In the last month or so there has been a big debate in the blogosphere over what Obama should do with memos and photos that tend to show that the Bush administration tortured some of the detainees it held. In the media, this discussion has been painted as a partisan battle, where the liberal left is seeking the ultimate revenge against the Republicans who were doing their best shortly after 9/11. I don’t see it that way. To me this is an issue about the rule of law and about whether members of the Office of Legal Counsel (Judge Bybee, Professor Yoo and Steven Bradbury), other members of the Executive Branch (including Vice President Cheney or even President Bush), and members of Congress (Nancy Pelosi, perhaps) should be exempted from national and international law. I think they should not be.
But that also doesn’t mean that I think they should necessarily sit in jail for the rest of their lives. There is a difference between torture being legal and torture being justifiable. What I mean by that is similar to what Justice Jackson said in his dissent in Korematsu v U.S. Korematsu challenged an order given by a General (and authorized by Congress) during World War II that mandated the internment of all Americans of Japanese dissent in California. The Supreme Court upheld the law, but in his dissent, Justice Jackson stated, “if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient.” Korematsu v. United States, 323 U.S. 214, 244 (1944). Justice Jackson’s point was that while some decisions may be required because of the unknowns of a military situation facing the country, those decisions should still be subject to judicial review.
While torture is illegal it can sometimes be justifiable. Was it in this case? The appropriate way to determine the answer to that question is through our court system. The judge plays a neutral role to determine whether there is sufficient evidence to justify charging someone with crimes and the jury serves to determine if the facts in the particular case meet the requirements of the law. But in this type of case, the jury serves a special purpose. Jury nullification has always existed, and torture during a time of war may be the type of crime a jury finds excusable. For example, let’s say Khaled Sheikh Mohamed had information about an imminent terrorist attack (the so-called ticking time bomb scenario). I think most juries would excuse those who authorized torture in a limited scenario like that.
From the evidence that has been released, it does not appear that the use of torture was limited to the ticking time bomb scenario. This is why prosecuting those who authorized widespread torture is important. Enforcing both the Geneva Conventions and domestic laws against the use of torture is crucial in sending two messages. The first and most important is that when there is no dire, emergency situation, torture is never justified. The second is that the United States as a country is strong enough to have our past decisions reviewed in the public eye. The irony of the reaction people had to the torture that took place at Abu Ghraib and the clearly worse behavior that has been uncovered and authorized by these memos is shocking to me. There is no proof, except the word of former VP Dick Cheney (contradicted by the testimony of FBI and CIA agents who interrogated K.S. Mohamed) that these methods produced actionable intelligence. In fact, many have suggested that these interrogations took place in order to create a justification for going to war with Iraq in the first place.
This doesn’t mean that torture should never be used. But it should never be legal. And it should always be prosecuted. The simple reason for this is that it forces officials to think twice about each time they torture someone already in U.S. custody. Unless it is absolutely necessary to torture someone in order to save lives–and the torturer knows that it will save lives–it should never be done. There are so many reasons for this that I almost don’t know where to start. First, torture doesn’t provide true confessions, meaning it doesn’t work. When someone knows that they will be tortured until they say the right thing, they will keep talking until whatever the right thing is comes out of their mouths. Torture is designed to break someone, not to illicit truth. Second, Al Qaeda uses the fact that the US tortures to recruit more soldiers. This alone should be proof that this is almost always a counter productive method. Third, the torturers–not the lawyers who wrote the memos or the politicians who authorized the techniques–are affected morally and spiritually by torturing. When we ask CIA agents and soldiers to torture, we are asking them to lose a little of their humanity. And last, the ability to torture empowers an already too powerful Federal Government with the legally approved means to break individuals to serve some greater good. I don’t know how much closer to 1984 I want to get.
Torture is always wrong.
See this cool leaked graphic torture video if you don’t believe me:
[The video originally attached to this comment has been deleted.–navahs]
I think we often confuse whether or not torture is wrong – it is – with whether or not the government’s use of it should be justiciable. While there are circumstances where government officials should be prosecuted for torture, my sense is that the political branches can better handle torture-as-government-policy than the courts. The use of torture can (and was) an election issue, and the taint it placed on the Bush administration helped the current administration win.
It seems to me that when torture is being used by the government for military expediency, it ought to be left as a political question. Prosecution is more appropriate when torture is being used contrary to policy (as occured at Abu Ghraib) or when torture is being used for political expediency, as has occured under oppressive regimes in other nations.
I’m not sure I agree with your distinction between torture as policy vs. torture as an abuse of policy. But even accepting this, it’s not clear that what happened at Abu Ghraib wasn’t authorized by Cheney or perhaps even Bush. The memos that permit torture pre-date the Abu Ghraib photos and torture, which makes it easy to take the logical jump that these soldiers were complying with what was US policy at the time.
The reason torture as policy shouldn’t be left to the political process is two fold. First in places like Cambodia where the Khmer Rouge used it systematically to eradicate an entire class of its citizens, the political system obviously didn’t work, and that country is still rebounding from the effects of the policy. Second, in places like the US where we are signers of the Geneva Conventions, where things like waterboarding are against US law, there is no doubt in my mind that this is not just a political question. Simply because the US makes a policy decision, doesn’t mean it’s a political issue. There are rule of law issues–both domestic and international–and those need to be investigated and possibly tried in order for the US to maintain legitimacy in the Western world and be held accountable like many other nations.
What aren’t you covering graduation week? Why don’t you have someone covering the 3L grad week events?
Why haven’t you put up a post regarding anything related to the law school in its most important week of the year?
Oh wait, I just remembered, you are only here when it’s time to bitch.
Apparently “what are you doing” hasn’t figured out that this blog is not a GW law newspaper reporting current events. Why would any of the writers be paying attention to the graduation festivities when none of the writers on the blog are graduating? I believe that blog’s description reads “a mini mall of our law school thoughts.” While this phrase is far from unambiguous, I’m pretty sure that it is safe to assume that covering law school group activities is not necessarily a subset of the blog members’ thoughts. If you want graduation reporting why didn’t you submit a guest post, post activities on your own blog, or contact note bene, the actual publication of record for law school activities?
And the contributors, despite their numerous attempts, have been unable to procure any regular 3L or 1L contributors.