April 20, 2009

Torture Prosecutions

I've not written about the torture memos yet. That's because they leave me deeply conflicted and I've still not reached a complete enough mental resolution of the facts to have a solid opinion.
Not about the torture. The news that Americans, acting in the name of our country, waterboarded a man 183 times -- no matter what a scumbag he was, and indeed we are talking about a Truly Awful Person -- it is a matter of deep personal offense and a moral atrocity that cries out for some form of remediation and punishment. One time was too many. I trust that by now, Readers will appreciate that I have no love whatsoever for the prisoners, who are human garbage and if anyone did deserve to be tortured, it would be them. It's just that the moral standards of those who call America their enemy are completely irrelevant to the question of how Americans ought to comport themselves.

Nor about the release of the information. I do not believe that we have told anyone that we tortured our prisoners who did not already believe it to be true. We are no less secure now than we were before the memos describing the clinical, high-level memoranda putting a legal gloss on a moral atrocity were released. And while it is unpleasant to consider, we are better-off knowing the truth -- Americans tortured prisoners, and high-up governmental officials, up to and including the President* sanctioned it. Again, the wrong cries out for a remedy.

I have opined, and I stand by that opinion, that if we have people who need to be punished for this, it is our job to do it and not anyone else's. But who to punish? And how?

The President has taken prosecution of the interrogators themselves off the table. This means that the individuals who actually did the work of tying a human being supine to a table, and those who poured buckets or hoses of water on his face until he reached a point of near-drowning, and permitted him just enough time to breathe actual air to permit his continued survival, are not going to see the inside of a courtroom. The President's reasoning is that these people relied upon the advice and counsel of lawyers and their governmental leaders who had put considerable thought into whether this was an appropriate thing for the interrogators to do, and they should be entitled to do their important jobs after their higher-ups assured them that they were acting within the law.

Not bad reasoning and a defensible policy. But as I recall, "I was just following orders" was not considered a good excuse at Nuremburg. Which is not to say that waterboarding Khalid Sheik Mohammed is the same thing as exterminating millions of Jews. But it is to say that no one is ever given a complete moral pass simply by virtue of the approval of a higher-up. At some point, there gets to be a a time that you should step back and say, "No, I won't be a part of this." Which leaves the decision somewhat unsatisfying.

Well, what about the higher-ups who gave the orders? The higher up one goes, the less one gets to hide behind the legal opinions of one's superiors. When you get up to guys like Bybee and Yoo and Steven Bradbury, you're at the sub-Cabinet level. These guys reported directly to the Attorney General, who in turn reported directly to the President. Now, we need to leave these kinds of people considerable discretion to do their jobs. And we can't prosecute government officials because they make mistakes or do things that turn out to be bad decisions. If we did that, we'd never get any qualified people to hold these jobs, and whoever did do these jobs would be so tentative and cautious as to be ineffective. That is why there is qualified immunity to protect these folks.

Qualified immunity, by its very nature, exists to allow discretion -- room to err -- in cases where there are important and difficult questions of law confronting people who have to make decisions. It isn't fair to hold a police officer liable for making a bad call in a crisis situation about whether to use handcuffs or plastic ties to control a violently-struggling arrestee. But a lawyer sitting in an office is supposed to have the time and luxury to research these questions and come up with the answer to a difficult question like that. If we're going to grant that an interrogator cannot be expected to know all of the relevant Constitutional law and legal doctrines that governs his conduct, we have to deal with the fact that a senior lawyer, with a staff of crack researchers reporting to him, tasked with answering that very question, will do so.

And here, reading the memos, we see not a neutral evaluation of the issue but an outcome-determinative one. The Attorney General's Office, in other words, acted as an advocate for torture rather than trying to analyze the issue. One gets the impression that someone who, in putting these things together, said something like "Um, but this is torture, guys, and we just plain shouldn't be doing it," was told "That's an interesting opinion but not the one we're getting paid to write. Now go back and reach the opposite conclusion." The problem is, the CIA was not the Justice Department's client and they weren't being paid to tell the client what it wanted to hear. The United States was its client and they were being paid to provide good counsel to those acting on its behalf.

Again, it's important to "leave room to be wrong," even at this level. The question is, when do things get to be so wrong that someone should have pulled the plug? That, in my mind, is a very difficult question to answer. That the answer was ultimately wrong is not a hard call for me. We aren't talking about "ticking time bombs," and we aren't talking about the panicked days of early October 2001. But it's easy to see how a bunch of these lawyers -- political appointees and those who worked very closely with them -- felt some level of groupthink and political polarization. And in that circumstance, we want to have some way for someone to step out of the box and blow the whistle. But it takes moral courage and self-awareness to do that, and these are, unfortunately, rare characteristics and a lot of political pressure can squeeze large measures of those traits out of people who might otherwise have them.

So, we had no profiles in courage in the Justice Department. It doesn't seem quite right to prosecute someone for not having remarkable degrees of moral courage. But at the same time, it doesn't seem right to not prosecute someone for setting in motion a chain of events that led to torture.

That's my conflict. I think I'm coming around to wondering what law, exactly, these guys broke. Was it treason? No. They did not directly give aid and comfort to our enemies (indeed, quite the opposite is true). Debatably, they did weaken the country in that they handed our enemies a valuable recruiting tool and made it less safe for Americans who wind up captured by bad guys. But that's not treason, that's bad policy. Perhaps it's obstruction of justice. That seems like kind of weak ketchup for torture, though. And it also doesn't seem like an exact fit. It was a violation of the Geneva Conventions, but as the memos point out, no criminal or civil cause of action is created by our adoption of those Conventions (and like most of the Conventions' signatories, we haven't adopted all of them, anyway).

So maybe there is no crime to charge these guys with. I am, understandably, chary at the prospect of incarcerating lawyers who did nothing more than wrestle with difficult concepts and maybe reached the wrong result through a combination of pressures. But if we don't prosecute them, either, then what? We leave these guys to the court of public opinion in the hopes that they will be humiliated and that will be enough?

Well, that won't work, either; there are those who will fete them and their achievement, call them heroes and celebrate them. I dismiss as non-serious those who would suggest that waterboarding is not torture. Of course it is -- it was designed to induce the sensation of drowning and imminent death, and to capitalize upon the fear that produces. So too is preying upon a prisoner's fear of insects, something else that is being laughed off by torture apologists but which was pretty clearly intended to be a massive mindfuck by the CIA. But that doesn't mean these sorts aren't out there (writing editorials for national newspapers, among other things), and a lot of them have money and political influence. I also dismiss as non-serious the protest raised by former Vice President Cheney that the memos produced intelligence successes. But there are those who will be moved and influenced by these non-serious arguments. Still, doing nothing seems like a remarkably unsatisfying conclusion.

We could create a Truth Commission that would not prosecute but would expose all of the relevant facts and allow the political winds to shift and blow as a result. Well, that's obviously a bad idea -- this would expose more sensitive facts and we're at about the limit of what should be out there anyway.

We could appoint a Special Prosecutor to go after them. Special Prosecutors have a history of actually finding what they're charged with finding, and not exercising discretion about whether a prosecution should proceed or not. So this is effectively the same thing as launching a prosecution direct from the Justice Department -- with the added disadvantage that there would be no political controls or checks on the Special Prosecutor. The Special Prosecutor is the legal equivalent of a fire-and-forget missile, and once launched, there's no stopping her.

So that's my conflict. It seems dangerous to charge these guys because it leaves a bad precedent, it denies them the "room to be wrong" that is essential to serving in governmental office. But it seems unjust to do nothing, and there is no reason to believe that doing nothing will produce results that will punish and not reward this bad behavior.

Maybe this is the sort of thing a Presidential pardon is supposed to resolve. But there's no need to issue that just yet. Maybe we need to learn more about what was going on, hear what the authors of these memos have to say for themselves. Gathering more information in the face of an uncertain issue is potentially prudent, so long as we don't allow it to turn into paralysis by analysis.

Now, if there is to be a trial, the nature of the charges will require dealing with a lot of classified evidence. Maybe a non-public military tribunal is the way to go to deal with that issue. That would be ironic.

UPDATE: There is a great set of comments on these points going on at League of Ordinary Gentlemen. Many thanks to Mark Thompson at the LOG for the link.

* Note that the documents reviewed by President Bush used significantly more sanitized language than are discussed in, for instance, the chillingly specific Bybee memo.

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