Wednesday, April 22, 2009

Prosecute the Officials Who Ordered Torture, not the Operatives Who Followed Their Orders

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.


Juniper Shoemaker said...

I checked both discussion threads out this morning. Like most Americans, I don't have any well-informed opinion of how much utility torture has outside of sensationalist news reports and thrillingly written movies, and I am still completely undecided over the rightness of the Obama Administration's decision not to prosecute operatives. I do wish they'd taken a more explicit position on their commitment to investigating and prosecuting those in more senior positions.

DuWayne Brayton said...

I totally agree about taking a firm stance on the architects of this atrocity.

As far as the utility of torture goes, it is really far more of a problem than anything else - under most circumstances. The tortured will admit to anything and everything - anything to make the torture stop. And unless they know that you can confirm what they are telling you, right now - they may or may not tell the truth. It is almost certain that they will admit to far more than they are actually guilty of.

But that is rather besides the point. As Americans we cannot engage in that sort of behavior, even if it would be effective. I mean I can see it happening one of those fabled "ticking time bomb" scenarios and I would probably not only approve, but be willing to engage in it myself. But were that the case, I would also expect that the operative who did it be prosecuted and either found not guilty for extenuating circumstances or be convicted and pardoned.

Becca said...

I think we're all on the same page with respect to the "authority" figures here. The lawyers and 'bosses' should never work in those fields again at a bare minimum, and some of them would end up in prison if we applied the law fairly.

I was listening to a story on this on NPR today. It's interesting that both you and Ed are framing this as "people following orders" (even for civilians).
The NPR story framed the story more as somebody asking for a green light from legal and higher-ups. Having permission to torture is discrete from being ordered to torture.
Somebody or another was quoted as saying something along the lines of 'No American wants to prosecute these people who were just doing their jobs based on the best information from the authorities that they had'

I know this person was wrong. I want to see these people prosecuted.

For those who had permission, but were not ordered, I want to see them held responsible. I feel this should be the case regardless of their place on the hierarchy- though I do believe that place on the hierarchy is likely to influence who was being ordered (or at least coerced). Worrying about losing your job doesn't get you completely 'off the hook'.

However, my beliefs extend even further. I feel strongly that even for soldiers, for people who were actually literally ordered, worrying about whether the order is in fact illegal does not allow you to completely abdicate your moral responsibilities*.

However, my feeling about prosecution for the people 'low on the totem pole' is that it needn't entail punishment. I don't like the punitive model of justice, generally actually. Restorative justice is necessary here, for there is no doubt that being part of a culture that tortures, even if it you contributed to making the culture that way, will fuck anyone up. We don't owe the torturers a "we don't blame you". But we do own them a "you were put in an excruciatingly difficult situation and we can understand you" and, more importantly, we owe them an opportunity to make things right, as much as that can be done.

I want to see the torturers sit down with the tortured and the families of the victims and apologize on behalf of the people of the United States.
I want them to have better legal and ethical training, so they can understand illegal/immoral orders and explain them to others. I want them to be charged with disseminating this information throughout the ranks of the CIA, and probably other agencies as well. I want to instill in them that torture is wrong, and make them responsible for keeping it from happening. I'm sick of this "nobody's in charge here" bullshit.

*see, e.g. "The Universal Soldier".

DuWayne Brayton said...

Hey Becca -

But we do own them a "you were put in an excruciatingly difficult situation and we can understand you" and, more importantly, we owe them an opportunity to make things right, as much as that can be done.I wouldn't argue with this or with your suggestions that come after. I rather think you have a very reasonable position across the board.