Certainty About Torture

Certainty About Torture


First, let me say that I respect Sonny Bunch. A lot. I rarely agree with Sonny, but he is clearly and genuinely interested in engaging those with whom he disagrees.

That said, the posts (and subsequent responsive comment) with which E.D. and Mr. Schwenkler take issue is emblematic of something that has been particularly frustrating to me over the last several days or so. Specifically, I’m frustrated at the certainty with which proponents of waterboarding and various other procedures outlined in the OLC memos proclaim that those procedures were clearly “not torture.”

The fact is, whatever one thinks of the legal acumen demonstrated (or, more accurately, not demonstrated) in the OLC memos, and especially the Bybee memo, they do not provide a basis for concluding that waterboarding, et al – especially when combined in one continuous program – are “clearly” not torture. The Bybee memo itself states quite explicitly that waterboarding in particular is pretty damn close to being torture, going so far as to say that it is a “predicate act” for a finding of torture. So if you’re going to rely on the Bybee memo as an accurate depiction of the law (which it isn’t – seriously, I’ve seen associates fired for less shoddy memos), then at the very least you have to acknowledge that these actions come pretty damn close to being torture, and that there is hardly anything outrageous or unhinged about calling these acts torture.

In other words, if you’re going to rely upon a piece of legal analysis as proof that something is clearly “not torture,” then you probably shouldn’t rely upon a piece of legal analysis that (shoddy as it may be) concludes that said something is pretty damned close to being torture.

Cross-posted at the League of Ordinary Gentlemen.

  • TerenceC

    Nice post Mark. I have mentioned on a couple of other entries that in my opinion all the facts are unclear as to what exactly transpired regarding torture of detainees. And that there is a sufficient amount of evidence to warrant further investigation so that we can get all the detail. I would love to see Holder appoint an independent counsel to determine just exactly who knew what, when they knew it, and who the puppet masters were.

    Torture in any way, shape, or form is unacceptable under international law, as well as American law. I don’t believe an independent counsel would represent a challenge to national security with any of it’s findings. If anything it would show American’s (and the rest of the world) that no one is above the law, especially those who believe they are. However, without some level of detailed investigation the general public will never know the facts and will be forced to rely on second-hand interpretation from a government insider who may or may not have their best interest in mind.

  • Terry

    I think the question should be, if these are not torture and you think these are even morally correct, should this type of discipline be used to punish high school students? Should they be used on drunk drivers who killed an innocent? And if not, why not?

  • http://thecrossedpond.com/ Brad Porter

    That’s part of what I don’t understand either. The (very) small minority arguing that all of this was patently legal nevertheless are strictly opposed to throwing sunlight on the matter. Why not? If it goes to trial and was as obviously legal as they say, they will be vindicated and their position ultimately given the final say. If, as Cheney asserts, it was necessary, yielded valuable information, and ought to be part of America’s war-making and detention program, than why selectively ask to declassify some bits but work so hard over so many years to suppress others, up to an including clearly skittish interrogators destroying evidence of ongoing investigations?

    Here’s a very telling tidbit today about the “good faith” of those seeking to give their legal take on torture. Via Andrew Sullivan, quoting Philip Zelikow:

    At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo.

    Anonymous Liberal articulates what can be the only reasonable read of that action.

    The only reason to collect and destroy all copies of this memo would be in order to preserve, for as many Bush administration officials as possible, a potential defense against later prosecution. If the extent of these activities ever became public and investigations were commenced, the White House wanted to be able to argue that everyone involved relied in good faith on the advice of counsel. That defense would be severely undermined if it could be shown that these officials were warned, by a lawyer of Zelikow’s caliber and rank within the administration, that the legal arguments they were relying on were poorly reasoned and unlikely to be sustained by a court.

    Indeed, there had been further internal dissent on the matter—the JAG corps, the CIA lifers, etc.—who expressed their profound dissent on the matter, and whose views were suppressed or shouted down, even internally. There is the litany of evidence that was clearly consciously destroyed pending investigations into the abuse of, say, Jose Padilla, or at Bagram and Abu Gharib. There is the residual desire, still today, to not just prevent trials and investigations on this matter, but to actively “move past” it in the interest of “healing” or whatever.

    These are not actions taken in “good faith”, nor actions indicating an executive structure that believed what it was doing was clearly legal.

    I agree with a commentator in another thread that suggested getting convictions against the architects of the torture program would be very difficult. However, if the investigation being conducted by the Office of Professional Responsibility comes back suggesting that the OLC lawyers and peripheral actors acted in negligence and performed severely poorly in their duties and reached conclusions which most reasonable people would conclude to be erroneous, and with the added evidence of actions taken, systemically, to suppress dissent, I wonder what the pushback will be towards a criminal investigation then?

  • http://thecrossedpond.com/ Brad Porter

    I think the question should be, if these are not torture and you think these are even morally correct, should this type of discipline be used to punish high school students? Should they be used on drunk drivers who killed an innocent? And if not, why not?

    The aforementioned Phillip Zelikow:

    The underlying absurdity of the administration’s position can be summarized this way. Once you get to a substantive compliance analysis for “cruel, inhuman, and degrading” you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.

    In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

    But don’t take his word for it.

    Cassel: If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?

    Yoo: No treaty

    Cassel: Also no law by Congress — that is what you wrote in the August 2002 memo…

    Yoo: I think it depends on why the President thinks he needs to do that…”

  • gerryf

    well, in fairness to some of the commenters here, I don’t think anyone is defending these actions–I think, rather, they are saying that they “legally” do not rise to the level of torture.