Against torture prosecution

by on April 27, 2009 at 5:45 pm in Law | Permalink

At many blogs (Sullivan, Yglesias, DeLong, among others) you will find ongoing arguments for prosecuting the torturers who ran our government for a while.  I am in agreement with the moral stance of these critics but I don't agree with their practical conclusions.  I believe that a full investigation would lead the U.S. public to, ultimately, side with torture, side with the torturers, and side against the prosecutors.  That's why we can't proceed and Obama probably understands that.  If another attack happened this would be all the more true.

On top of everything else, major Democrats in Congress are likely complicit and the Democrats as a whole hardly made this a campaign issue in 2004; in 2008 the economy was their winning issue, not torture.

One of the excellent students in my Law and Literature class wrote the following sentence in his final paper:

In some of the books, and almost all of the movies we have seen that the law goes as far as people are willing to support it.

That sad truth is another cost of the practice of torture.  The American public, now having affiliated itself with torture, will be reluctant to condemn torture for some time to come.  The "endowment effect" here seems to be strong.

An acquittal or mistrial would lose the chunk of world opinion that Obama has been winning back.  And a trial might prompt another terrorist attack, if only to force acquittal and make America look bad once again.

Pushing for prosecution would more likely endanger rule of law than preserve it, which is a sorry state of affairs.

Addendum: Here is more from Matt Yglesias.

Gabe April 27, 2009 at 5:54 pm

Enforcing the rule of law would endanger the rule of law.
War is peace.
Slavery is Freedom.
Politicians love you.

todd April 27, 2009 at 6:04 pm

my guess is that the intelligence committees in the house and senate will go forward with hearings and ultimately produce findings that Obama will have to acknowledge. while no prosecutions will likely happen (although the position of the lawyers who formally advocated the torture from the OLC is very fragile), bills and laws will probably be coming down the pike that effectively damn the Bush administration’s tactics.

but the upshot of the torture will ultimately be political. it is tough to see how anyone associated with the Bush administration in a senior capacity can ever run for national office. this is one of those long term problems for a political party, and i would expect to hear democrats utilize the word “torture” in national campaigns for the next couple of cycles, probably to some success.

Brainwarped April 27, 2009 at 6:09 pm

Its not torture, its “enhanced interrogation”:) As a “24″ follower, I agree that torture is completely unnecessary, a point that this season is trying to make. Ie, receiving bad information, useless information, or the goal, time sensitive information that would take weeks to remedy, when they only have minutes.

On the front of the duties of Law enforcement, we have turned to responsive enforcement, instead of the “beat” determent philosophy. I want to see a return to the preventative “beat” philosophy, but not at the cost of human rights. With that said, I am all for putting these people in jail like Jack Bower will end up at the end of the season. They made one huge mistake, they got caught! As long as the government’s stance is not to torture, the world and I are happy. If in some rare situation someone needs to be roughed up to start talking, I hope to never hear about it.

Morally its wrong, but I recall some news about an MRI test being used in India which showed that an Indian person was “familiar” with evidence that had not yet been released to the public, so he was convicted of murder.

I agree, it will be hard to find a jury to get behind a full conviction, but there is undeniable evidence, and prosecutors will figure out how to nail them.

Mark R April 27, 2009 at 6:28 pm

I felt like Obama’s election was a triumph of substance over the kind of cynical theater we’ve allowed our political discourse to become. It was an affirmation that winning the news cycle isn’t tantamount to political success. Allowing war criminals to go unpunished would be, for me, an acquiescence to the status quo. Part of the “hope and change” I voted for was a willingness to say that up is up.

That said, I don’t even agree with your premise. It’s not like the public came out to support the ugliness at Abu Ghraib. I just can’t see how history will look upon the abuses of the Bush presidency with anything but revulsion.

vanya April 27, 2009 at 6:39 pm

major Democrats in Congress are likely complicit

True. All the more reason to prosecute torturers and show the American people that this really is a non-partisan moral issue. Of course Pelosi should be called to account on this just as much as Cheney or Yoo. It is critical that senior Democrats pay the price for the policies they aided and abetted over the last 8 years. But if Tyler is right and the American public really wants to support state-sanctioned torture than let’s get that out in the open.

Adam Hyland April 27, 2009 at 6:42 pm

Well, this is a pretty fair assessment. Even if we throw out the notion that americans in general will feel the endowment effect (A notion I’m not inclined to throw out), the minority party has every incentive to drag its feet and cast doubt on the prosecution.

I think we may be forgetting that the attorney general has the ability to investigate and prosecute independent from the congress and the president. In my mind this is preferable to a Congressional investigation–less prone to grandstanding and leaks.

Sanjay April 27, 2009 at 6:51 pm

You have somehow clearly and simply been able to articulate something I’ve been worried about but not known how to say s well. I think this is frighteningly true.

But, well, it’s unsatisfying too. I mean, how do you extend this thinking forward? Does it mean that as the world starts dealing with each other more our standards will inevitably ratchet downwards? Or is Obama slowing that?

Taeyoung April 27, 2009 at 6:55 pm

Of course Pelosi should be called to account on this just as much as Cheney or Yoo. It is critical that senior Democrats pay the price for the policies they aided and abetted over the last 8 years.

Frankly, if we’re going to do that, let’s go whole hog and point out that “extraordinary rendition” — a standard tool in the American interrogation toolkit from at least the 80s up until the present — was really just a euphemism for shipping prisoners abroad and (accidentally on purpose) letting some other country’s secret police torture them a bit until they were ready to talk. I’m pretty sure Panetta is implicated with that. Rahm Emanuel too. Clinton I, of course. And Al Gore. They knew what their administration was doing. And it’s not like extraordinary rendition falls into a grey area on the torture scale. This is not an 8 year thing.

Gabe April 27, 2009 at 6:59 pm

I bet they will find a couple Lynddie Englands…push all the blame down on one or two “bad apples” and the Obamatrons will swoon over the pursuit of justice.

Then the next event that can possible be blamed on turrists will be blamed on the prosecution and anyone who tries to protest torturing again will be written up in a intelligence fusion center report.

fimbo April 27, 2009 at 7:07 pm

I guess you could make the same argument for NOT prosecuting hate and race crimes…
And of course the other nations in the so called “axis of evil” will use these same arguments when they use “harsh” interrogation techniques on US citizens

Mark R April 27, 2009 at 7:18 pm

Hollerbusch:

I think the Bush administration lost its tough-on-terrorism credibility sometime shortly after the 2004 election. Sure, the public response is going to be sensitive to framing, but I think you greatly exaggerate the extent to which that’s true. Take for example the narrative of a large grassroots backlash against the perceived fiscal recklessness of the Obama adminstration. The media has been playing this up for weeks and weeks, yet opinion polls have remained steadily favorable where it matters (among Independents and Dems).

I just think there are about a thousand ways to make this look horrific and maybe ten to make it look defensible. The plain fact is that we systematically denied other humans their humanity. If photos and videos of it get out (again: remember Abu Ghraib), there’s just no way the torture defenders can keep up the charade.

Michael Foody April 27, 2009 at 7:21 pm

I think this is a very good argument against prosecution. I’m not sure whether I buy it though. First many people will be able to make themselves believe that they did not and would never support torture even if a few years ago they did or would have. They will believe that other people were the bad ones and that they are the good ones. I think this self deception will trump the endowment effect.

TW Andrews April 27, 2009 at 7:40 pm

I think that a very public airing of what happened would be valuable. I’m less sold on the necessity of prosecution. Since acquittals would be disastrous, it would be very important to have an iron-clad case against them. Hard to know if that can be built.

mulp April 27, 2009 at 7:54 pm

Look, the voters in 2004 knew enough, or could easily have known enough if they were willing to examine their own principles, to believe that the US was engaged in human rights violations, of which whatever name you want to use for the treatment advocated by leaders is just a small part.

The nature of republican government means not only were these things done in our name, we did them. Our structure of government ensures that a pragmatic consensus is required to act. Consensus does not mean agreement, but only that those who don’t agree allow the majority to act, recognizing the already random “injustice” of nature of which man is very much a part.

We can quote Jefferson on trading liberty for the false sense of security, but even Jefferson and his peers spoke honestly of principles while at times violating them. Obama certainly knows well the insecurities that drove Lincoln to violate the higher principles he is revered for, so Obama is certainly going to judge previous administration leaders just as he and we judge Lincoln: with a sense of perspective.

People acted in why they thought was required for the good of the nation, and the voters were given a choice of candidates in 2004 that reflected the fears of the people who were willing to trade liberty for security. That the liberty traded was the liberty of “them” should only remind us of the willingness of FDR to trade the liberty of another “them.” By a slight margin, the voters in 2004 preferred the attitude of the Bush administration, with many explicitly doing so because the of their “whatever it takes” attitude.

Remember, the ACLU requested the documents it is now getting starting six years ago because they suspected torture was being used and wanted that question resolved by the release of all policy statements in that regard. If we are government of the people by the people, we need to know what we the people are doing. We, like the Roman Republic grant a sort of dictatorship for a limited time, and then vote to extend it. We he people agreed to extend the term of those who concealed from us the truth even as we suspected they had crossed some sort of line. Clearly, many were quite happy to have that line crossed, especially as long as they had no direct knowledge of it.

Obama has the sense to know that it will take years, decades, or even centuries, for we the people to determine the justice or injustice. That won’t be done in the halls of Washington nor by the politicians, but by the people.

Meanwhile many problems require the attention of the politicians representing we the people, engaging in as much of a dialog as possible with the people to move forward on the problems of today.

Jonm April 27, 2009 at 8:30 pm

I agree with Tyler on the probabilities but not the payoffs. Acquittal would not be far from the current de facto position, whereas conviction would be a great improvement, making reasonable assumptions about what has occurred.

On the other hand, if a US trial appears unviable, it would be possible to have a trial at the Hague, or some other respected court.

Mike April 27, 2009 at 8:39 pm

“Pushing for prosecution would more likely endanger rule of law than preserve it, which is a sorry state of affairs.”

Not to agree or disagree, but I think it’s important that the torturers get the blame for putting the country in this position, where doing “the right thing” endangers the rule of law. You may well be right that pushing too hard for prosecutions would lead to the opposite.

(Incidentally, this isn’t so different in character from how I view the Iraq mess.)

John Thacker April 27, 2009 at 9:09 pm

One reason it will never be prosecuted is because people are fooling themselves into thinking that there’s some obvious bright-line between “torture” and “not torture.” There a couple of ways of attempting to draw bright lines; it’s clear from the declassified memos that people in the government were trying to draw a “no permanent damage” rule. But apparently being wrong about that, approving things that can be taken too far, or approving things too close to said line can be torture. “I know it when I see it” is not a real basis for legal prosecution in my opinion. I think it’s ridiculous when used to arbitrarily ban things as pornography (and other things not), and it’s ridiculous when declaring some tactics arbitrarily as torture (and other things, like Supermax prisons, not).

Of all the tactics listed, waterboarding is the only one that comes close to me to the horrific conditions at ADX Florence and other “Supermax” prisons. To me, anyone claiming that we should send them to Fort Leavenworth (also Supermax) to be held is a torturer. The entire government is complicit in that torture.

But then I see the long-term confinement without charges as worse for the Gitmo detainees than the waterboarding.

Also, comments about “it harms the international reputation” only lead to not publicizing what we do. No publicity, no reputation loss. Just look at the lack of widespread outrage about extraordinary rendition (under Clinton) or against “Supermax” prisons like ADX Florence.

Gabe April 27, 2009 at 9:45 pm

Never attribute your own morals to your enemies. Maybe you would only torture people you suspect are guilty of doing really bad things, but your own government would gladly torture you for simply being in favor of the 2nd amendment or declaring taxes to be theft. This is the government’s definition of “terrorism”.

Mark R April 27, 2009 at 10:06 pm

TW:

Granted I have no legal training, but why should building a case against officials for ordering something that is unequivocally in violation of international and domestic law be difficult? I think the difficulty is in generating enough political will to make this happen.

PM April 27, 2009 at 10:36 pm

Re: Executing Japanese for waterboarding

Can someone maybe, finally, provide some documentation of this? Not of executions carried out for, among other things, water torture, along with little things like the rape and massacre of entire cities, the torture and murder of prisoners, the purposeful killing of civilians by the tens of thousands … I mean “executed for waterboarding,” period.

lxm April 27, 2009 at 11:07 pm

This conversation reminds me of the experiment where people were allowed to hit the switch which would send an electrical shock into the victim. The authority figure would tell them to up the voltage and the subject would shock the victim with the higher and highest voltages. What the experiments found was that people would follow authority and inflict grievous harm on another human.

Tyler argues that the American people have given defacto support to torture and, indeed, we have. Of course, we have. But that is not the issue here.

We have laws against torture precisely because people will support torture. We have laws against speeding precisely because people will speed.

To not prosecute violations of these laws is to give up a part of what we considered civilized. To not prosecute violations of these laws is to give in to the dark, destructive, forces of our human nature.

I believe that the decision to make torture an official policy of the United States was a decision made from great weakness and that is the real problem with it. Remember the leaders who gave us these torture procedures did not even have the courage to come out and say we will torture our enemies to get them to tell us what they know.

This country has lost its way. Is prosecution the way out? Is turning one’s back the way out? How do we teach the lesson that the problem with torture is more what it does to you, than what it does to the victim.

PM April 27, 2009 at 11:26 pm

Yes, we have truly lost our way. Over waterboarding.

adam April 27, 2009 at 11:35 pm

A rejection of the torture and show trials of Europe, in the 1700′s, is the foundation of out legal system and our country. That is why we have the 8th amendment, the right to trial by jury, the right to face your accuser, etc. Europe had the star chamber and plenty of torture. If we get rid of these rights, we are saying the British were right after all. There is a water board, used by Pol Pot, in the genocide museum in Cambodia.

Klaus April 27, 2009 at 11:49 pm

For anyone who is interested, the following article by a judge and former Army JAG surveys U.S. jurisprudence surrounding waterboarding. Evan Wallach, “Drop by Drop: Forgetting the History of Water Torture in U.S. Courts,” 45 Colum. J. Transnat’l L. 468 (2007).

joan April 28, 2009 at 12:08 am

Do people really approve of torture as a way to get information or do they just approve of torturing Khalid Sheikh Mohammed because they want vengeance. I have to admit that although I think torture is morally wrong, I am not really bothered by what they did to him.

Andrew April 28, 2009 at 12:15 am

elvin, you are wrong. Discuss?

Andrew April 28, 2009 at 12:43 am

So, PM, I’ll mark you down as “we aren’t perfect, never were, so we shouldn’t aspire to be better.”

Gotcha.

Mark me down as the difference between “us” and “them” is a matter of smaller degree when we choose either an unprincipled stance on torture or chose to eschew the principled view to fool ourselves it is utilitarian, when it isn’t, because it doesn’t work, won’t work, and cannot work in this conflict.

Andrew April 28, 2009 at 1:49 am

http://www.washingtonpost.com/wp-dyn/content/article/2007/12/13/AR2007121301303.html
And yet these myths persist. “The larger problem here, I think,” one active CIA officer observed in 2005, “is that this kind of stuff just makes people feel better, even if it doesn’t work.”

Not only is it counter-productive, it is counterproductive in the worst ways. It is counter-productive on the ground because it produces worthless intel. It is counter-productive domestically because it creates false sense of security and encourages misunderstanding of the conflict. It is counterproductive internationally because it destroys goodwill.

If it takes a trial to get these facts out, then in that case, doing the right thing will be very utilitarian.

Michael Foody April 28, 2009 at 2:47 am

This reminds me of Tyler’s theory of the angry ape and how that meant that Obama couldn’t win and Frank Booth would win. Or how Sarah Palin would win the election for McCain. Tyler is at his worst and probably his most cynical when he tries to model the political topography of the American people.

Ron Hager April 28, 2009 at 3:05 am

“I believe that a full investigation would lead the U.S. public to, ultimately, side with torture, side with the torturers, and side against the prosecutors.”

My position is – if you are not against torture and the torturers then you are one of them. So from where I am sitting, with this post Tyler has already placed himself fully on the side of George “The Torturer” Bush.

Brian O April 28, 2009 at 4:41 am

This is one of the most intelligent (and sad) items I have read re: the US torture regime. Perhaps a villain for historians to rightly vilify…

Again, really too sad to contemplate for a lengthy period of time.

David Heigham April 28, 2009 at 6:43 am

How about a very public inquiry, on the basis of fess up and you don’t get indicted? Preferably chaired by Colin Powell?

Adam

Torture to gat information had disappeared from British legal practice long before the USA became independent. If it had not, there would probably be a Constitutional provision against ‘cruel and unusual interrogation’.

rdg April 28, 2009 at 8:34 am

everything will depend on how the issue is framed

most people love ‘tough interrogation’

most people hate torture

Vi | Maximizing Utility April 28, 2009 at 9:25 am

I just finished the book “How to break a terrorrist” by Matthew Alexander. It was an excellent and fun read. It offers insight into different tactics in getting information out of terrorists. Instead of torture or control methords, these interrogators built rapport with detainees and tried to find what motivates them. Then they use that rapport to get information. Anyways, I just wanted recommend this book, as it offers a viable and arguably more effective alternative to torture.

Gabe April 28, 2009 at 10:41 am

‘And a trial might prompt another terrorist attack’

Our freedom may also prompt another terrorist attack…we have to get rid of this freedom.

vanya April 28, 2009 at 11:19 am

If you want to take a utilitarian approach I suggest this – an interrogation technique that elicits reliable and actionable information without creating permanent physical damage is not torture. Torture is primarily a technique for punishment that is used to intimidate and to destroy the humanity of one’s enemy. The problem over the past 8 years is that the Bush administration was clearly more interested in pursuing the goal of intimidation and dehumanization than in gathering useful information.

Borealis April 28, 2009 at 11:37 am

I don’t think the issues are anywhere near so cut and dry. The public is nowhere near as anti-torture as academics seem to be.

And even if you are personally convinced that waterboarding is torture, where is the line? Is it torture to threaten life in prison? Is it torture to publicly name a terror suspect when opponents will likely harm their families?

Julian April 28, 2009 at 12:10 pm

Okay, we’re all fascists now!

anonymous April 28, 2009 at 1:13 pm

And if and when we get some convictions, Obama can give a compelling speech about how the rule of law is a key American value *and* a practical benefit in our relations with the rest of the world.

Eloquence can backfire. Mikhail Gorbachev also gave compelling speeches. A whole lot of them, in fact. The trouble is, after the Soviet economy just kept getting worse, people started telling him to STFU.

Obama needs to throw this distracting sideshow under the train and get on with the real agenda. If Holder resigns over it, so be it.

Sean Matthews April 28, 2009 at 1:24 pm

Lots of ‘I thinks’ here.

Here is what I think. I think it is now clear to the world that the USA tortures people, and that any senior american offical who whants to torture and warmonger their way around the world can expect, at change of administration, nothing more than a high-minded lecture. This has not only burned off vast quantities of moral value, leaving the USA standing no higher than China or Syria for the forseeable future, but it also means that lots of Americans can expect, in the future, to be tortured. Rather like Americans seem to have tortured their captives more or less because they can.

Sean Matthews April 28, 2009 at 4:29 pm

To the person who wrote that ‘enhanced interrogation’ is ‘a meek PC act vs the real thing’.

People have been beaten to death by American interrogators in the last few years. How much more real do you want to get?

arion April 28, 2009 at 4:59 pm

I doubt very,very much that investigations, by either truth commission or Congressional inquiry would lead to a ‘pro torture’ attitude. The public didn’t respond that way when Nixon was brought down, nor during Iran-Contra. Consult also the blow-job impeachment

Marcos El Malo April 28, 2009 at 7:00 pm

There must be a non-partisan investigation, and everything needs to be brought out into the open. Let the chips fall where they may, regardless of the political consequences. We are talking about the Rule of Law. It’s a bedrock principle of our nation. If this gets brushed under the carpet, we really are no better than North Korea, Communist China, or the Soviet Union. If you oppose an investigation and you prematurely foreclose the possibility of prosecutions, you are relegating the Rule of Law and the Constitution to the status of the Easter Bunny and Santa Claus, i.e., pleasant fictions. I sincerely question your devotion to the principle of Liberty if you really think this should be or can be ignored.

Brett April 28, 2009 at 11:41 pm

Tyler, your argument does not appear strong from two very different views. The first view is simply the logical construction – which I suspect you would not use in many other situations. It is: “If we pursue this line of inquiry, we will find that a majority is in favor of the situation. Therefore, we should not pursue this line of inquiry because we will “ratify” what the majority thinks.” Huh? I can’t think of another situation where that logic would be compelling. How can we be so afraid of ratifying what the majority already thinks? How, exactly, does that make matters worse? It makes it appear as if you are arguing that “superior” people know this is torture, but let’s not put it to a vote because the rabble will win – forever and always.

The second view is that your argument appears to assume that the public cannot be reflective on an issue of great importance. You appear to be saying the public has made up its mind and cannot democratically debate an issue once that has happened. I think you are greatly misreading the public on this. For example, there was great support for the war in Iraq. The public went along with the leadership and supported their actions. But they have been able to reconsider their position since that point. This behavior is always the same – the public can reconsider sensitive issues AFTER the fact. It is rare for the public to object in the MIDST of the issue occurring. Standards of behavior and ethics get established upon reflection and then can be relied upon to guide future behavior. We need an inquiry and examination – not necessarily a prosecution – to define the ethical standards to which we want to aspire. I think we will surprise ourselves and find out that the American public desires a higher ethical standard than we have practiced.

Doug April 29, 2009 at 2:00 am

The burden of proof is always on the prosecution. If you want to prosecute the “torturers” that means the burden is on you. Look it up.

Chris April 29, 2009 at 11:47 am

It’s pretty clear from history and social science that torture CAN work for the purposes of an investigation, and that it HAS worked in the past.

Yeah, like all those witches whose true dealings with Satan would have remained unknown if not for torturing them.

The purposes of investigations in which torture is used is to produce confessions and convictions, not true information. For that purpose it *is* effective – but that is not a legitimate purpose that Americans should (or, IMO, will) support.

Mick April 29, 2009 at 8:19 pm


American interrogators have beaten people to death in the last few years. How much more ‘real’ do you want to get?

Posted by: Sean Matthews at Apr 28, 2009 4:30:51

You would not mind producing some proof, would you?
And no, reference to some brain-dead blog is not sufficient.

NEC Lavie laptop battery May 18, 2009 at 9:04 am

Of course Pelosi should be called to account on this just as much as Cheney or Yoo. It is critical that senior Democrats pay the price for the policies they aided and abetted over the last 8 years.

Will November 13, 2009 at 2:37 pm

This question would, in a society not built upon hypocrisy, be an easy one; does the rule of law apply?

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