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November 2019
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Aerden [userpic]
The Politics of Prosecution

I just heard on the news that President Obama is considering prosecuting Bush administration lawyers who advised the Bush administration that certain types of torture were legal under certain circumstances.

That's how I understood the news report, anyway. I think this is a bad idea. It could tie the hands of the wiser members of President Obama's administration and could give the less wise members of it the illusion that they may act with impunity against their predecessrs because they are in power, without realizing that this could have serious repercussions on their own careers when the next administration--whether it be Republican or Democrat--comes along.

President Obama is a lawyer, so I can only conclude that he wants to set legal precedent here and that he is fully aware that this course would set legal precedent. But no one can predict what will be considered legal, four or eight years from now, so I am baffled as to why the President would want to effectively paralyze his own staff. Once you begin prosecuting for gray-area things, every staff member has to start looking over his shoulder and second-guessing his own advice. It kills honesty and forces everyone to think first about protecting themselves from future legal action rather than getting the current job done.

I don't condone gratuitous torture any more than the next sane person. If I believed members of our military or intelligence services were carrying out gratuitous torture, then, yes, I would agree that those sick puppies should be put away and the key thrown into Mount Doom.

But I don't think that's the case, here. I think President Obama believes that any torture at all is gratuitous or at least unconscionable. I don't believe he understands that someone like Idi Amin won't pay attention to you until you stomp on his toes--hard. Then he might listen--if he thinks he can't overpower you.

I believe this is a bad, bad idea.

Current Mood: worriedconcerned

I think, wisely, that Obama is keeping his options open for the future. i have doubts that he'll let a prosecution go through unless the evidence is overwhelming. However, he's doing something that is, in my mind, both risky and necessary; he's not setting the U.S. above international law. At the same time, he may be positioning for a jump on the Spanish courts, who are already looking into the waterboarding issue.

I'm very mixed on this issue. I think it'll set prescidents, either way, and I'm not really happy about either set.

I would have some severe words for the Spanish courts, so it's a good thing I'm not the President. (g) Something along the lines of, "You know, I don't remember anybody ever prosecuting the Spanish Inquitision, and what they did was a lot worse than waterboarding, in my book."

I used to think I could be a diplomat, but I don't think I can, any more. Too much dishonesty and back room dealing, there.


Well, my personal opinion is that torture is one of the most singularly useless methods of interrogation ever -- and if someone is using it for something other than interrogation, I'd like to know what.

I mean, if the person being tortured is innocent, then a) you're subjecting an innocent person to unnecessary pain, and b) he'll probably plead guilty to anything eventually just to get you to stop. The Salem witch trials and the persecution of the Templars come to mind here. How is the torturer supposed to know if the pleas of innocent are genuine? If it were that easy, we wouldn't need judges or lawyers.

And if the person is guilty ... he'll still just tell you anything just to get you to stop. True, maybe he'll tell you what you need to know. But, given the number of things you'll hear both from him and from the innocent guy in the next rack over, you'll have no way of identifying this one grain of truth amid all the chaff.

Conclusion being, I really don't see this as a gray-area thing at all.

I totally agree with you.

In the same vein, you often hear about innocent people confessing to crimes they didn't commit, under duress from interrogators. They confess because they realize the interrogation will never end until they tell the police what they want to hear. And these cases don't usually involve anything one could call "torture"--however, it often involves investigators using inappropriate interrogation methods, such as threats and lies (which under law, they aren't supposed to do), beating the suspect down over hours of hostile interrogation until they finally break.

As a result, many innocent people have ended up spending years in prison until new evidence like DNA finally sets them free.

Sorry, on reflection, I think my above comment is missing several steps of logic. It only argues the uselessness of torture (ie, it might get Idi Amin to give you his attention, but it would not give you the power to do anything useful with that attention) but doesn't actually answer your question.

Vdansk, below, puts it pretty well: if one steps outside the bounds of the law, one must accept the consequences. To turn a blind eye now would be to set the wrong precedent. It would mean that other nations will be able to use torture for their own purposes, and the US would not be able to object to it. You say that moving forward with prosecution would start future advisors second-guessing their advice; but, specifically, the sort of advice they would be second-guessing would be that advice which goes against what the international community (of which the US is a part) has agreed upon as acceptable; and, as far as I can see, that sort of second-guessing is to be encouraged rather than not. (It must be absolutely clear, though, that these advisors are in trouble not for giving advice that turned out badly, but for giving advice that was known from the beginning to be unethical.)

And true, we don't know what could be legal or not 4 or 8 years from now. But as far as I know, torture was not legal when it was first advocated by Bush's advisors. Nobody is trying to prosecute something that only became a crime after the act was committed, here.

I think it should be avoided whenever possible, because of the harm it does both to the subject and to the person doing it. No sane person wants to cause suffering to another human being--unless, as vdansk pointed out below, it's your child's life at stake. Then, you will do just about anything.

What gets me is, torture is not really the issue I wanted to discuss, here. To me, torture is a no-brainer; it's a Bad Thing. I wanted to discuss the ramifications of prosecuting executive branch staff in the future for professional advice they gave in good faith in the past, how that might affect their current job functioning. But everyone has glommed onto torture because it's a hot-button issue. Interesting.


Yes, hence my second comment. Hence richandme's comment. I think he and I are saying the same thing here, that the sort of precedent that will be set will probably be more desirable than not: the backlash is not against advisors who give bad advice on good faith, but against advisors who give *unethical* advice. I do not foresee any effect on the honesty of advice where the recommended course of action does not go against any international or moral law. Why would this cause anyone to fear future legal action being taken against them for advice given now, unless the advice given now is known to be illegal? Why would it kill honesty, when the alternative is to foster hypocrisy?

I'd be interested to hear your views on the document to which richandme has linked.

Torture, etc

Do the ends ever justify the means? As a physician, I have to say unequivocally that I cannot condone torture either as punishment or interogation. On the other hand, as a parent...I would condone or even encourage torture if a child was missing and in danger, and I had good probable cause that someone knew where they were. Double standard? Of course. They'll never seat me on a jury if children are involved...because I believe that it is worth sending ten innocent adults to jail to prevent one child from being victimized.

To muddle this more...if someone had my child hidden away, and I had the power to do it, I would be willing and able to torture them to get the information i needed to save my child. And then, once my child was safe, I would accept that I should go to jail for my actions.

We are not above the law. If we choose to go outside of it, it had better be for a d**m good reason, and we better be willing to live with the consequences.

Re: Torture, etc

We are not above the law. If we choose to go outside of it, it had better be for a d**m good reason, and we better be willing to live with the consequences.

Yep, I agree with that, completely.

And, with regard to military techniques--the most successful ones don't even involve physical pain. Just messing with a person's time sense and not allowing them to sleep for long enough will induce a person to talk. But if you're in a time crunch, you sometimes don't have the option of getting information the physically gentler way. And yes, I know sleep deprivation is not 'gentle'--but it is, compared to what the Viet Cong used to do.

My friend Terry, who is ex-Navy, tells me that military interrogators must work under very strict rules regarding what they may and may not do to prisoners during an interrogation. I suspect a lot of their techniques are similar to what is seen in Burn Notice--as much or more mind-games than physical abuse.


I'm sorry. You're just wrong.

The very fact that you feel the need to modify torture with gratuitous tells me more about you than anything I've ever heard from you, and I'm horrified by it.

Torture. It requires no modifiers to be wrong. It is wrong, always, every time. To say otherwise is to deny the rule of law, to deny everything this country has ever stood for.

Backing you all the way, A.

Despite what some people have said.

Let's go out and horrify some prigs together.

--Skarl the Drummer

Re: Backing you all the way, A.

I see you haven't yet heard about Sgt. Robert Whittington of the Nebraska National Guard.

Sgt. Whittington's patrol strayed across the Iraqi frontier in 2005 and was picked up in Iran. It's a little sketchy what the Revolutionary Guard did to him when he was in their hands, it's been difficult to find reporting on the details. It apparently involved being manacled from the ceiling. And scorpions in his cell. Needless to say they smacked him around pretty good between times too. He was just an everyday grunt on a patrol, but the Iranians didn't know that, so they beat him just this side of brain damage trying to get information out of him that he didn't have.

How are you feeling about that? Do you think that was justified?

What a lot you've told us about yourself, Shadowflyer

You seem to think you're being quite compassionate toward Sgt. Whittington.

You do not seem to have asked yourself what right you have to drag his name, and his suffering, and his service into your argument.

The question did not arise because you do not see or respect him as a person, much less as a soldier. To you he is merely a debater's gambit, like a rhetorical construct. So you did not hesitate to use his name for your purposes. This says to the rest of us that your sympathy for him runs no deeper than rhetoric.

You also don't see that you cannot equate his treatment with that of say, Khalid Shaikh Mohammed, without equating the two men. Really now: was Sgt. Whittington an admitted mass murder? Was he, by his own admission, plotting more mass murder? Did Iran have reason to think he might hold the information that would foil a bombing in Tehran or Tabriz? If so, he is no different sort of man than Khalid, and their treatments are equivocable.

And I think you really believe this--not consciously, perhaps, but deep down, where most people keep their prejudices. You believe, like many nominal Americans, that the lawful service of a soldier is fundamentally no different from the committed and planned crimes of a terrorist--"I mean, they both involve killing, right?" You think their cases are alike, so it follows you think their treatment should be, too.

You don't appear to be deliberately hateful. You just seem to be someone who's succumbed to lazy, uncritical thinking and the insularity of closed communities. I've seen that sort of thing before: I've lived in in the South. And many such people manage to live inoffensive lives despite their beliefs. So I won't judge you harshly.

But I still find your argument appalling in both execution and content: it is patently transparent and reveals the depths of your bigotry.

That's all I need to know about you.

That's all I have to say to you.

Re: What a lot you've told us about yourself, Shadowflyer

I think you've missed the point.

It seems to me that a large part of Shadowflyer's argument rested on the understanding that Sgt Whittington WAS innocent, and very much a different sort of man from Khalid Shaikh Mohammed, and that their cases were different. You know it to be so, but how were his captors supposed to know this? They had a prisoner who was known to be one of their enemies, and who was captured on their territory. Of course they concluded that he must have information that would, as you put it, "foil a bombing in Tehran".

Are you sure that every single person that the US has tortured was definitely guilty of terrorism?

Because if you say that torture was justified, *even for those merely suspected but never convicted beyond a shadow of a doubt*, then you are equating the possibly-innocent with the definitely-guilty; and, thus, equating Sgt Whittington with Khalid Shaikh Mohammed. Clearly you think it is wrong to do such a thing. So does Shadowflyer. So do I. But it seems to me that you are closer to making that equation than Shadowflyer is.

On the other hand, if you do believe that every single torture victim was definitely guilty, AND if you believe that the use of torture would have elicited positive results, AND if you believe that this torture was only used as a last resort, then perhaps you might be justified in thinking that the advocates of this line of action should be acquitted of all charges. But my personal thought on this is that it would be lazy and uncritical to believe in the first, and uninformed to believe in the second. I'm perfectly willing to believe in the third, though I suspect most would call me naive to do so.

What a lot jorrocks has told us about himself

Actually, a large part of my argument rests on it not mattering whether we're talking about KSM or an innocent. Because it sure as hell didn't matter to the CIA. Innocents went to Gitmo. Innocents went to the black sites. And they were tortured. Sgt. Whittington's story is presented here to break through the excuse of 'these were bad people,' to get past 'us vs. them' and see that what was done to him and what was done to the people we vacuumed up off the ground in Afghanistan is the same damned thing.

There are certain things that it's wrong to do to human beings. Full stop. If you decide it's right to subject a person to that kind of treatment, you have made the decision that they are no longer human.

You have become a terrorist yourself.

You have resigned from civilization. From being American. From being human.

What jorrocks has told us with his attitude is that he belongs more fully with the Taliban and al-Q than with anyone who wants to retain some notion that they're the good guys.

Edited at 2009-04-23 08:38 am (UTC)

Re: Backing you all the way, A.

The story's a little different, isn't it, without the psychological safety net of knowing you and the torturers are on the same side - that they have to stop before they do you real damage. Without that comforting, protective knowledge, you stop telling yourself comforting lies using pretty words like 'gratuitous.' You start realizing what you're really talking about. It doesn't make it any less evil because I'm doing it instead of you.

Maybe Sgt. Whittington is fiction. Maybe his story was removed from the Washington Post web page at the Army's request - but only after I managed to read it. I'll leave you to lay awake at night and decide.

Some others (vdansk, miseri) said basically my feelings on the matter. If it was my child, I'd move heaven and earth and anyone's head that was in the way in finding them. But I would subject myself to the proper authorities once it was over and do time for stepping outside the law.

More emotively, many of my family members were tortured by their own countrymen during wartime. We grew up with those stories, we saw the scars, and more often then not (especially amongst the women) we saw the scars and didn't have to hear the stories to understand what happened. For me, it's not a grey area at all, it's never ok.

You've not asked the actual question: did somebody do something illegal?

You're not creating a new law here, you'd be enforcing an existing one uniformly. If enforcing that law makes lawyers think twice before ignoring the massive weight of international law, then, great.

And on the wider issue of torture:

State terrorism vs. Democracy: "In modern times it is not aimed primarily at the extraction of information, as commonly portrayed in films. Its real aim is to break down the victim's personality and identity."

If you consider that 9/11 justified Guantanamo, then you have to consider that Guantanamo justified 9/11. There is no way you can have one without the other.

From a legal and constitutional standpoint, torture is never ok, and I do think anyone who advocated otherwise were simply in the wrong. It's also blatantly ridiculous to argue, as some previous administration officials did, that something like waterboarding isn't torture -- I don't really see how ANYONE can argue it isn't after a little research. In any case, there is an abundance of evidence that it simply doesn't work, that it turns up bad information, that people will say anything after a certain point. So I think it's not only illegal and immoral, it's pointless as well.

As for what kind of precedent it sets to sue officials from a previous government. Well. I have to say I can see both sides of the argument. One the one hand we want our decision makers to be able to make decisions honestly, even when they are tough decisions. But on the other hand, if a decision is made for political gain rather than because it is a wise decision, should the people who made it be untouchable? There's a fine line in there somewhere and I'm not sure where exactly it is.

As things heat up...

Wow, what a great discussion this is turning into!

I think that, despite the heatedness of some of our arguments here, we probably all agree with each other more than not. I think that we all agree that a rule of law is something that should be respected; that there are consequences to actions; and that there are some things that none of us would condone in any situation.

I suspect that words, more than anything, seperate us. What I mean when I use the word torture is very concrete to me--something innately evil, meant to literally unmake a human being. This is not, however, a universal interpretation. I've heard people claim that spanking is torture; the real nuts claim that correcting a child's grammer or withholding dessert if they don't finish their peas is torture. With this dilution of meaning, the word is not going to have the same impact to anyone who doesn't have a concrete, gut-level association.

When we hear "psychological duress", it doesn't have nearly the same impact. The people calling this torture are doing so intentionally--not that I necessarily disagree with them. (I personally do not believe that GWB was the antichrist, but I can't off-hand think of any policy of his that I fully agreed with.)

So...where is the line, and how do we draw it?