The American Justice Dept. has advised reinvestigating some instances of torture, and Slate published an iconoclastic article claiming that restricting the investigation to those who overstepped what the Bush administration deemed legal is almost worse than no investigation at all. I beg to differ.
First, my usual list of caveats: I grant that Obama’s choice not to pursue those who justified and tried to legalize torture by fiat is a move meant to preserve a thinning patina of bipartisanship and his thinning political capital. Clearly, it’s perverse that a leader would have to weigh healthcare reform and torture policy, as if there was a real connection between the two. A world without torture would also be preferable, and we’re not going to get there by protecting those who pushed for it. Protecting the directors of heinous activity also doesn’t set a very good example when trying to cajole Iranian, Burmese, Sudanese, North Korean or other regimes into being more decent to their own citizens and others. Instead, it sends a message of “our country right or wrong”, which is truly a vile form of patriotism that vile people elsewhere are only too eager to copy.
Still, I think that investigating and trying those who overstepped the Bush administration’s own guidelines (and not those who wrote or followed those guidelines) has merit for two reasons and a half reasons.
1. The Bush administration allowed some pretty nasty stuff, including “walling”, “the facial hold”, “wall standing”, sleep deprivation and waterboarding to name a few. Like the techniques used in the medieval inquisitions, many of these techniques are meant to induce whackloads of pain and discomfort without drawing blood or leaving lasting evidence. As I understand it, Holder wants to go after those who exceeded what the White House thought was appropriate, which means these people were doing things I don’t even want to consider. By prosecuting them, you’re at least likely to get the worst of the bunch.
2. The good ol’ Nuremburg defence gets its name because many Nazi war criminals claimed to be “just following orders” at the post-war Nuremburg trials to absolve themselves of guilt. The fourth Nuremburg principle states that this defence won’t fly (#2 could have really interesting implications for this case). Even if you are ordered in a chain of command to commit a crime, it is incumbent on you to refuse and do the right thing. Now, if my superior officer were a conscripted Nazi officer, I’ll grant that he is liable to make mistakes about what is right and wrong. But if the guidelines of right and wrong are coming from the duly appointed Attorney General, Vice President, or the President himself, and if I know that several legislators are aware of these guidelines, can I not assume that they’ve passed a test of legitimacy appropriate to the situation? Investigating and trying those who set the limits also implies that the rules are invalid, and even those who followed the rules are potentially guilty. This totally screws up the distribution of responsibility in a democracy. The intelligence agency isn’t there to make policy, they’re there to execute it. If they can’t trust the guidance coming from their legitimate superiors, where the he!! are they supposed to turn? What then is the proper indicator of acceptable conduct? What responsibility do their duly officiated superiors bear?
2.5 This is only half a reason because it’s instrumental rather than principled. The American armed forces get seemingly immaculate support. Aside from screw ups like My Lai, atrocities get very little press, and the army can do no wrong. “Support the troops” is a very powerful American mantra that can determine whether one is American or (horror!) “unAmerican” (like me, I suppose). The intelligence services, on the other hand, are like the plumbing in your house or the electric system in your car: they work best when you don’t hear about them. Lately, the CIA has taken serious heat for not foreseeing or forestalling terror attacks, for fabricating evidence to support dastardly purposes, and now for using cabinet-sanctioned interrogation techniques. They get beat on for screwing up, but you don’t hear about their successes. Although I disagree with many of the practices and powers of the CIA and their associated institutions, we would have to invest something like it if it didn’t exist. It serves a valuable function that many of us enjoy for next to nothing. Maybe they’d be less keen on throwing strangers into walls and scaring the hell out of people if they got more credit for what they do right.
Leave the garden variety of moral decrepitude alone for now and go after the out and out heinous. There’ll be time for the small-fry later, if there’s still adequate bloodlust to punish them.
