There has been a lot of discussion about the Obama administrations release of the torture memos and the decision not to prosecute the operatives who actually engaged in torture. The two that I've been involved in the most, is this one at Greg Laden's blog and this one at Dispatches.
Let me be very clear before I continue, as many folks seem to be making assumptions about my position that couldn't be further from the truth.
1) I do not condone torture - at all.
2) I do not want to leave operatives with the notion that they should commit acts of torture in the future, if they are ordered to.
3) I absolutely want to see the DOJ investigate and I want to see officials that made the legal recommendations, the officials who counseled the Bush administration and those who gave the orders to torture go to prison.
The bottom line however (to borrow a phrase from Comrade Physio Prof), is that we do not live in a world that resembles a fucking care-bear picnic. While I absolutely do not want to see our intelligence operatives engaging in torture, I also don't want them to be put into a position where they will have to argue the law with officials who tell them to do something and make it clear to them that it is legal for them to do so. Intelligence operatives have to do a lot of things that are morally and legally dubious - and sometimes we need them to do those things.
Indeed, sometimes we need them to do things that are pretty clearly illegal - something that should be prosecuted in court and for which they should then be pardoned, unless it is found that they committed an egregious abuse that was either unnecessary or was outside their purview of protecting national security. I basically would consider the court proceedings an additional level of oversight that requires operatives to justify their actions and provide an accounting of why they felt it was necessary to operate outside the law.
I believe in the rule of law, but also recognize that there may arise occasions when the law would prevent intelligence operatives from preventing clear and present dangers to our national security, to the security of our allies, or the security of civilian populations of our enemies. Breaking the law should not be common, nor should actions that do be taken lightly. But pretending that there are never situations where breaking the law is not justified is complete and utter fucking bullshit.
Most importantly though, there are a lot of situations where the law is not so explicit and arguments could be made either way. Not to mention actions that while not necessarily illegal, would tax the conscience of most people. We need to make it clear to the operatives who are doing their damnedest to keep us safe, that they can follow orders given, without fear that we will turn around and decide that since the lawyers and officials who gave those orders were wrong, we must prosecute the operatives who followed those orders.
Now it's easy for you and me to say that this wasn't the least bit unclear. It's really easy to assume that the interrogators who engaged in acts of torture are just sadistic fucking bastards who get off on hurting people - and you know, I wouldn't argue that some of them probably qualify. But we aren't those people, people who we have trained to think and act differently than you or I would act. We push these people to the very limits and sometimes encourage them to go beyond, because what they do - what we need them to do sometimes requires skirting that line.
Rather than prosecuting them, we need to take steps to ensure that this never happens again. First and foremost, we need to make it clear to the people who gave the orders, the architects of this torture, that what they did was a crime against humanity. That if they are found guilty, they will go to prison. In effect, we need to ensure that the folks in power in the future, will never give these sorts of orders again. That they can and will be prosecuted if it is found that they ordered operatives to commit criminal acts. Second, we need to create fundamental interrogation guidelines that make it clear where the line is and make it clear that if this line is crossed, the operative who does will be prosecuted and punished, to the full extent of the law.
It is not easy to simply say that these folks should be let off of this. I am pretty certain that there are operatives who are sadistic fucks who wanted to do this. But I think that it's far more important to avoid sending operatives the message that they cannot simply trust the folks giving the orders, not to fuck them and leave them open to prosecution.