "small fish" CIA interrogators more likely to cooperate in catching the "big fish" - Yoo, Addington, etc.
I think that was the rational of the Nurenberg trials, if you could find a lawyer to say it was ok then you're ass was covered. Oh, wait...Everytime I express this opinion, people immediately cite Nuremberg, as if I'm completely unaware of that precedent. So let me say this yet again, while I do think there is a line beyond which the fact that you were ordered to do something becomes irrelevant (the Nazis crossed way over this line). But it's not clear to me that that line was crossed here. From a moral standpoint, the people who carried out these "enhanced techniques" are far less culpable than those who ordered them to do so or who gave them their legal blessing. I don't see how anyone can seriously question that. Moreover, it seems highly unlikely to me, from a legal standpoint, that an attempted prosecution of a CIA agent who acted in accordance with an official OLC opinion would have any prayer of succeeding. So not only would you be targetting the least culpable people in the chain, but you'd almost surely lose the prosecution.
The only people you could mount a serious case against are probably the lawyers. They're the ones who knew better.
One clarification, though. Anyone who went beyond the scope of the OLC memos in their interrogations should certainly be prosecuted. The legal lines in those memos (however twisted) are clear.
Apart from signing FDL's petition to appoint a special prosecutor, what do you propose we do? Congress could only hold hearings in the unlikely occurrence that enough of them remember that they have spines.
I agree that the people who authorized torture and the authors of the legal justifications should have a higher priority for prosecution.
But I don’t believe that those who carried out the actual torture should be given a free pass. It shouldn’t have taken a lawyer to recognize that the government was saying that it was legal to torture, which no government is authorized to say.
Perhaps the reason people keep bringing up Nuremberg is because it did (supposedly) set a precedent. Simply following orders is not an excuse for indefensible actions.
What kind of person tortures simply because someone else says it is ok? Sure we should go after the Cheneys and Yoos first. But those who tortured should at the very least be purged from the CIA.
The people who should be punished are the people who gave the advice. The lawyers. The Jay Bybees, John Yoos, and David Addingtons of the world.I don't see how you can do one and not the other. Refusing to prosecute those who relied on the opinions implies that it was reasonable for them to believe what they were doing was legal. If it was reasonable for them to believe it was legal when they could see the suffering they were inflicting in person, then why wouldn't it be reasonable for a lawyer to render such an opinion? It either shocks the conscience or it doesn't. It's either a war crime or a difference of opinion. It can't be one thing in one place and the other somewhere else.
I don't see how you can do one and not the other. Refusing to prosecute those who relied on the opinions implies that it was reasonable for them to believe what they were doing was legal. This is nonsense. Of course you can do one without the other. Just like you can prosecute Colonel Jessup for ordering the "code red" while acquitting privates Dawson and Downey. Was what they did to PFC Santiago morally repugnant? Yes. Shoud they be criminally prosecuted? Tough call. Would they be convicted? Never.
I'm not leaping to the defense of the CIA agents who carried out these orders. They'll have to live with what they did. But they were relying on very specific OLC advice and following orders. They would never get convicted in a million years and going after them would be highly counterproductive.
That's like writing a memo concluding that forced sexual intercourse doesn't constitute rape so long as you make it quick.Yes, I agree. And isn't your little memo above, A.L., equally absurd. You also appear to be saying that it isn't rape. But in your argument, it's not rape because your attorney advised you beforehand that rape wasn't a crime, or that what you were doing wasn't forced intercourse.
By your argument, all I need to do in order to commit a perfect crime is to find some hack lawyer who will tell me it's legal beforehand. If charged, I can present the judge with my attorney's letter, wherein I was told that rape is legal. The helpless judge will be powerless against my argument.
Of course, this will never happen. Because in reality, Obama is saying that there will be no investigation, let alone any judge. Those who actually committed the rape will get off scott free.
As I've said many times here before, the most culpable parties in this whole disgusting affair are the lawyers.Don't forget the doctors who stood by and watched. What ever happened to the Hippocratic Oath? Minimally, these people should all lose their license to practice medicine forever.
I think there's a difference between a hack lawyer you personally sought out beforehand and an OLC memo brought to you as you were ordered to do a thing. In terms of culpability, that is, right?
Going for a legal opinion to cover your ass would actually be evidence that you knew your ass needed covering, whereas having a Bush official come up to you and tell you to torture a guy a don't worry, the OLC says so long as you do it this way it's legal doesn't really have the same implications.
Andrew is exactly right above.
The CIA constantly operate in a moral grey area. There are things that they do, and that they will always do, that are morally dubious if looked at without the entire context. The same is true of every police department in this country. It is just the nature of law enforcement and national security. When you lie down with pigs you are going to get at least a little muddy.
My point is that the line between a "crime" and a "national security action" is not always clear. In the real world, its not going to be black and white.
Now in the case of the Torture Memos, that line was clearly crossed. No doubt about it. But it is not the CIA officer's job to draw that line. His job is to carry out the orders of his superior, and it is the superior's job to draw that line.
Regarding prosecution, see Glenn Gleenwald's interview with ACLU lawyer Jameel Jaffer. The operative phrase in Obama statement would appear to be "in good faith." If it's determined that the interrogators were not acting "in good faith," Jaffer seems to saying that all bets are off. And when you think about it, how could anyone proceed "in good faith" after reading the twisted logic of these memos, which is clearly meant to provide the barest scrap of a fig leaf on the techniques?
The 9/11 attacks didn't take much time; it was all over in less than two hours. So I guess there wasn't any suffering for those without a personal connection to the victims.
But it is not the CIA officer's job to draw that line. His job is to carry out the orders of his superior, and it is the superior's job to draw that line.Caretaker, do you have any evidence for this assertion? My understanding is that soldiers in the U.S. Army, for example, are not required to follow orders they believe to be illegal (http://hnn.us/articles/5378.html). On what basis are you claiming it's different for CIA interrogators? Not saying you're wrong, just hoping to see some evidence.
I'm not a lawyer, so maybe your reasoning makes sense in some legal world.
But the FBI new it was torture, and wrote memos about it. The Army new it was torture and prosecuted their underlings for doing it. We killed people after WWII for doing some of these exact same acts.
How could a highly trained interrogator NOT know that these methods were torture?
Of course it's hard for them to say no, and that should be taken into account when sentencing them - but the fact that it WAS torture should be punished, even if the punishment is lifted, and then should find another line of work.
Come to think of it, the actions of the large financial firms falls into a similar category in my mind :)
(that should be KNEW... I'm an idjit)
Casual Observer,
I can see your point re: my rape analogy, but I meant the analogy more from the perspective of a lawyer. That's how bad the legal reasoning is. But that doesn't mean it should be obvious to a CIA agent that what they're being instructed to do is illegal. Murder is illegal too, but under certain circumstances, CIA agents can be authorized to kill people. As Andrew and Caretaker point out, what CIA agents are asked to do is often in a moral gray area and they have to rely on legal guidance. These aren't just any lawyers. This is the OLC. Their opinions have the weight of law within the executive branch. The problem here was the lawyers. OLC lawyers have a unique position of responsibility and the people the Bush administration put in there badly betrayed that responsibility.
Just like you can prosecute Colonel Jessup for ordering the "code red" That was a movie, and not even an analogous situation. It is actually more applicable to the untrained prison guards at Abu Grhaib and, as I recall, it was the privates who were prosecuted.
They'll have to live with what they did. But they were relying on very specific OLC advice and following orders.And so we're back to Nuremburg. How can it be so far across the line as to be a war crime for a lawyer to write an opinion but be reasonable for those inflicting the suffering in person (who are not exactly untrained privates) and relying on that opinion to believe what they are doing is legal? If it isn't enough to shock their consciences then how can the opinion, however mistaken, be so egregiously in bad faith as to constitute a war crime?
They would never get convicted in a million years and going after them would be highly counterproductive.You are probably right. I'm sure Obama made the practical political decision not to try, but this is a catch 22. Unless we are willing and able to prosecute the torturers and then go all the way up, there is no way to ever do more to people like Yoo and Addington than maybe disbar them or take away tenure, and their defenders will make even that extremely difficult.
That so many people are complicit, if not active accomplices, in the crimes of the Bush administration is what made them unimpeachable and what convinces me that they will never face any consequences for anything. This includes much of the congress. Try to take them down and they and their party can and will take the whole political system down with them. That's why Obama keeps talking about looking forward, not backward. He's trying to tells us to be happy with what he sees as politically feasible for him and forget about what isn't. He wouldn't be where he is if he operated any other way, but that doesn't mean people shouldn't keep pushing to make things politically feasible which weren't before.
Dread Scot,
It's not just about political feasibility. It's about legal feasibility. In my opinion, securing a criminal conviction against people who relied on specific OLC legal advice is not feasible. They would be acquitted. And their acquittals would be treated as a vindication of the underlying conduct.
I believe there is evidence that torture occurred prior to the Yoo memos. Should those responsible for these sessions be prosecuted? (I agree the priority would be less than those who designed and approved of the policies.)
The fact of the matter is that murder was committed by interrogators. Should they be prosecuted?
Should contractors who tortured be prosecuted?
Do you now believe the Abu Ghraib bunch were bad apples? Were they acting under orders? Should they be exonerated?
Shouldn't the agents have to prove they were "ordered to do it?"
In the end, I disagree with your assessment. You say "From a moral standpoint, the people who carried out these "enhanced techniques" are far less culpable than those who ordered them to do so or who gave them their legal blessing."
But that's not an argument for not prosecuting. That's an argument for priority of prosecution. Nor have you countered the relevance of Nuremburg. What you know is morally wrong is still wrong if someone tells you it's legal.
You also say "If we start prosecuting people for conduct they were specifically advised was legal by the OLC, it will severely hamper our ability to conduct future intelligence work. No one will trust the advice they are given, they'll worry that the rug will be pulled out from under them at some point down the road. That's an untenable situation."
Amazingly, that's right out of Cheney playbook. This is a given? This is supposed to be objectively true? There's some sort of equivalence between the advice "hey, waterboard is legal" and all other legal advice they are given? Really? If someone told you that waterboarding is legally, you would believe them?
karrsic,
You're putting words in my mouth. I absolutely think we should prosecute people who murdered detainees or did anything else that went beyond or wasn't in good faith reliance on these memos. My point is that trying to prosecute people who acted on orders and within the scope of these memos is a futile and counterproductive. They are not the people we should be focusing on and prosecutions of them would not succeed.
What seems to be forgotten in this discussion is that some of the people tortured deserved to be tortured.
Oh yeah... start attacking me. In my (non-legal) opinion, any terrorist who's aim is to indiscriminately try to kill as many people as possible, has NO human rights. Yes, you read that correctly. NO human rights.
You torture those people, get the information you need, and dispose of them. No need to waste any time on prosecuting and keeping them in prison.
Having said that, I'd like to clarify as well, that it would be imperative to 'know' that they are actually terrorists.
The unfortunate truth is that the Bush Administration saw pretty much any Muslim as a potential terrorist. So if a neighbor with a grudge said that the guy down the street harbored insurgents that was enough for the Bushies to arrest them and torture the hell out of them. The Bush ideology never questioned that maybe the informant wanted the guy down the street arrested - knowing he'd never be back - so he could take over that property.
It seems to me that the Bush administration never made the distinction between ordinary muslim citizens and truly criminal elements who commit murderous acts.
During the presidential election last year we were reminded over and over that Republicans had a hard time distinguishing between Sunnis - Shias - Arabs - Persians and all the intricate tribal allegiances. As the Fox pundits kept telling us: they're wearing rags on their heads, they're all the same, so they must be radicals and wanting to harm us.
Why do people keep insisting that individuals who's sole purpose in life is to become a martyr by killing as many innocent people as possible, have civil rights?
Anonymous,
One of the reasons we insist that all human beings have human rights is precisely because of the imperfect nature of human knowledge (a problem you concede). In real life, you can never "know" for certain that you've got the cold blooded kill you think you do. Jeffrey Dahmer is just as dispicable as any terrorist, but no one questions that he had a right to be proven guilty before being locked up. That's why people have rights.
Second, whether someone "deserves" to be tortured is a pointless question. Torture is as much about the torturer as the victim. It's sadistic and inhuman. It serves no purpose. It's something that civilized people and civilized societies don't do. It sends all the wrong messages. It demeans human life. It puts our own soldiers in greater danger. It's just wrong and it diminishes us as human beings.
"Torture is as much about the torturer as the victim. It's sadistic and inhuman. It serves no purpose. It's something that civilized people and civilized societies don't do. It sends all the wrong messages. It demeans human life. It puts our own soldiers in greater danger. It's just wrong and it diminishes us as human beings."
But don't prosecute these "sadistic and inhuman" and "uncivilized" people because they "acted in accordance with the OLC's prior advice" and "no [agents] will trust the advice they are given." I'm pretty sure I didn't put words in your mouth this time.
Annon at 11:12PM, if someone is a criminal, you charge and try them. If they're a POW, you hold them humanely til the war is over (provided there is, in fact, a "war" - which at some point would become a legal issue). If there is no war, then you're back to criminal prosecution - where "proof" and conviction by due process in a constitutional court is equivalent to your "imperative to know" the accused is "really" a criminal.
This is the way a nation of laws works. Bush & Co. of course skirted and shredded all this with their legal inventions "enemy combatant," "war on terror" etc. They reduced us to the level of our foes - which was and remains an enduring and productive propaganda victory for our foes.
You're either a nation of laws, or you're not - whichever the government (and eventually the people) decide has real consequences (the aforementioned propaganda victory scored against us and all the associated consequences of that, for example).
And by the way, torture doesn't create useful information. It doesn't work.
-wye
In my opinion, securing a criminal conviction against people who relied on specific OLC legal advice is not feasible. They would be acquitted.
I don't have any illusions that this wouldn't work to a point. At Nuremburg the orders came from a foreign government which lost the war. That's mostly a political distinction, but a very important one.
And their acquittals would be treated as a vindication of the underlying conduct.
Unfortunately, the failure to prosecute achieves the same effect politically, if not legally. Also, if the crimes are not severe enough to demand prosecution and render the Nuremburg defense inoperative, then they are not severe enough for the authors of the opinions to have committed anything worse than malpractice. That's the catch 22. You can't go after the Bushies without going through everyone else first.
I don't have much hope that there will be enough outrage or shame to amount to much of anything. Are there really many people in the U.S. naive enough to think the CIA and other 'spy' organizations have never tortured or killed people before? As long as it was officially denied, small scale and kept out of sight in the shadows in far away places so we didn't have to see it, there was no problem. It was James Bond stuff. The problem is that the Bushies did it on an industrial scale, made it official and pictures got out. They made an ugly mess. As long as Obama can find a big enough rug to sweep it all under, all will be good again.
A.L. said:
My point is that trying to prosecute people who acted on orders and within the scope of these memos is a futile and counterproductive.So are you saying that you have to lose a war before the “just following orders” excuse doesn’t hold up?
Hank, I am afraid that's what it sounds like to me. Gota lose the war (ie, you've gota be tried by your victorious enemy) before 'just following orders' doesn't hold.
I think the torturers are fractionally less morally culpable in a philosophical way because more is asked of them (to refuse orders). But this fraction -- ideally -- has no legal bearing. It doesn't get you aquitted or a lesser sentence -- in an ideal world. That's as far as I'll go with A.L.'s saying the guards/torturers are less morally culpable.
Pragmatically, I agree with what AL is saying, that a conviction of these guys is harder because they're not being tried by their victorious enemies, but rather by their own side.
But I also agree with a previous poster - karrsic - that the pragmatic considerations are only "an argument for priority of prosecution." It may be possible to go straight to the top without prosecuting (turning) the guards first in these cases. Enough has been admitted already. We don't necessarily need testimony from one of the culpable interregators to prove the offense of the higher-ups. What about this, A.L.? Do we or don't we?
This is a disingenious post. Of course finding a legal opinion is not sufficient to render something legal. More to the point we all no that there was massive oppisition to the "torture program," which is the raison détre of these memos in the first place. Yes they were commissioned after the fact. There are several things.
1 Since the OLC opinions were used as after the fact CYA, following massive opposition from those who were told to apply the "enhanced techniques," it cannot reasonably be used as legal defense,
2 The existence of massive opposition (by the CIA and the military) establishes that already these techniques were considered illegal by non-OLC legal minds. Therefore any reasonable person, certainly these highly trained professionals, should be aware these memos were at best of dubious quality.
3 "Just following orders" is applicable to everyone who "should have known" he/she is given an illegal order. Even if it is supported by some legal opinion. Or, in the words of the London Charter of the International Military Tribunal: "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility."
Last, I would think whether or not anyone can read these opinions and reasonably believe they are reliable material is, given what is already known, something we should ask a Special Prosecutor/Judge to establish and not a politician or pundit.
Hank Gillette said:
So are you saying that you have to lose a war before the “just following orders” excuse doesn’t hold up?
My reply:
That is the precedent set by Nuremburg and Tokyo, that only the losers of a war are guilty of war crimes. I am not saying this to undermine your point, but rather to undermine the use of political show trials of war criminals (however heinous) on the losing side as a precedent by either side of this argument.
The WWII war crimes trials were horribly political, many of the most culpable Nazis (Albert Speer, who ran the industrial slave labor program, comes to mind) were given token punishments for pragmatic reasons based on their usefulness to the winners while many of those who were 'just following orders' were executed to make a 'moral' statement. The West German security apparatus was staffed with former Nazi secret policemen and the space programs of both the US and Russia were driven by rocket scientists who had been the architects of the Blitz.
The only precedent Nuremburg sets is that morality takes a back seat to pragmatism in the perceived national interest.
Personally, I think that the interrogators should be treated like Mafia soldiers in any RICO case... given immunity or reduced sentences in return for their guilty pleas and testimony against their superiors up the ladder, or else prosecuted to the full extent of the law. Let them decide.
I think Tsutugamushi has it right-this is a disingenuous argument. Maybe the people who carried out the orders were not culpable because they thought the orders were legal-however this determination is for a court to make. After all this is what trials are meant for. And to quote (helpfully supplied by Mr. Greenwald) the Nuremberg charter, which lawyers probably know better than me:
"The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."
Kris.
A.L.,
Greenwald has a specific response to your post, and as usual, I find myself in agreement with his reasoning.
For several reasons, I strongly disagree with your perspective here, and am troubled by it. I generally find you have become somewhat of an apologist for the Obama administration, and suggest that it is pressure that will be much more effective upon Obama than immediate, blanket support and forgiveness. I voted for him too, but I voted for him with an explicit understanding that a great deal of pressure would be needed to "help" him do the things needed to renew this country.
There is a greater point to this-Maybe the prosecutions of the people who carried out the orders will not succeed, but not prosecuting them is surely an abdication of the Govt's legal responsibilities. I am sure the Govt. has no qualms going after random criminals even when the chances of conviction are low-how is this any different, and more importantly, won't not prosecuting them set exactly the wrong precedents?
Kris.
The rationale that it is “looking backward” to prosecute but “looking forward” not to prosecute begs the question “looking how far”?
Not looking past ones nose renders the direction one is looking moot:
http://blogdredd.blogspot.com/2009/04/you-must-see-past-your-nose-obama.html
A.L., I have to disagree with you here, strongly. I'd like to repeat your 11:30 post in its entirety, and then add "Even if your lawyer told you otherwise."
I'm glad RICO was brought up. I think we should treat Torture, Inc. like any other organized crime syndicate (which is precisely what it is). The rape analogy is a good one, too. If my boss' lawyer says that it isn't rape if it happens in her house and doesn't take more than an hour, I do not suddenly become totally non-culpable for my own actions.
Phaedrus, I'm surprised and impressed that you were first to bring up Nuremberg here. Sorry for being snarky yesterday.
I should also mention the idea that failure to prosecute Nixon's crimes led pretty directly to Cheney's. Publilius Syrus said "Pardon one offense, and you encourage the commission of more."
Pardoning one President's violation of the law led to a vastly more widespread and horrific violation. We do not want to see what comes next if this goes unpunished. Do we need to prosecute the individual CIA officers? Arguably.
Bush and Cheney need to hang.
So let me get this straight. It's okay if a lawyer writes a memo? That's what your argument boils down to. So long as it's not something clearly illegal? Oh wait...
Dude, what would be the difference between this and the president of some banana republic legalising the murder of a minority by decree? How could you argue against that? You've just cut your own argument against "only following orders" from under you. I hope you don't plan on making it when pontificating about what someone does somewhere that isn't the US. If the Nazis had legalised the Holocaust, what then? What if the Nazis had not gassed Jews, but had only worked them to death in the camps. What then?
There would be no discussion if it was some other place that had tortured Al Zubaydah: we'd be agreeing that all involved deserved punishment. If it was someone else's CIA, you'd not be writing what you wrote. You want to believe that your guys are the exception: fundamentally decent men who relied on men who were not decent. Poor devils. They had no idea they were torturing people (to death in some cases, insanity in others) because Bybee told them they weren't.
Thanks Eudaemonic, I felt RICO was a far better example than Nuremburg both because of the extreme difference between political corruption and 'police' brutality and full-blown genocide and because the Nuremburg model is just so broken. Albert Speer was given a token punishment, and the man who worked for him to recruit and transport the work gangs was killed... despite Speer being the responsible party for the order that was being followed.
RICO prosecutions, on the other hand, work from a firm foundation of starting at the bottom to work up the ladder, giving those who 'just followed orders' the chance to somewhat redress the wrongs they have committed by assisting in the prosecution of those big 'R' Responsible for those wrongs. Those who don't choose to help in that process of redress are prosecuted with their bosses.
Precisely. I'm not advocating severe punishments for the low-level CIA people...but to refuse to prosecute them at all is to pretend that torture isn't torture if some lawyer can be made to tell you it isn't.
I think we've had enough time listening to the government and media refuse to call a spade a spade, no?
First, AL, awesome analogy with the "brief-rape-isn't-rape". Truly exposes the absurd mentality involved.
However, perhaps officials should take legal advice with at least a single molecule of NaCl and operate under the assumption that legal opinions do not nullify the law. Were this the case, more people may have resisted illegal orders.
I like the RICO theme. Give the little guys reduced sentences in exchange for testimony against the big fish. Minimally, they should be kicked out of the government. Bybee should not be a judge, etc.
Hank Gillette asks, "What kind of person tortures simply because someone else says it is ok?" Hank, have you ever heard of the Milgram experiment?
Andrew states that, "Going for a legal opinion to cover your ass would actually be evidence that you knew your ass needed covering." Like they did when they asked for Bybee's August 1, 2002 memo authorizing the torture of Abu Zubaydah? It is clearly written from the standpoint of someone who is pursuing legal cover for something that they want to do.
"You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box. You have orally informed us that you would in fact place a harmless insect such as a caterpillar in the box with him."
Annonymous justifies what was done to Zubaydah because he was a Very Bad Man (tm). Consider that our treatment of Zubaydah will create many more Very Bad Men (tm). Consider further that had we treated him humanely, he might give up fighting, or maybe even give us genuinely useful information, and we wouldn't make as many new terrorists. We might even win the rest of the world over to our cause!
karrsic brings up the excellent point that "I believe there is evidence that torture occurred prior to the Yoo memos." I agree entirely, and note that Holder always specifies that torturers are only immune if they had the memo to back them up.
I want to add another thing. There is this idea that if CIA cannot trust the legal advice given to them, the country will be less safe.
CIA knows that assassination is illegal. Any CIA employee who assassinates anyone should know that if they are caught, they are screwed. They do their job and take the risk of being screwed out of love for their country.
A true patriot who felt it was necessary to torture someone should be glad to suffer the consequences of prosecution if it means that they saved lives. They would serve their sentence with their head held high. That is "in good faith."
A false patriot would do everything in their power to avoid being subject to the very laws they claim to serve.
When I get a chance, I'm going to write a separate post responding to Greenwald, but I want to make a couple points clear. First, the claim that I'm acting as an "apologist to Obama" here is ludicrous. I had and expressed this same opinion well before Obama ever took office. Second, my opinion is not that the CIA agents did nothing wrong. I only said that they were less culpable than those who authorized the torture. And my ultimate point is that, regardless of their moral culpability, there is no chance of successfully convicting people who acted in reliance on these OLC memos. They will be acquitted. These aren't just any old legal opinions. They are the opinion of the OLC, which carries the weight of law in the executive branch. You'd have about as much luck convincting someone who acted in reliance on a Supreme Court opinion.
According to AL:"They are the opinion of the OLC, which carries the weight of law in the executive branch. You'd have about as much luck convincting someone who acted in reliance on a Supreme Court opinion."
I disagree, if it can be shown the Administration, the DOJ and the OLC were operating akin to a Joint Criminal Enterprise I would be surprised if a Judge would take your position. Already it has established DOJ was being reorganised for political and possible electoral reasons. Also, there is ample evidence OLC was in fact not providing the "what is legal" rationale but "what can I get away with?" Also known as a legal loophole.
Further, if with the ICRC report, the admissions by Bush officials and what not you feel there is insuffient chance of conviction I am shocked. People are serving jail sentences based on less evidence.
They are the opinion of the OLC, which carries the weight of law in the executive branch. You'd have about as much luck convincting someone who acted in reliance on a Supreme Court opinion.IANAL, so please bear with me. Your statement that the opinion of the OLC carries the weight of law seems too broad to me. There is always a line that can not be crossed. I assume, for instance, that OLC could not write a memo making it OK for the FBI to disregard a suspect's Miranda rights. Am I wrong about that?
If not, why is it OK for the OLC to write a memo saying it is ok for the CIA to disregard [fill in treaty saying torture is illegal]?
As others have noted, it is up to a judge and a jury to determine if a law was broken.
If nothing else maybe a ruling in this case, whether a conviction is obtained or not, can set some limits on the powers of the OLC to make acts legal or illegal. It seems to me that is the real problem here.
I forgot, if there really is no chance of convicting war criminals because they were part of a US administration why exactly were they so eager to alter the 1996 War Crimes Act, through the Military Commissions Act, in such a way that prosecution for this type of crime is no longer possible and was enacted retroactively?
I don't work in a legal profession so I may be missing something in the interpretation, but I don't think RICO is a good example here. I would assume that very few of the people prosecuted under the RICO framework can rely on a "good faith" argument for their defense. As I understand it, bargaining with these folks, starting at the bottom, is largely a process of gathering evidence. In the case of torture by the U.S., as long as we can assume a certain level of disclosure, there is no question of who is in the chain of command and, therefore, where the orders were coming from and how they got to the agents committing acts of torture.
If the acting agents themselves are to be relieved of the responsibility of interpretation, where in the chain does that responsibility lie? I'm not at all comfortable with the idea that a few ideologically driven lawyers in the OLC can give their opinion that specific methods of torture (or any other morally questionable actions) conform to the letter of the law and have that be enough to free everyone from the CIA director on down from the responsibility of commiting those acts.
It is also important to note that the specific methods described in these memos did not originate with the OLC, but with the agents themselves (or whoever designed their interrogation regime). From the Bybee memo:
"Based on the foregoing, and based on the facts that you have provided, we conclude that the interrogation procedures that you propose would not violate Section 2340A. We wish to emphasize that this is our best reading of the law; however, you should be aware that there are no cases construing this statute, just ast here have been no prosecutions brought under it."
Is there not also a moral obligation for those designing these methods to recognize when they are crossing the line into torture, and not rely on a sterile legal interpretation to define the outer limits of their actions? "In good faith" should apply as much to common, widely understood values (as described by our many treaty obligations concerining the handling of prisoners) as it does to academic legal wrangling.
Perhaps I have moved beyond what is legal into what is simply right, but I like to think the former begins in the latter.
While I agree that whoever wrote these twisted memos deserves to be punished, I also know that no lawyer ever renders a legal opinion until it is sought by a paying client. That is, I don't for a minute believe that Yoo, Bybee, Addington, et al provided these memos without specifically being asked to. What I want to know is who asked for this cover? Was it the CIA seeking a little ex post facto CYA? Cheney? Bush? All of the above?
Whoever asked for this 'work' knew perfectly well that the acts committed were illegal. After all, the Tokyo Tribunal in 1947 tried one Yukio Asano for the specific crime of waterboarding, convicted him, and sentenced him to 15 years at hard labor. At a minimum, I believe that the lawyers and the seeker(s) of the opinions deserve the same.
The rhetoric of not focusing on "retribution," looking to the future not the past, understanding strong feelings of those on both sides. etc. makes me far from optimistic that the Bybees of the world will be targeted.
If we had any evidence that Obama actually was going to do this, maybe people would be a bit less outraged. You know, like him taking INVESTIGATIONS off the table. Sorry, seems impeachment (of Bybee) is off the table too.
"Personally, I think that the interrogators should be treated like Mafia soldiers in any RICO case... given immunity or reduced sentences in return for their guilty pleas and testimony against their superiors up the ladder, or else prosecuted to the full extent of the law. Let them decide."Yes.
"Whoever asked for this 'work' knew perfectly well that the acts committed were illegal. After all, the Tokyo Tribunal in 1947 tried one Yukio Asano for the specific crime of waterboarding, convicted him, and sentenced him to 15 years at hard labor. At a minimum, I believe that the lawyers and the seeker(s) of the opinions deserve the same."And yes.
"Just like you can prosecute Colonel Jessup for ordering the "code red" while acquitting privates Dawson and Downey."
Well... if you're going to rely on 'movie facts' to underscore a point, then wouldn't it be good to know what those 'movie facts' actually are, and to cite them accurately?
The privates, Dawson and Downey, were convicted of "conduct unbecoming" and were dishonorably discharged from the Marine Corps. That can hardly be understood as being acquitted in any sense of the term.
We should want no less with regard to CIA interrogators.
Nuremburg gets cited because it is familiar, though only loosely applicable. Those 'just following orders' back then did not have their own precedent-setting convictions to know about, as do highest-level, professional CIA interrogators.
Those convicted at Nuremburg while 'just following orders' did not have The Geneva Conventions to know about, as do highest-level, professional CIA interrogators.
They did not have the Convention Against Torture to know about, as do highest-level, professional CIA interrogators.
They did not have the U.S. Constitution's ban on "cruel and unusual punishment" to know about, as do highest-level, professional CIA interrogators.
Just to cite a selective, short list of things that the highest-level, professional CIA interrogators of today have as a contextual knowledgebase.
Would it be considered credible for any one of these top-level CIA interrogators to seriously claim that they'd never heard of the Nuremburg trials, and claim to not know that one of the outcomes of those trials was the ruling that 'just following orders' is not a defense?
Would it be credible for any to claim the whole-and-complete, thoroughgoing, vacuum-like ignorance that you want to ascribe to these highly-trained, professional, top-of-the-top level CIA interrogators?
I certainly hope that it would not be possible.
At Minimum:Full investigative cooperation regarding and forthright testimony against the order-giving higher-ups... and then mandatory dishonorable expulsion from government service (with loss of pension, etc.) is the minimum that ought be demanded.
IMHO
I think that argument would hold water if the cia officers were being asked to do something grey area like. but they weren't; they were being asked to do actions which even the dogs in the street know are torture.
I believe your call for a more responsive alternative to OLC is the right one. The whole sorry episode makes clear that we are indeed playing out the feared doomsday legal scenario: what if the highest law in the land (or in this case, in one governmental branch) is conclusory, arbitrary and morally wrong? What are we to do? You are also so right re Obama: Moving forward without righting this wrong is not moving forward at all. Just a moment's somber reflection makes this clear. Kudos to you.
Bye bye Geneva Convention.
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