Tuesday, April 21, 2009

Dealing with Torture

Nobody seems entirely satisfied with the Obama administration's policy on past acts of torture committed by the CIA. The right attacks President Obama for making the torture memos public. The left attacks him for forswearing the prosecution of people who committed torture. In this case, not only are both sides ignoring the political realities that compel Obama's sensible policy, they are also both ignoring legal realities.

The urge to prosecute is of course understandable. The Bush administration's decision to use torture on terrorism suspects may be its most shameful act. It tarnished this country's ideals, and it puts Americans in danger. But people who want to punish the offenders are forgetting some important facts. Torture was approved at the very highest levels of the Bush administration, and those officials were careful to obtain legal cover for all of the interrogation techniques that were practiced by the CIA. That was the whole point of the torture memos, which constituted official opinions by the Office of Legal Counsel that basically re-defined torture, and specifically upheld the legality of the techniques that the CIA employed. These very memos make it almost impossible to prosecute anyone who relied on them, at least under US law. Some interrogators could potentially face legal consequences under international law, but it seems unlikely that they could be successfully prosecuted in the United States unless they went beyond what the Office of Legal Counsel authorized. It also seems unlikely that the lawyers who authored the memos could be prosecuted. Reprehensible as these opinions may be, they probably only constitute bad legal advice, which is generally not a crime. I'm not saying that the authors of these memos should face no consequences, but criminal prosecution seems unlikely to succeed. Therefore, President Obama was giving up almost nothing by saying that individuals who relied on these opinions will not be prosecuted. As much as people may disapprove of torture, they should try to recognize the limits of the government's ability to criminalize the conduct at issue in this case, conduct that was approved at the very top, widely supported by the public, overlooked by Congress, and given official legal sanction by the Justice Department.

Critics from the right are demonstrating an unsupportable keejerk reaction as well. The Obama administration had no choice but to renounce torture. Remember that even the Bush administration claimed that it did not engage in torture. No country can admit to engaging in torture without destroying the foundations of international law. The Bush administration had also already repudiated the torture memos before the Obama administration even took office, recognizing that they could not be supported as a matter of constitutional interpretation, statutory interpretation, or interpretation of international law. So the only issue on which the Obama administration can be questioned from the right is its decision to make the memos public. The substance of these memos was already widely known however, and the release of the text of the memos did nothing more than reveal details of information that was already public. Conservative critics ought to recognize, even if they don't agree with it, the political necessity of making a public statement of a new direction. That seems to be the least the Obama administration could have done. Bush supporters ought to be grateful that the new administration is putting the emphasis on moving forward over an undue preoccupation with the past, and that President Obama took the trouble to visit Langley to stand publicly with CIA employees and bolster their morale.

Shouldn't critics from both the left and right make some effort to appreciate the constraints that their counterparts place on the administration? Shouldn't people educate themselves about legal realities before they second guess legal decisions? And instead of carping about every decision that does not go as far as critics on both sides want, should we not admire the finesse of the administration's skillful navigation of these difficult waters?


  1. You forgot to mention in your analysis that in the Executive Order President Obama signed he specifically left open the door for, as you call it, "torture" if the need arises.

    That is what you call a hypocrite.

    If you don't believe me, check out this article:


    The unfine print of Mr. Obama's order is that he's allowed room for what might be called a Jack Bauer exception. It creates a committee to study whether the Field Manual techniques are too limiting "when employed by departments or agencies outside the military." The Attorney General, Defense Secretary Robert Gates and Director of National Intelligence-designate Dennis Blair will report back and offer "additional or different guidance for other departments or agencies."

    Hope and change, indeed!

  2. The Bush administration is over. Its about time that we realize that and take some responsibilities for our nation. It is true that President Obama is fixing previous problems. However, I view them as his problem. This should be a nation of peace and liberty. Not a nation that torturers people.

  3. Please consult with your lawyer before writing such utterly nonsense. 1. Torture is (and has always been) a crime - no matter whether any legal counsel ever said something contrary. The Nuremberg defense ("just following orders") is invalid. 2. Yes, even those who gave that bad legal advice, can be sentenced for enabling torture, which itself is an international crime.

    You better listen to the professionals.

  4. I agree with you Raphael that torture is always illegal under international law. My point is that it would be difficult to prosecute the CIA personnel in question under US law, because they were relying on legal advice that what they were doing was not torture. If you read my post carefully, you will note that I specifically stated that these people could very well face legal consequences under international law. But because it is highly unlikely that the US Justice Department would prosecute them, that is why the President gave up virtually nothing by reassuring CIA employees that they are not going to face prosecution if they acted within the parameters of the legal advice they were given from the Office of Legal Counsel.

    I think also that even though you could take the position that everyone who participated in allowing torture to happen violated international law, it is still useful to make some distinctions between the people who ordered the torture, the people who carried out the torture, the people who looked the other way knowing that torture was taking place, and the people who gave legal opinions that certain types of interrogations did not constitute torture. I'm not sure that we should treat all of these people the same way.

  5. @Joe. no, those people shouldn't all be treated the same way, but they are all guilty under the Geneva convention against torture. Even Obama would be in violation of this convention, if he'd block an independent investigation.
    Just follow my link above and listen to the expert.

  6. Geneva Convention Section IV covers only people who are captured fighting in uniform under a foreign flag, not insurgents. Try re-reading that to learn where you are wrong.