DOJ "Torture Memos" Released
President Obama has released four “torture” memos written by the DOJ Office of the Legal Counselor Lawyers. You can find the memos at the ACLU’s website. The memos were published with very little redaction – it looks like mainly names have been taken out.
Also of note is Obama’s decision not to prosecute any CIA interrogators who relied on the memos in good faith. In some ways, I can understand this decision. He says “nothing will be gained by spending our time and energy laying blame for the past.” On the other hand, how much of a difference is there between the Nazi guard at Auschwitz, or the Hutu who murders his neighbor because the radio told him to, or the interrogator who goes a little too far. If the premise in the first two cases is that these people should have known, superior orders or government information notwithstanding, that some acts are fundamentally criminal, shouldn’t that same premise apply in the third case as well? What’s more, I worry that this could set a dangerous precedent in future cases: will we now give immunity to all persons who commit acts of torture or other crimes so abhorrent that the international community has labeled them “jus cogens” (acts that are always prohibited) if there is a legal memo authorizing these acts?
I’m not disappointed in Obama, nor do I feel betrayed by this decision. He ran as a centrist, and I think compromises of this sort are exactly what he promised in his campaign. I suspect that a lawsuit challenging the President’s constitutional authority to grant this immunity is next, but I’m not holding my breath for it.
As a side note, Kevin Jon Heller on Opinio Juris has an interesting argument on whether the CIA interrogators were actually acting in good faith.
Also of note is Obama’s decision not to prosecute any CIA interrogators who relied on the memos in good faith. In some ways, I can understand this decision. He says “nothing will be gained by spending our time and energy laying blame for the past.” On the other hand, how much of a difference is there between the Nazi guard at Auschwitz, or the Hutu who murders his neighbor because the radio told him to, or the interrogator who goes a little too far. If the premise in the first two cases is that these people should have known, superior orders or government information notwithstanding, that some acts are fundamentally criminal, shouldn’t that same premise apply in the third case as well? What’s more, I worry that this could set a dangerous precedent in future cases: will we now give immunity to all persons who commit acts of torture or other crimes so abhorrent that the international community has labeled them “jus cogens” (acts that are always prohibited) if there is a legal memo authorizing these acts?
I’m not disappointed in Obama, nor do I feel betrayed by this decision. He ran as a centrist, and I think compromises of this sort are exactly what he promised in his campaign. I suspect that a lawsuit challenging the President’s constitutional authority to grant this immunity is next, but I’m not holding my breath for it.
As a side note, Kevin Jon Heller on Opinio Juris has an interesting argument on whether the CIA interrogators were actually acting in good faith.
Labels: Rabid Conservatives, Yoo-Hoo
posted by Bekki at 12:47 AM
15 Comments:
I haven't had a chance to read these memos yet. But at first glance, it seems that some of the initial reporting on Slate and other places appears to be a bit misleading.
For example, Emily Bazelon at Slate describes the "walling" technique as "slamming a man's head against a wall while he's wearing a collar so he won't be brain dead from whiplash."
The 2002 memo describes walling this way: “For walling, a flexible false wall will be constructed. The individual is placed with his
heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual's shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. You have orally informed us that the false wall is in part constructed to create a loud sound when the individual bits it, which will further shock or surprise in the individual. In part, the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action.”
Don't get me wrong; I'm not defending this practice. But it seems to me that there's a difference between the two descriptions. The memo's wall sounds to me like the floors used in professional wrestling--all bounce and sound. Bazelon makes it appear that detainees are getting their heads smashed into concrete.
I think there's a big difference between a nazi or hutu footsoldier and a cia operative. people who takes orders dont become mindless robots and there is no way to compare waterboarding to mass murdering.
people who takes orders dont become mindless robotsI don't even know where to begin correcting that. The experiments of Milgram and Zimbardo were pretty unethical yet very revealing. Zimbardo I think recently wrote a book on this topic as it relates to Abu Ghraib, if I recall correctly. The point us, just spouting something doesn't make it so. In the case of your comment, the polar opposite is true.
the point is Armen that it would be ridiculous to go after cia operatives for these acts when they were approved/encouraged by upper echelon. Was what they did wrong? yeah, i think so. but waterboarding a top level al quada terrorist is worlds away from what the nazi's did. in my view, your failure grasp this concept shows me that you need to pull your head out of your ass.
I'll be kind and assume because the formatting on my comment was off, it wasn't clear. But please go back and look at what I'm responding to.
yeah , i checked it. . . pull your head out of your ass.
I'm sold.
I understand the motivation behind taking a very strong position in a debate. But, Bekki, do you really not see any distinction between a CIA operative "torturing" a captive with the goal of obtaining intelligence and a Nazi prison guard exterminating Jews?
TJ, it's a normative law perspective. Basically, if we're going to argue that Nazi's and those currently on trial at the ICTR and ICTY can be held liable for "following orders" (and yes, I'm simplifying the legal theory of liability), then CIA operatives should be held liable for following orders - which is, in a very simplified manner, pretty much what the memos boil down to.
If you want to take the point of view that nobody should be held legally accountable for following orders, well, that's a different debate. So far as I can tell, the President is basically acknowledging that under the current legal regime these guys should be held accountable, but we're not going to do so.
That, in my view, weakens the international criminal system that the United States has worked pretty hard to set up.
Bekki, I agree with you that "following orders" is not a legitimate defense to certain crimes, including torture.
Still, you're comparison of CIA interrogators to Nazi guards at Auschwitz is a little hyperbolic, isn't it? The latter directly participated in the murder of over 1 million people. The CIA interrogators had permission to hold a detainee's head immobile--so long as the fingertips were kept well away from the eyes.
Likewise, your Hutu example chopped his neighbor up with a machete. CIA interrogators had permission to put Zubaydeh in a box with a caterpillar.
Okay, I admit that I'm downplaying the interrogation techniques. Still, you're comparison is a exaggerated. It would be better if you were a little more measured on this topic.
I still haven't fully read the sections on "the waterboard," so I can't really comment on it. But it appears to me that (1) the memos do not approve the more serious techniques (such as those that permit water to enter the lungs), and (2) the memos recognize that this technique raised serious issues and required special attention.
(Again, let me make clear that I'm not defending the memos' conclusions.)
PS. Armen--you're an associate. I bet you take orders all the time. Are you a mindless robot?
PPS. Actually, Bekki, it's my understanding that the US has been working pretty hard to avoid an international criminal system.
PPPS. Bekki, don'y you know the Hitler rule to intellectual discussions: the first person who references Nazis, forfeits?
Carbolic, I'm not a mindless robot, but then I'm not in a position where someone with authority over me is directing me to inflict pain on someone else. The current research is fairly uniform in finding that normal people will do abhorrent things if they are asked by someone in authority. Relatedly, the Stanford Prison Experiment showed what regular people become even in a controlled adversarial setting. My only point is that the process that unfolds when someone is asked to commit horrible acts, especially in a prisoner/guard setting, is the same regardless of whether it's WWII, Rwanda, Gitmo, GULAGs, or anything else. That's not to say all of the above are the same, but the psychological phenomenon is.
It's worth noting that Bekki's point about individual moral responsibility is not only supported by international law, but our own domestic precedents. See, e.g. cases about soldiers executing defenseless villagers in Vietnam. While I have enormous compassion for individuals who have a lot of pressure brought to bear on their actions (it used to be that soldiers could be executed for not following orders), it also seems to be normatively desirable for us, as a society, to incentivize individual's speaking out against orders that are clearly wrong (and particularly CIA operatives who are generally HIGHLY educated and tend to know a lot about ethics and international relations). Maybe the torture techniques weren't CLEARLY wrong under the current standard (which is objective, not subjective), but if you've read the effects they've had on detainees at Gitmo and Abu Graib, you'll see these techniques often caused psychosis (especially any techniques involving sensory deprivation like blindfolding and earmuffing prisoners for days on end... I believe the AMA -- which certainly should know given experimental data -- has said these = torture). I also think that under international law its pretty clear that inducing mental disorders (pychosis, PTSD, and other conditions that often cause irreparable harm) qualify as torture, or at the very least cruel and degrading treatment (as prohibited by the CAT).
As for promoting ilaw, have you forgotten about Nuremberg and Justice Jackson? The U.S. SPAWNED the entire criminal justice system. I hope Obama signs on to the Rome Statute - I think it would greatly increase our credibility abroad and
I do not think fears of our soldiers being singled out are realistic given all the referrals thus far have been to actual genocides (and no one thinks Gitmo constitutes genocide, something that clearly distinguishes it from Nazism, sorry Bekki). It still merits prosecution under U.S. law, however. And we should also go after commanders.
Imagine being waterboarded 188 times in a month. Thats 6 times a day having water squirted up your nose while lying in reverse incline, and THEN there were 8 really really sh*tty days where you were waterboarded 7 times. It happened, we did it, to one man in March of 2003. See an awesome NYT article here: http://www.nytimes.com/2009/04/20/world/20detain.html?hpw
explain to me why killing innocent babies is ok b/c they are a punishment for a mistake and this type of interrogation to known terrorists is not OK and should not be tolerated. Sounds a little hypocritical to me. Tell me how releasing said memos will bring good to our nation. Tell me how knowing exactly how many times we "waterboarded" a particular individual will be helpful.
There is a really interesting article in the Washington Post about the effectiveness of "torture". Although the media is caught up in the details of what was done, the CIA memo also discusses how enhanced interrogation methods helped thwart several attacks. The often repeated meme that torture does not work may be incorrect.
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/20/AR2009042002818.html
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