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Prosecuting Torture
Several emailers want to know why I support Obama's decision not to prosecute the CIA agents who engaged in torture of prisoners during the Bush administration. 
To be honest, I'm not entirely sure that I do, but in case you're interested, here are the arguments against prosecution that have run through my mind:
First: I hate the idea of spending time prosecuting the little guys while the big fish go free. If there's anyone we should be prosecuting, it's Bush, Cheney, Addington, Bybee, Yoo, and Tenet. Until that happens, it's hard to justify prosecuting their underlings.
Second: Every agent would be entitled to a vigorous defense, which would almost certainly require them to make extensive use of classified information. The government would naturally invoke the state secret doctrine in virtually every case, which would make it nearly impossible to conduct trials that are both fair and reasonably public.
Third: This would be a very, very big operation involving hundreds of prosecutions. It would almost certainly drag on for many years, and although I'm not a lawyer, my sense is that successful prosecution would be extremely difficult. The result would quite likely be a long, gruesome, process that would mostly disappear from public view except toward the end, when nearly everyone is acquitted. Frankly, this might be worse than nothing at all.
Fourth: "I was just following orders" is obviously not an acceptable excuse in cases of clearly illegal instructions. On the other hand, CIA agents should be able to rely on OLC opinions without constant fear that a successor administration will decide on different legal interpretations. There isn't a hard and fast rule here, but it's legitimately something that needs to be balanced.
Anyway, my mind is still not made up on this. It's just a really hard problem. But I will say that I find #1 persuasive almost all by itself. If we're going to prosecute the top guys, that's one thing. But if we don't, it would be a massive miscarriage of justice to prosecute the field agents just because that's politically more feasible. We really don't want to live in a country that does such things.
Bush and Cheney first
You're quite right about #1. If we can't convincingly convict Bush, Cheney, et. al. first, then by convicting their subordinates -- however wrong they were -- we'll be creating a new set of martyrs to carry the torch passed on by Ollie North and scum of his ilk.
OTOH it sure would be nice to see some public repentance. I ain't holding my breath.
Personal Moral Vacuum
tagged as:- result
Having served as a combat soldier, having personally captured 2 POWs, and treating them both as "human beings despite our enemies status", and also having the very personal experience of pain and loss of 3 of my LRRP team members captured, tortured and murdered in Vietnam, I have quite strong feelings regarding this subject.
Torture is WRONG, IMMORAL and INEXCUSABLE, NO EXCEPTIONS!
1. Nuremberg Trials,
2. Nuremberg Trial; Japan's Leaders Were Also Tried - The New York Times
google these 2
ALL INVOLVED ARE TO BE PROSECUTED TO THE FULLEST EXTENT, PERIOD!
Are we become what we supposedly fight, bleed, cry and die to prevent or eradicate?!
NEVER AGAIN, has the relevance of a cheap political motto or bumper sticker, I am ashamed of the US Government!
Sgt. Allen G. Riegel
US Army (ret) WIA
HQHQ LRRPs
3rd Bde, 25th INF
VN Jan. - Sept. 67
World-class citizens working for a Better Tomorrow and a Better World, Today and Everyday! © 2008 Allen G. Riegel
The masses are asses, you can lead them to water, but you can't make them think. ©2005 Allen G. Riegel
Ali Lama "PEACE"
so where do you draw the
so where do you draw the line?
what is to prevent another set of government lawyers creating a legal framework allowing for torturing US citizens
or force deportations
or secret gulags
or disappearing activists
all four of your arguments against prosecution would likely apply
Grab the low-hanging fruit.
And that fruit is Jay Bybee. He's a federal judge now, and he ought to be impeached.
prosecution
The structure of our government, the complexities of our judicial system, the sensitivities of national security information, the need for political healing and an alleged more important necessity to look forward and deal with more urgent present and future problems require we allow torturers and murderers to be immunized from prosecution and punishment. How, exactly, will future citizens almost certainly faced with the same impediments to accountability be assured of dissuading the commission of the same crimes? Won't each of these issues be present the next time similar emergencies face those we trust to act within the law?
again
Without consequences expect it all to happen again the next time the Republican Party holds the Presidency.
Poor Naive Nat
Interrogation techniques under Bush were the most controlled and least dangerous of any war in history. Democrats oversaw two of the last three large wars prior to Iraq. Do you really think there were no "harsh" interrogation techniques applied in WWII, Korea, and Viet Nam? You are obviously too young, too uneducated, and too naïve to place contemporary issues in the context of history.
War is a messy business and until the post-Watergate era, we the public seldom heard what really went on…like my buddy cracking the knees of captured Viet Cong with a baseball bat during interrogations. Or taking them up in a Huey and kicking them out the door one by one until they decided to talk. That was during the Johnson years…and he being a Democrat.
I am not saying the above is acceptable. But what you must understand is that putting a person in a box with a bug, pushing them against a wall that gives, or even simulating drowning - a technique used on our own soldiers to train them what to expect if captured - to obtain information that can save 1000s of American lives would not be considered torture by most standards.
Torture leaves people permanently maimed, incapacitated, or dead. Like when Al Qaida slices the neck of an innocent American captive and posts it on the internet.
The NY Times just published an article quoting Obama's appointee and head national intelligence officer. Seems there was important intel gathered from the two waterboardees...intel that may have saved your life, especially if you work in certain LA office buildings.
Lastly... if you prosecute Republicans, you must also prosecute Democrats. All these interrogation techniques were shared with Congressional oversight committees. So if you want to know who knew what and when....it started in 2002 with Congressional approval.
You people really need to get off the I Hate Bush Bandwagon and apply some clear, contextual thinking.
Poor Naive Somebody
Barry, I'm not sure from your article where you stand on torture. The way you summarize "harsh" interrogation techniques in past wars, commenting that "War is messy" and intel from waterboardees may have saved lives, it sounds like you think these techniques are justified. Then, in reference to techniques used in WWII, Korea, and Vietnam, you add, "I am not saying the above is acceptable."
Then you seem to say that the treatment of prisoners in Abu Ghraib (and perhaps other US detention centers) "would not be considered torture by most standards," since it does not leave people "permanently maimed, incapacitated, or dead."
So, to sum up, harsh interrogation techniques are an inevitable part of the "mess" of war and sometimes provide life-saving intel. Still, maybe we shouldn't view them as acceptable. But that doesn't matter in this case because what the US is doing now isn't really torture, since nobody gets permanently maimed, incapacitated, or killed. (Not permanently dead? Maybe they go to heaven later?)
I'm curious how you know what is considered torture "by most standards." Whose standards are you thinking of? The standards of those who practice torture? The governments that justify it? Probably not the standards of the victims, I'd guess.
Also, isn't it a bit naive to trust information about life-saving intel from waterboardees when that information comes from a government that wants to justify torture? Your source is Obama's apointee and head national intelligence officer. Are you sure this person's integrity is unquestionable and his information completely reliable? It seems like asking Bush whether he had any foreknowledge about the attacks on 9/11 and just accepting his answer as sufficient.
And even IF some useful intel were actually gathered occasionally, does this justify the use of waterboarding, shock treatment, or other such techniques against people who are innocent? I'm referring to the likely vast majority of detainees who have been imprisoned for no just reason in the midst of unjust wars fought primarily to extend US control over desired areas of the world?
Personally, I think torture is simply any systematic infliction of suffering on a person who is held captive. Webster's defines it as "the infliction of intense pain...to punish, coerce, or afford sadistic pleasure." My guess is that MOST people understand this is what torture is.
Any attempt to redefine it is like Clinton's argument that a blowjob isn't really sex. But the US justice system accepted that argument, so it wouldn't surprise me if they accepted a similar definition of torture that excluded whatever methods US soldiers happen to practice. Pulling out fingernails doesn't kill or permanently incapacitate a person,...so it's not REALLY torture.
The argument that torture is necessary for defense is just a lie useful for propaganda. Moreover, the end cannot justify the means.
Steve I really enjoyed your
Steve
I really enjoyed your thoughtful response and questions. I respond with the same respect you showed.
You said: “Also, isn't it a bit naive to trust information about life-saving intel from waterboardees when that information comes from a government that wants to justify torture.”
I really don’t think anyone was trying to justify torture – more like justifying that waterboarding was not torture. In addition, when used, it had to be after other measures had failed, the prisoner was a higher level operative, and medical precautions taken. Reports indicate only three people were waterboarded at Gitmo and that included KSM, the admitted 9/11 mastermind. As far as trusting the intel gathered…if you know much about the intel gathering…you never act on just one data point. You would never “trust” what just one person said. You follow up and investigate, look for corroboration and validation.
You said: “And even IF some useful intel were actually gathered occasionally, does this justify the use of waterboarding, shock treatment, or other such techniques against people who are innocent?”
First, I have not heard of any Gitmo detainees receiving anything other than waterboarding and some insulting face slaps or tosses into a false wall. Even the confined box with a caterpillar idea was called off. These people were given clean housing, a diet that met their religious requirements, prayer mats, and even compasses painted on the floors so they knew where Meccah was. As far as innocents…come on. Many of the people released from Gitmo have been re-captured back in country after purpetrating more terrorism and attacks.
You said: “The argument that torture is necessary for defense is just a lie useful for propaganda. Moreover, the end cannot justify the means.”
Unfortunately, the end sometimes does justify the means. In a later reponse, I speak of the moral dilemas such as ending WWII with Japan… 1 million US military losses or 100,000 Japanese civilians burned to a crisp. Using night vision technology to waste bad guys setting roadside bombs in Iraq without a trial. Dropping Hellfire missles on Al Quaeda leaders driving their Land Rover through an Afghan mountain pass after targeting their private cell phone conversations. War is distasteful and requires making those kinds of decisions.
What’s fair when your enemy follows no rules? I know…we don’t want to stoop to their levels. We have principles. We have moral upstanding. Where’s your moral upstanding when someone kidnaps your child and you have a chance to interrogat one of the kidnappers? I know where mine would be… saving my child. I didn’t start the fight but I will finish it.
fat and happy
Tens of thousands of urban, ethnic minorities were prosecuted and imprisoned at great expense the past twenty-five years for drug possession, but they did not receive a vigorous defense nor did their prosecution involve classified information, so most Americans were pretty unconcerned with their plight. CIA torturers, on the hand, were slapping heads, playing loud music, keeping the lights on, tying suspects into stress positions and simulating drowning to keep those same unconcerned Americans fat, happy and shopping.
Who can prosecute?
I had much the same thoughts. It feels too much like reenacting the Nuremburg trials but with only prison guards or army officers. Indeed, one way to get reconciliation after a criminal regime has often been pardoning the low level, from Germany then through South Africa after apartheid. But the sad truth is that it's almost unprecedented to have a country to conduct its own war crimes, and when it does put past rulers on trial, it has often been an act of tyranny. That doesn't mean it would be now, only that it is largely unprecedented. That lesson of Nuremburg, that someone else has to do it, is why I was hoping for more from Spain. But then another lesson of Nuremburg is that it takes victors, and America still has a lot of power.
According to the 1996 War
According to the 1996 War Crimes Act, torture is punishable by imprisonment "for life or any term of years", and torture that results in death of the victim is also "subject to the penalty of death".
According to Lawrence Wilkerson:
"As I compiled my dossier for Secretary Powell, as I did further research, and as my views grew firmer and firmer, I needed frequently to reread that memo. I needed to balance, in my own mind, the overwhelming evidence that my own government had sanctioned abuse and torture which, at its worst, had led to the murder of 25 detainees in a total of at least a 100 detainee deaths. Death, Mr. Chairman, seems to me to be the ultimate torture, indisputable and final. We had murdered 25 or more people in detention."
So Obama doesn't want to prosecute? Fine. What is he going to do that will ensure that it never happens again?
Catching Hell
We had a saying in the US Army, after a big fuck-up, that "Some PFC is sure going to catch hell."
But it would be unprecedented to prosecute further up the chain of command. "Nevah hoppen, G.I."
Nuremberg
There is a world of difference between saying, "Little guys, you are home free if you have got a passable paper trail, Nurember be damned", and on the other hand, "We will actually carry out our legal, moral and treaty obligations to prosecute torture and other war crimes wherever we find them, but out of fairness will prioritize the people at the top." I don't know which you are saying, Kevin. Do you?
Ken D.
Special Prosecutor
Time for a special prosecutor so that Obama can distance himself from the politics of it if he's too chicken.
Impeach Bybee?
Bybee is now a federal judge. What do you think of the idea of impeaching him on the basis of the Bybee memo (that it was written to achieve a desired result and didn't represent good faith reasoning on the law)?
How much of the "Well, there
How much of the "Well, there is a method to Obama's madness, blah...blah...blah.." is merely those on the left putting on a brave face while privately flailing about and drowning in the realization Obama is not the man, President or leader they were hoping for? I stood in a cold rain at 6AM waiting to vote for him and letting torturers and murderers walk (regardless the rationale) makes me want to puke. Flesh and blood human beings were killed in American gulags and not every one of them was a terrorist bent on committing heinous atrocities against this nation. For all we know damned few of them were. He's a Harvard trained Constitutional lawyer. I hope he has a trick up his sleeve to make all this right. If not then he's the same sort of goddamned son-of-a-bitch we know Yoo and Addington and Bush to be.
What would it take?
Who would or could be on a team here in America to do such prosecutions without anyone saying it was a Dem prosecution or unfair?
Maybe Vincent Bugliosi and Ted Olsen and Carol Lam?
If it can't be seen as entirely non-political non-partisan, then it probably shouldn't be done and we should defer to the Spaniards.
This is precisely why
This is precisely why torture rots a country from within.
If nobody is prosecuted, the chance of repeating this policy goes up, I would speculate dramatically so. These people that were trained in its use and placed this policy into action, almost certainly moved up the ladder and have become leaders, or will, even if they are not presently. Internal to the CIA, they may be rewarded as good soldiers in the cause, since they took on the risk of this work, or at worst, their part in the whole of these sordid events will be ignored. Ditto for political players too. However, as they become leaders or return to power, as some almost certainly will, they will lobby again for these "techniques", because one thing people do is use what they know.
For practical reasons, and a point of justice, we should prosecute from the top down. The practical is simply that the people at the bottom are not the ones that put this policy into place, and are the least likely of the players to have future power to put this policy back in place. Also from a point of justice, oddly, not that it diminishes their guilt, but the bottom rung players are victims in the sense of a system that asked them to perform these tasks. It is known that torture has certain consequences on the psyche for the torturer too.
But when any nation state remains standing, prosecution usually represents an impossible political task to undertake. The political party that sanctioned this behavior will violently oppose any such thing, because too much is at stake. And frankly, we have a 2 party system. I seriously doubt that the stain of this policy rests strictly with one party, even if mainly so. The possibility of a government prosecuting itself has never been good.
A poorer, but alternative approach, would be for the country to have some real introspection on torture as a policy. That possibility does exist. But, we have a major economic crisis sitting at our doorstep and that also demands attention. Even without it, politicians would find other issues more convenient than an introspective look at becoming a torturing nation.
Despite these other serious issues, anyone with any sense should continue to oppose torture, its cover up, and insist on a full disclosure of what our country has done and the precise consequences to all because our country, despite the recent elections, is at very high risk of sliding into the policy and behavior of torture in our near future.
So, make no mistake, the rot is in place, which means the push on the political side is to do nothing other than paper over a newer policy (possibly). However, unless you are a nihilist, you should insist on something more.
If it's unacceptable, don't accept it.
Kevin,
You seem have an internal contradiction about whether "just following orders" should be an acceptable defense for indefensible conduct. You say that it's unacceptable, yet the effect of your judgment supporting Obama's decision not to prosecute is to ratify the illegal conduct and to establish that, as a practical matter, "following orders" is a legitimate defense to charges of war crimes and crimes against humanity. Or to put it another way: If it's unacceptable, don't accept it.
As I’ve previously said, none of these so-called “legal memoranda” represents the giving of well thought out “legal advise” and was certainly never seen as “guidance” by the torturers and their masters. It is clear that the people at the CIA and elsewhere did not "rely on OLC opinions" about whether they were, in fact, committing torture. The purpose of the memos was never to give lawyerly guidance about proper conduct. Clearly, the participants in this kabuki performance cared not at all whether the memos were well crafted examples of the lawyer' art or something that would get a first year law student a failing grade. The torturers simply wanted assurances that they would not be prosecuted for their evil.
It would have been much simpler and infinitely more honest if George W. Bush had simply given each of his torturers a letter reading: “The person with this letter has acted under my orders for the good of the United States”. If for no other reason then that we would have been spared all of this silly parsing of the various treaties and domestic laws about torture.
Fortunately for us, America had the good sense to elect a former professor of constitutional law able to speak with great eloquence and power about the “rule of law” even as he pisses on it. But is the ability to more eloquently immunize torture and other war crimes in the name of “moving forward” really change you can believe in?
Mitch Guthman
prosecutions
not to sound too much like glenn greenwald, but it seems to me that under various treaties the u.s. is *at least* obligated to investigate, and, if warranted, to prosecute credible allegations of war crimes. we've already long had in front of us such allegations. it's called 'rule of law.'
your pal,
blake
Estoppel by Entrapment
There is the legal defense of Estoppel by Entrapment which basically means that the CIA interrogators involved cannot be prosecuted if it can be established that they reasonably relied on advice from a government authority that claimed the practice was legal beforehand.
I learned this over at Opinio Juris, but the post concerned seems to have disappeared for the moment.
The poster over at OJ was critical of Obama granting immunity to these officers, however.
The counter-argument is based on the fact that the Bush administration asserted many times that the interrogators were highly trained CIA personnel with a great deal of experience (they claimed the average age was about 40 years old).
In this scenario it is highly unlikely that any of them could be said to have carried out abusive techniques whilst 'reasonably' relying on advice from OLC...which was actually suitably vague about whether the acts involved were legal or not (they merely claimed it was unlikely any court would become involved).
The interrogators weren't young, inexperienced GIs at Abu Ghraib. They were highly trained operators, versed in interrogation techniques for a number of years...or so we were led to believe.
This argument resonates with me quite a lot...and that's before you even consider those interrogators who used techniques well beyond what was authorised by OLC or used during the military's SERE training, particularly in the case of water-boarding.
Kevin...You seem have an
Kevin...You seem have an internal contradiction about whether "just following orders" should be an acceptable defense for indefensible conduct.
I don't think he does (to speak for him): it's that a CIA interrogator can argue for his innocence not by claiming he was taking orders, but that the actions he engaged in were deemed legal by the highest authorities in the executive branch. That is a big difference.
But I agree with Kevin's assessment of things. The pragmatic considerations, coupled with the slippery slope of justification in the case of the actual perpetrators argues against bringing each of them to trial.
The real criminals here are those who wrote the convoluted legal opinions, and those who implemented them as a practice. That means members of the White HOuse.
Yes
I agree that the real criminals are those who wrote the opinions and those at the top who instigated the policy and knowingly saw to its implementation. And the comments about a country rotting from within can be best answered by selective prosecutions of the highest level officials rather than those at the bottom. Justice will be served with substantially less cost and frustration than would come with an all out campaign of prosecutions of the torturers themselves. People like Bybee, Rumsfeld, Cheney and others at the top would not be able to invoke the defense of "I was just following orders." Prosecution of these felons would send the message to other countries that we as a nation hold ourselves accountable . Those within the CIA and military establishment will know that these unlawful acts will result in consequences, and that they are fortunate to not be the subjects of prosecution this time around. To the extent they felt betrayed by those at the top who pressured them into carrying out such actions, they will feel some sense of vindication. And the public at large will regain the sense that we live in a country in which nobody is above the law.
Of course, Bush will still be able to use the insanity defense. No one as delusional as he has been for the last eight years can be held accountable in a court of law.
Orders
If Obama ordered Holder not to prosecute, why isn't this obstruction of justice?
Buty'em alive!
What is this talk of relying on legal opinions of superiors? Can you lawfully refuse to carry out an unlawful order or can't you? During your military and/or intelligence training you are told what constitutes torture and consequently you know what is unlawful. If someone says "Well, now we have an opinion that says what you've been taught up to now is null and these are the new rules" you say "Bullshit, torture is torture, how in the hell do you redefine torture in the middle of the game? Count me out." What if you went up to a soldier and said murder as he understood it was no longer murder? "Here, look at this new legal opinion, and when you're finished throw all those people in a ditch and bury them alive." How much weight should that soldier give to the new "Bury'em alive" legal opinion? Hmmmm??
I guess the relevant
I guess the relevant question is who you think bears the responsibility here. Since I believe that the US Code and Article 51 are clear here, I believe that the interrogators are in fact guilty of torture. But the part of the story that takes it from unfortunate to truly grisly is that the White House tried to codify - in its own inept way - an exemption to what is clearly illegal behavior.
The first point is a non
The first point is a non sequitur. Ruling out the prosecution of the underlings does not make prosecution of Bush, Cheney, et al any more likely.
Second: If the government is truly interested in prosecuting those responsible they can overcome attempts by the defense to pull in secret materials. Largely this is a function of narrowly defining the charges to the physical actions and specific orders related to torture. A finding that torture was committed is not dependent on the "value" of the prisoner, how they were captured, or even the quality of the information derived. There are efficiencies of scale here. The first few prosecutions will be an exhausting legal tangle, but once the rules of evidence are established and the key
Third: It's potentially expensive and time consuming. So what? Again we're talking crimes against humanity. The Allies didn't prosecute every Nazi in Germany at Nuremburg. Nothing says we have to go after everyone involved. Pick the best cases and go after them. The Pentagon has admitted that 20 or more people died during interrogation. That is clearly not covered even by Bybee's apologetics. Go after those people first, then the ones who followed the illegal orders. Make sure it is a career-ending event for the next tier who are not prosecuted.
If we can't find a couple of hundred lawyers in this economy, we're aren't looking very hard. It's more stimulus, anyway.
Fourth: One can concede that intelligence services work at the fringes of legality, but torture is NOT open to legal opinion or debate. There is no slippery slope here - we're already near the bottom. When The CIA contemplates crimes against humanity, I want them to be second-guessing the legal opinions and orders they receive.
Leaving this as a legal gray area out of fear that some people will be acquitted is foolishness. If it is not prosecuted, it will become a recurring and increasingly worse problem. If everyone is acquitted then the laws need to be changed and we should face that directly.
Kevin: Fourth: "I was just
Kevin: Fourth: "I was just following orders" is obviously not an acceptable excuse in cases of clearly illegal instructions. On the other hand, CIA agents should be able to rely on OLC opinions without constant fear that a successor administration will decide on different legal interpretations. There isn't a hard and fast rule here, but it's legitimately something that needs to be balanced.
I don't agree with this. I do not care what legal authority asserts that waterboarding, stress positions, isolation, etc., which we have performed on prisoners is not torture. Or, maybe they assert it is torture but it is ok to do anyway. There comes a point where it is a question beyond law and reaches to our common sense of what is real. Because a legal authority says the sun rises in the west does not make it so.
This is about power and subjugation. Because Bush could assert his authority or intimidate people in his administration to make rulings and statements that were fundamentally untrue -- not only legally false -- but false in the sense that it is just not real, does not give a real excuse for carrying out these actions. Everyone knows that what we did was torture, including the people who did it.
In a famous Star Trek episode, John Luc Picard was tortured by Cardassions. Four bright lights were placed in front of sleepless Picard, and he was told he could only be allowed to sleep when he would state the correct number of lights -- five. He insisted that there were four bright lights. The last words to his torturer before he was released was "there...are...four...lights" After his return to the ship he confessed to a crewmate that at the end he really thought there were five lights."
None of us can pretend things that aren't real are real because someone says they are.
No prosecutions but still interrogating prisoners?
I am with DWN above.
But even if you accept Kevin's lazy reasoning, do we really want these CIA employees still interrogating prisoners? Methinks we need real reassurance that the system and methods have changed to sane, reliable ones.
Amen to that. I find it
Amen to that.
I find it repulsive, btw, to call the men who tortured the prisoners by freezing them, by making them unbearably hot, by putting them in painful stress positions, by waterboarding them, by driving them insane, by beating them (to death), "the little guys".
They are not some low level employees in an insurance firm enforcing an impopular policy. Those would be "the little guys'.
These CIA men are torturers.
They should be helped to find jobs outside the CIA and military. They should get mental Healthy care. I think they should be prosecuted, at least some of them.
And they should never be in any position of authority concerning any kind of prisoner, nor should they get teaching positions in military academies, nor should they ever have political positions that have anything to do with prisoners or the military.
Too big to fail?
tagged as:- solution
The reasoning;
"This would be a very, very big operation involving hundreds of prosecutions. It would almost certainly drag on for many years, and although I'm not a lawyer, my sense is that successful prosecution would be extremely difficult. The result would quite likely be a long, gruesome, process that would mostly disappear from public view except toward the end, when nearly everyone is acquitted. Frankly, this might be worse than nothing at all."
Isn't much different form the spin we are given as to why we can't let the behemoth banks suffer the consequences of their amoral behavior.
When considering the
When considering the prosecution of interrogators, it is likely that the first thing they will do is claim that the procedures listed in the memos are not, if fact, torture. After all, that is what the memos themselves assert.
Since the internationally accepted definitions of torture are broad enough to leave lots of room for interpretation, the validity memos themselves are the first thing that must be decided. For trial purposes, it is not enough that bloggers, or even Senators and Congresspeople, declare that these methods are torture. To convict the people who used these techniques, it can be argued that the techniques must be found to have been torture when they performed them. If they can show they had reason to believe they were in the clear, then any ex post facto declaration that the guidance was wrong will not likely be enough to convict them.
There is plenty
There is plenty (international) caselaw that calls torture both what the internal memo's allow, and what is described in the Red Cross torture report.
What about disbarment of
What about disbarment of Yoo and Bybee? One's teaching constitutional law at a top law school and the other is on the 9th Circuit Court.
And get rid of Bud Selig while we're at it.
The cancer is in the body
What has become indisputable, is that the cancer of torture is now in the body.
The way to treat the patient is not to target the metastases, but to tackle the primary tumor.
To just say 'sure its defiguring, but look, it is contained for the time being' does little in terms of preventing the disease from reoccurring in the future, as a matter of fact it makes that almost inevitable.
I appreciate that Obama finds himself in a difficult spot here, especially because he appears to have a rather strong innate tendency to try and accommodate the largest number of people wherever possible.
But doing the right thing in tight spots is exactly what distinguishes true leaders. And doing the right thing here is to make sure that history will not see the Obama administration sweeping torture and other legal follies of the Bush II administration under the rug as the point when the US gave up its claim of being a country of the law and became a country of men.
Establishing a case for torture
I generally agree with Kevin's first point that going after the small fish and ignoring the big fish is a mistake. The people who need to be prosecuated are those who are responsible for the policy. I think most people agree we don't want to repeat the Abu Ghraib(sp?) court martials.
Having said that, DOJ, when it investigated Enron in the early 2000s, used the threat of prosecution to obtain cooperation from those lower down in order to prosecute Lay and Skilling. If Addington, Rumsfeld, Yoo and others are to prosecuted, there is going to be a need to establish torture occurred and more will be needed than the ICRC report - actual CIA operatives will have to talk. Within most bureaucracies, there is a huge disincentive to disclose on those higher up - see Tamm for example. The CIA has already ready admitted to destroying evidence so it seems unlikely to me that anyone involved in the interrogations will willingly come forward as a prosecution witness.
I think one powerful means to force cooperation is to offer immunity for testimony establishing the chain of command. Any prosecution will need to show that the chain of command was seeking a "golden shield" and that the OLC memos were written in bad faith and those in power at CIA (Tenet and others) and DOD knew they were written in bad faith. In other words, the prosecution will need to show the OLC had a mob lawyer mentality of legalizing the illegal and everyone involved knew it. This will include showing that torture occurred and testimony that those involved either suspected or knew this to be torture and the memos were written to give the appearance of legality.
It is not an easy case to make but the money involved to make it and time spent are well worth it. Otherwise, I fear, another unscrupulous President, D or R, will follow a similar pattern to break the law.
little guys
Of course, you have to go after "little guys" to get to the big fish. This isn't the same as postwar Germany or Cambodia, where prosecuting all the thousands of guards would have been unfeasible and socially disruptive. In this case the number of perpetrators is fairly small, so there is no reason not to go after everyone. The small guys defense will always be to blame the big fish, and that's exactly how convictions of this type always come. You get a street-level hoodlum to talk, that brings in the middleman, and so on up to the top.
And if the fear is that these torturers are going to garner public sympathy and thus damage the administration's popularity, then the population of our country is ethically degraded to the point that they do not deserve to be pandered to one bit.
Convenience and fairness are not the issues
I think there should be prosecutions, and immediately.
You should get the big fish, but the only way to do this is through the little fish. You get them to admit that torture happened and work your way up the food chain. And just because you can't prosecute everyone doesn't mean you shouldn't get who you can. Putting a few people in jail would send the message that everyone is responsible for their own actions--and this may be the only thing that prevents this from happening again, someone saying "no" and then calling either the Justice Dept. or the New York Times.
I'm always suspicious of arguments involving the "fairness" of unequally distributed pain. If these people committed crimes they should pay. The unfairness here is to the American people who have to see the big fish swim away, not to the little people who committed acts of torture.
Yes, the defenses would be vigorous, but we prosecute more complex crimes every day. And this is a crime with major implications for our foreign policy.
I'm not sure how much classified information would be involved. We're not asking what kind of information the interrogators were going after, only what methods they used.
I agree there should be a line between what is acceptable if one is ordered to do it and what is clearly immoral and illegal--and it's exactly cases like this where that line is clarified. According to the reports, there were many cases that clearly went beyond the pale.
After fifty years of vigorously supporting humane conduct, I don't see how the US can sweep this under the rug. No matter how inconvenient it is we must establish our own version of a Truth and Reconciliation Committee.
"although I'm not a lawyer,
"although I'm not a lawyer, my sense is that successful prosecution would be extremely difficult. The result would quite likely be a long, gruesome, process that would mostly disappear from public view except toward the end, when nearly everyone is acquitted."
I don't suppose you remember the names Lynndie England, Charles Graner, Ivan Frederick, Jeremy Sivits, Roman Krol, Armin Cruz, Javal Davis....
Context and Perspective...
Defining “torture” puts one in a very gray area. Most of us associate torture with mid-evil dungeons, spy novels, and long-term physical damage. Kneeling on rice, sitting in a box with a caterpillar, slamming one against a false wall, and having pictures taken in embarrassing positions sounds more like my college fraternity initiation. I even had water poured on me while blindfolded. Guess I better consider charges of torture…but I digress.
Consider the national mood in 2002. We had just lost 3000 Americans to Islamic extremists. They used box cutters to slit flight attendants’ throats. They flew aircraft fully loaded with fuel into (or intended to) national landmarks. They wanted to kill as many of us as possible. They did not follow Geneva Convention rules. They operated as an independent cell. The question on everyone’s mind, including the President, his staff, and Congress, was “Who else is out there and what’s next?”
If we were confronting a normal land or sea based army, we could detect troop and material movements with satellites, radars, or sonars. But in a war with people who have no rules but use our rules to their advantage, who meld into our national patchwork, we had to use other means of intel gathering, including interrogations of captured terrorists.
In the context of the time, interrogation techniques that seem harsh by some in today’s light seemed inconsequential in comparison to the national security risks faced in 2002 (and even yet today).
To whom did these techniques feel “ok” given the times and circumstances? Members of Congress were briefed and in fact given demonstrations of these techniques that today people are decrying. One of those Congress people was Nancy Pelosi. If our interrogation plans were so awful, where was the hue and cry then? Context, people. Also...if we prosecute, will we also include Nancy and other Congressional members, including Democrats, who knew of and approved these techniques?
Lastly, reports indicate only three high value captives were submitted to the “harsh interrogation” measures, including the man that masterminded the murdering of 3000 people. We did not use these techniques on innocent people or those that may not have known anything of value. We did not permanently maim or kill any captives. These interrogations did lead to information that prevented similar cowardly attacks on U.S. soil and innocent people.
Read the following WSJ piece for more balanced opinion…if you are really interested in objective thinking and considering others’ views to help you make better judgments.
http://online.wsj.com/article/SB124044188941045415.html
What?
Barry Beaver, you are a freakin' nitwit. First, the idea that our national security is so tenuous that we have to torture people to keep from perishing is leftover propaganda from the Bush years. We lost many more American lives in the Iraq war than on 9/11. Not to minimize the event, but it was not an act of war - it was a horrendous act of criminal insanity that shook our collective sense of security. We survived, just as we survived Columbine and Oklahoma City. Second, if Nancy Pelosi was an accomplice in conducting a campaign of torture she should be prosecuted. This isn't about party politics. It just happens that one administration went insane in trying to remake the world to fit the neocon image of democracy. Peace through war. Justice through criminal acts. Third, comparing torture with college fraternity initiations doesn't make it acceptable. Tortured prisoners didn't choose to join the fraternity, and besides, many fraternity initiation rituals meet the definition of torture and have been banned for that reason. Stop telling people that their opinions aren't balanced if they don't buy into the crap that comes from Fox News, Rush Limbaugh, Newt Gingrich, William Kristol, etc. etc. Get a clue.
Tolerance levels are low!
Lawyerfan…your display of intolerance and name calling speaks to your narrow world-view and concrete-like opinions. Regardless, I feel obliged to respond to your thoughts and to do so with respect.
Comparing loss of life numbers in a combat zone and the numbers of innocent flight crews, passengers, and victims on the ground by spies or saboteurs is not equivalent. Those innocents killed on 9/11 did not sign up or volunteer to put their lives at risk. They had no fighting chance. They had no opportunity to defend themselves or take that battle to the enemy. And yes… 9/11 was an act of war (and not the first one) in a war declared by Islamic fascists and whose volunteer soldiers are well financed, well motivated, and utterly evil and disgusting by their acts.
Contrary to what you said, each of those terrorists did decide to join the game. They volunteered just as much as I did for initiation or US Military personnel do for SERE training.
The same goes for those that lay road-side bombs or blow themselves up in crowded market places. These types move under the radar – literally. They fight a non-conventional war, a war the Geneva Convention Protocol does not directly address. Spies (combatants caught out of uniform) and saboteurs have little protection under the Geneva Convention. When they assume those roles as non-uniformed combatants, they know from history they will receive little mercy when captured. These are not choir boys – they deliver no quarter and expect none in return.
My comments for “balance” related to how we perceive war and the related displeasing side effects. When faced with a land invasion of Japan that planners estimated would cost 1 million US lives, we bombed Hiroshima and Nagasaki. Was that right or wrong? Of course, we hear little about the lives lost during Tokyo or Dresden fire bombings in which far more civilians lost their lives than from atomic bombs. How do you feel about night vision glasses and infrared weapons sighting systems? Is it fair to use this technology to shoot and kill people laying road side bombs at night? How about listening in on radio or cell phone transmissions to ID “bad guys” and then targeting a drone’s very accurate missile on them as they unwittingly drive their vehicle down a winding Afghan road – isn’t that invading their privacy?
Some one makes these calls. Not you, not I. Some one made a call on what is torture and what is not. Listening to heavy metal music is torture to me as well as water dripping on my head. Apparently for some it’s being in a confined space with a caterpillar. I’ve had my face slapped and it just pissed me off! I’ve been slammed into a wall – no big deal. Now, if we have been using the dungeon in the Tower of London… that’s something else…but I don’t think we have.
That said, are we squeaky clean? Probably not and if this were a perfect world with no terrorists trying to kill us, we could disband all our armies, navies, and intel gatherers, go home, and have a beer.
Lastly, I did not say someone’s opinion was unbalanced… what I suggested was to read differing views on a subject to better determine and solidify your position. That is why I read MotherJones and peoples’ contributions such as yours.
And I did get a clue…it was Colonel Mustard with a pipe wrench…
Yes, what we should do is
Yes, what we should do is this-
(Obvioulsy politcally correct) when we capture any of their soldiers, we should tie them to the bumper of the jeep, and drag them thru town until there is nothing left.
Thats what they did to our servicemen, but I dont hear any cries about that.
So it MUST be OK.......
Wake up PEOPLE, your in the jungle.
Are you deaf?
If you didn't hear an outcry over the dragging of one of our soldiers through the streets tied to a jeep, you must have been the only person on earth who missed it. And if you don't understand why we don't do things just because other people do, you ought to go back to school and study a little American history. We aren't empire builders, like the Romans or the British or the French or the Spanish were. We stopped persecuting people for their religious beliefs around the middle of the eighteenth century, unlike the Russians, the Chinese, the Germans, etc. etc. Torture is contrary to our belief about the dignity of the individual (See Bill of Rights, Eighth Amendment for example). We even allow nutjobs who think torturing people is okay to express their opinions, no matter how irrational. We just don't let them do it. Or do we?
No leg to stand on .... another reason to prosecute
If I were a leader in China or North Korea I would be falling down laughing. The US is clearly hypocritical if it expects anyone to listen to our talk of human right and universal freedoms. If we can't deal with clear incidents of torture by US citizens in US controlled facilities when we are under treaty obligation why should anyone listen to us criticizing about something happening in another country?
But let's be honest the US/CIA has supported death squads in Central America, OKed killing of elected leaders (e.g. Allende in Chile), and brought down democratically elected governments (e.g. Iran in 1952) so we are being a bit more honest by doing the dirty work of torture ourselves.
Torture Prosecution
Using your logic, the commanders of Nazi concentration camps would not have been subject to prosecution - only the leaders of the Nazi party would have been subject to prosecution.
I believe that if it were another country that engaged in torture the US would support prosecution of everyone involved from the highest up to the lowest man on the totem pole.
In this case there were many levels of people who had the opportunity to say "no I won't do that, it's wrong." I'm not saying that this is an easy choice, but civilization depends on individuals who are brave enough to say no.
The fact that prosecution is costly and time consuming is not a valid reason for not prosecuting everyone involved.
torture
It seems that Obama is trying to use a band aid to cure a cancer! I hope we will remain vigilant and demand that those at the top giving the torture orders will be brought to justice first!
Personal Moral Vacuum
First: That there is even a discussion entertained regarding TORTURE is in itself emblematic as to how far the United States Government and Population has descended into depravity!
Having served as a combat soldier, having personally captured 2 POWs, and treating them both as "human beings despite our enemies status", and also having the very personal experience of pain and loss of 3 of my LRRP team members captured, tortured and murdered in Vietnam, I have quite strong feelings regarding this subject.
TORTURE is WRONG, IMMORAL and INEXCUSABLE, NO EXCEPTIONS!
google these 2
1. Nuremberg Trials,
2. Nuremberg Trial; Japan's Leaders Were Also Tried - The New York Times
ALL INVOLVED ARE TO BE PROSECUTED TO THE FULLEST EXTENT, PERIOD!
Are we become what we supposedly fight, bleed, cry and die to prevent or eradicate?!
NEVER AGAIN, has the relevance of a cheap political motto or bumper sticker, I am ashamed of the US Government and a great many of US citizens!
Sgt. Allen G. Riegel
US Army (ret) WIA
HQHQ LRRPs
3rd Bde, 25th INF
VN Jan. - Sept. 67
World-class citizens working for a Better Tomorrow and a Better World, Today and Everyday! © 2008 Allen G. Riegel
The masses are asses, you can lead them to water, but you can't make them think. ©2005 Allen G. Riegel
Ali Lama "PEACE"
Torture trials
Yeah, you're right. It pains me to agree with you as much as it pains you to say it. The process of trying the little CIA fish in this dirty pond will become a political tool in itself no different than the torture they would be accused of; working all too well in the end for the wrong side.
What is needed, however, I believe, is a CIA scapegoat(s) to take one for the team. The speedy prosecution of this scapegoat(s) would protect the rest, while opening up more classified information to the justice department so those who gave the orders can more easily be brought down. I personally would be happy to see Bush get off completely, as history--given the arresting of his entire cabinet--will judge him far worse than today's Congress ever could. I want to see Addington, Rice, Gonzales, Rumsfeld and Cheney be disbarred, do some serious time and be shamed for life, and in that order.
Make no mistake, however, Obama's place in history will be defined as much by this as anything else he does the next four years. We have spent so much time comparing his fate to FDR for obvious economic reasons, but he needs to keep it real: this crime is BIGGER than Watergate ever thought about being, as breaking into a hotel had nothing to do with Vietnam the way breaking International Law and the Geneva convention had everything to do with the second Iraq war. If Obama allows himself to become the next Gerald Ford over this issue and effectively pardon all of these guys before any trial takes place, the Republicans will not thank him for it. They will use it and the economy against him to make him another Carter. And the Constitution will become a footnote in modern American Imperial history--an empire that is already in decline.