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September 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

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.