The Torture Memos

by Brien Jackson

Having read through the Office of Legal Counsel memos pertaining to torture under the Bush administration, I’m downright shocked by how banal it all is. The particulars didn’t really get me, indeed, it’s almost shocking how much of this we already knew. What is deeply disturbing, as several others have already pointed out, is how utterly dry the language and “reasoning” is. This is a cold, detached, nearly inhuman endeavor to justify inflicting torture on other people, and it almost reads like they’re arguing the statutory implications of some obscure corner of the tax code or something.

I’ll leave interpreting the memos themselves to someone else because, frankly, the content is rather dull to me (as I said, there’s really nothing in them we didn’t already know). Personally, I’m more interested in the question of prosecutions now. President Obama, as everyone has pointed out by now, reassured everyone yesterday that there would be no prosecutions of CIA operatives who were involved in carrying out the acts, and I think that’s the right call, on a number of levels. From a practical standpoint, I really don’t see how you’re going to win a conviction against a lower level operative. Their defense would almost certainly be centered around the OLC’s opinion, and the idea that these were guys who just wanted to defend their country, and wanted to stay within the law, but were lied to about the legality of various actions by a group of lawyers and politicians (incredibly unpopular politicians at that) is going to be a hard sentiment to overcome in a jury trial.

But from a moral/ethical standpoint as well, I don’t really think it’s right to prosecute the operatives. It’s easy to say they should have known better but, really, should they have? Yes torturing another human, even if it’s to “defend your country,” seems very bad, and seems like the sort of thing someone couldn’t possibly do without knowing it was wrong, but consider, for a second, that we train millions of young people to kill other human beings if necessary to defend the country, or even just to carry out a mission. And certainly, in that narrow context, very few people regard that as a bad thing. And yes, we expect that military personnel should refuse to carry out an obviously unlawful order from a superior, but the military operates in a world, and under a governing code, of much less ambiguity than the CIA. This is what, to me, makes the OLC’s actions especially pernicious; CIA operatives who are genuinely unsure of the legal boundaries at which they operate should be able to trust that the legal opinions they’re getting are good ones, designed to protect them as much as anything else. On some level, these people are victims of John Yoo as well, having been exposed legal liability, and having to live with their actions for the rest of their lives. There’s also a certain amount of discomfort, for me, in punishing non-legal experts for not knowing that the advice they were being given from lawyers who had reached a very high level of authority, and so presumably are very smart people with a very deep understanding of the law, was not, in fact, legitimate.

On the other hand, I very much hope that as many policy makers as possible are prosecuted and convicted for this sordid affair. That said, I think that’s a much more difficult task than many people are allowing. For one thing, prosecuting high level political officials is going to be difficult any time, as it’s going to be extremely hard to find a jury that’s largely unbiased by their own political opinions. Moreover, the policy makers can hide behind the OLC as well; after all, we established the OLC and the taxpayers provide a salary to its staff in order for them to give legal advice to the President and other policy makers, so if said policy makers can’t actually expect that they can rely on the OLC’s opinion regarding any given policy’s legality, what’s the point of even having the office, right? This is obviously bogus, but at the same time, it seems to me that overcoming it in a court of law would be exceedingly difficult.

Which brings us back to John Yoo, who seems, to me, to be the keystone to the whole enterprise. If it can be established that Yoo’s memos were written in bad faith, that is, that he knew the opinions were utter bullshit and was writing them, with the knowledge of senior policy makers, simply to facilitate policies he knew to be illegal and to cover for senior policy makers, then it becomes possible to snare everyone else as well. The question then, is how do you prove bad faith in the writing of a legal opinion? It seems like an incredibly hard thing to do to me, which is why I hope there are smarter people than I working on this sort of thing somewhere. But I think the last thing you want to do is rush into this sort of prosecution. The last thing you want is an acquital, which would be a tacit endorsement of the policies in question and, because of double jeopardy, would likely mean the guilty parties would get away with it forever.

Update: What A.L. said. More A.L. please, much less Glenn Greenwald.