Prosecuting Torturers

So, we have reports that President Obama is backing a suggesting by Attorney General Holder to appoint a special prosecutor. The special prosecutor will go after people involved in the CIA's use of torture to interrogate prisoners, including the decidedly unloveable and villanious Khalid Sheik Muhammed. KSM wound up getting waterboarded more than 100 times -- perhaps as much as 180 times.

Let there be no doubt that waterboarding is torture.

At the same time, let there be no doubt that KSM is a bad, bad man who deserves severe punishment.

It might be argued that without the benefit of hindsight, torture of these isolated individuals was thought necessary. First we were told that it might be necessary to torture in order to combat an existential threat to the United States. Then we were told that torture had been needed to prevent ticking time bombs from going off. Finally, we were told that torture and torture alone would give us certain kinds of "actionable intelligence."

Well, now we know that despite having moved the basket lower and lower to the ground, the ball still never made it into the hoop. Torturing these scumbags did not generate a single piece of actionable intelligence. No ticking time bombs were ever found because there were none for the bad guys to detonate. The United States continues to exist and function quite nicely.

The willingness to disregard the rule of law and torture our enemies, however, is an existential threat to our nation and our way of life. We disregarded treaties to which we were party and which promise that if a soldier is ever captured by the enemy, he will not be tortured. Having disregarded our obligation to not torture our prisoners, what right do we now have to expect that if one of our sons or daughters is captured, our enemies will not torture them? We have laid forfeit our moral high ground on that issue.

I might be charitable and suggest that there were, and are, people who sincerely believed that torture was necessary to combat existential threats to the nation. I am not so charitable as that, however. Those people -- an embarrassing number of them Republicans giving voice to their opinions by way of applause during the 2008 Republican primary debates -- clearly want our interrogators to torture. I do not believe that they reasonably think that those enemy prisoners, or their still-at-liberty compatriots, represent an existential threat to the country. I believe they want the torture to happen because they think the victims of this treatment somehow deserve to be tortured. They believe that torture is justice.

And of course, it is not. At best, torture is vengeance. KSM certainly is an appropriate target for vengeance. Justice, however, is more than vengeance -- indeed, if you look at our system of justice you will find that opportunities for vengeance to enter into the equation of how an accused or even a convicted person is treated are minimized. For very good reason.

Justice, after all, is not merely a question of deserts. What one deserves is a part of it, to be sure. But justice also necessitates an understanding of ends and means. It inherently involves a result that at least considers a maximal social benefit. It involves questions of inalienable individual rights. Justice is complex. It is reasoned and reasonable. It is not based on vengeance; to the extent vengeance is part of the equation at all it is a small part.

Do we (meaning the government of the United States of America) torture bad, bad men who deserve severe punishment? Let the answer to that question be a resounding "no." The badness of the actions of our prisoners should have nothing to do with the moral decision to torture or not. The moral price of torture is paid by the torturer and not the torturee.

Now, although it seems that this sort of thing was only done to a small number of our prisoners and the number of people involved in doing it were small, the question is now what to do about it. The question of the day is whether President Obama and AG Holder are right to set the prosecutions on autopilot and let the chips fall where they may. This decision has apparently led to a profanity-laden screaming fit in the White House by CIA Director Leon Panetta. Panetta is simply trying to protect his people; his interest in the subject is vested even though he is not personally on the hook for anything.

My question is how far up the food chain will the prosecutions go? It is ever the case that corporals and sergeants are getting punished for decisions made by colonels and generals. That ain't right. We've got a lot of people involved in the decision to torture because, like any bureaucracy, our government spread around the decision-making and implementation of this policy to a bunch of people. In this target-rich environment, we have the following potential defendants from whom to choose:

• Interrogators who actually did the torture;
• Head interrogators who thought it would be a good idea to torture;
• Section chiefs who put in requests to their superiors about whether they could torture or not;
• Psychologists who tried to figure out the best way to torture and get the desired results;
• Bureaucrats who passed along the requests and information without lodging objections to what they were seeing;
  
• Lawyers who put a legal gloss on the request;
• Politicians who either explicitly or implicitly told the lawyers to find a way to get a legal gloss on the request;
• The President, whose "unitary executive" theory of Constitutional law would lead us to believe that all of the above happened under his personal authority and responsibility.
  

The further down that list you go, the more likely you are to run into legal immunity issues, immunity issues that are there to give policy makers "room to err" so as to also permit them discretion in which to govern effectively. But the further down that list you go, the more likely a prosecution will actually do some good down the road in terms of defining torture as actually "off limits" for future policies, future decisions.

My gut reaction is that the immunity doctrines serve to shield the most deeply morally culpable actors here. Not that I would be fond of the kind of people who would do the hands-on work of torturing, but at the end of the day, I think their degree of moral culpability is diminished substantially by virtue of having been informed that high-level government officials and lawyers had considered doing this and agreed to it in advance. If they were told by a lawyer "Yes, this is legal," then that's the lawyer being willing to step up to the plate and taking the blame. If you don't have the balls as a lawyer to make a call like that, you need to find a new line of work.

The matter of the appropriate punishment is something else. As I've written before, I don't think that those lawyers should go to jail. They should, however, be held in disrepute. A loss of a license to practice law is a pretty bad punishment for a lawyer; in the case of one of them (Jay Bybee), he has a seat on the Federal bench which Congress can take away from him if it chooses to impeach him. It does not mean an automatic loss of job, either; most of them are now in academia (e.g., John Yoo, professor of law at Boalt Hall) and you do not need an active law license to teach law. But it would be a serious rebuke. The point is that a conviction does not have to automatically lead to incarceration; there are other kinds of punishment that are in fact quite serious and also permissible, if we are willing to use them.

So if there are to be prosecutions for torture, let it not be the guys at the bottom, who were told that they were acting legally. For them, the penalty should be on their consciences. And let it not be the President and his closest advisors; while they may bear great moral culpability as well, we do need to allow discretion and room to err for future problems. Let it be instead the people who were faced not with questions of immediate conduct but rather with the formulation of policy. Let them defend themselves by pointing the blame upstairs, if they can; let them explain their silence in the face of the proposal to create a policy of such great moral abhorrence as to stain, forever, the good reputation formerly enjoyed by the United States of America. Let it be a reminder to all who serve in the future that they do not check their ethics at the door when they enter public service.