Warnning: as in my prior posting on the torture memos, this positing is not on taxes or budgets or the economy, but it is, I aver, still relevant to our quest for understanding the requirements of democratic egalitarianism. The torture memos continue to create an uproar.
First, the President suggested that it would be "retribution" to prosecute CIA interrogators for violating the U.S. and international laws against torture, since they were simply following orders that were accompanied by legal memos from the Department of Justice raionalizing torture as not torture. Maybe that is a reasonable position for Obama to take as a starting position, but of course it is the DOJ's responsibility to decide whether crimes have transpired and if so who to prosecute for them. The independence of the DOJ from politicization in response to White House priorities is important--that is, after all, the reason AG Gonzalez had to resign, because he did not maintain that independence. Let's hope AG Holder follows the investigation where it leads, even if that means prosecuting some CIA interrogators--especially if they went beyond the supposed boundaries drawn by the memos, and even if it means prosecuting Bush administration officials--especially if they took an active role in furthering torture by papering over the reality with legalese.
Second, the White House Chief of State on ABC's "This Week" on Sunday suggested that no one should be held accountable for "devising" a policy that permitted torture, but now the White House has pulled back from that position. See Branigin, Obama Open to Probe, Prosecutions of Top Officials over Interrogations, Washington Post, Apr. 21, 2009.
- At the least, those CIA interrogators who apparently went well beyond the limits set out in the torture memos should be prosecuted. They don't even have the apparent cover of the purportedly legal policy position to support them. For example, we now know from the release of the additional torture memos that one of the Bush administration's detainees was subjected to waterboarding--acknowledged as torture since its invention in the Spanish inquisition--for 183 times in one month. That's six times a day for 31 days. That's way more than a limited method sparingly applied, as suggested in the memos was required to come within even the memos' highly questionable definition of torture. See, e.g., Shocking the Conscience: The Bush Administration made waterboarding almost routine, Washington Post, Apr. 21, 2009.
- Additionally, those who "formulated" (in Obama's word) the torture policies--perhaps Bybee, Yoo, and Bradbury within the Justice Department's Office of Legal Counsel, and perhaps Addington and Cheney or others within the Bush Administration White House--should also be investigated and prosecuted. Obama admits that "this is going to be more of a decision for the attorney general within the parameters of various laws, and I don't want to prejudge that." Id. He also admits that the memos "reflected, in [his] view, us losing our moral bearings." Id. The Office of Professional Responsibility is already reviewing those legal counsel who prepared memos: if it determines that the memos are what they appear to be--a papering over of violations of the Geneva Convention--those who wrote the memos or supported their being written with that slanted view should be held accountable, within the systems for admitting counsel to the bar, for allowing judges to have tenure for life subject to impeachment, and for determining who should be prosecuted for criminal offenses. That OPR report, needless to say, will be very important.
Third, the potential targets of such an investigation appear busy, still, trying to justify the abuses. Former vice president Cheney has said that he wants more memos released, so that Americans can see "the success of the effort"--i.e., that using torture was successful in revealing useful information. Apparently, he still doesn't get it. See, e.g., With interrogation docs out, Cheney asks Obama to now release secret memos on what those techniques discovered, LA Times, Apr. 21, 2009. The Geneva Convention against torture and the US position against torture aren't in existence because of its inefficacy, just to make sure that nations don't waste their time and resources on means of extracting information that aren't "useful." While it is true that most evidence points to torture's not being effective in gleaning truthful information, torture is forbidden precisely because of the worry that unscrupulous nations would resort to torture because they think it might be "successful" in getting useful information. See, e.g., the comment on the Cheney interview report that says "If torture stops another 911...I say let's torture!!!!! Al Queda and the Taliban cut off heads and brutalize the innocent!" It is that kind of attitude that would result in torture being commonplace, instead of being practiced by despotic regimes or terrorist organizations. Of course, maybe Cheney is also defending the "success" of torture (under the euphemistic label of "enhanced interrogation techniques") because he fears that he might be one of the likeliest targets of prosecution, if we ever have the guts to hold accountable those who were most responsible for this torture policy.
Recent Comments