The bad faith case for torture

One of the most absolutely infuriating and frustrating things for me to hear is someone saying that we shouldn't prosecute those who created a torture regime because lawyers told them it was legal. Chuck Todd of NBC news is a case in point (Todd also subscribes to the relativistic position that holding torture accountable is little more than a distracting partisan game.)

If a man with a starving family has someone tell him its ok to rob a bank we don't say its thus an iffy issue whether or not a crime was committed when the man robbed a bank, yet if a government official has someone tell him you can torture people in the name of national security despite laws otherwise we have no shortage of apologists for the resulting lawlessness.

But we don't even really need to get to that level of discussion, as what Chuck Todd fails to realize is that the advice given to the Bush administration by its lawyers was a facade; the whole enterprise was a bad faith process meant to provide pseudo-legal looking cover for an intention to knowingly violate laws. Given that Chuck Todd is the chief White House correspondent and political director for NBC news, one might think that it would be part of his job description to know as much before going on air and offering apologetics for what most probably constitutes war crimes.

Anyone having read the succint case laid out by Philippe Sands in Torture Team would be well aware that the process that resulted in the justification of torture was purposefully designed to circumvent normal legal process in order to manufacture a predetermined conclusion, but if one needs further explication, consult David Cole's article on the torture memos in The New York Review of Books.

While the memos from the Office of Legal Counsel have received less attention than the details of brutal treatment recorded by the CIA inspector general, these memos are the real "smoking gun" in the torture controversy. They reveal that instead of requiring the CIA to conform its conduct to the law, the OLC lawyers contorted the law to authorize precisely what it was designed to forbid. They concluded that keeping suspects awake for eleven days straight, stripping them naked, exposing them to cold temperatures, dousing them with water, slamming them into walls, forcing them into cramped boxes and stress positions for hours at a time, and waterboarding them hundreds of times were not torture, not cruel, not inhuman, not even degrading, and therefore perfectly legal. The memos make clear that true accountability cannot stop at the CIA interrogators, but must extend up the chain of authority, to the lawyers and Cabinet officers who approved the "enhanced interrogation techniques" in the first place.

The OLC's defenders argue that it was difficult to define concretely exactly what constitutes torture or cruel, inhuman, or degrading treatment and that there was little direct precedent to go on. There is some truth to these arguments. Not all physically coercive interrogation is torture. Determining whether tactics qualify as torture under federal law requires difficult distinctions between "severe" and less-than-severe pain and suffering, and between "prolonged" and temporary mental harm. Former Attorney General Michael Mukasey has argued that the lawyers acted in good faith to render their best judgment on these issues in perilous times.

Precisely because many of the questions were so difficult, however, one would expect a good-faith analysis to reach a nuanced conclusion, perhaps approving some measures while definitely prohibiting others. Yet it is striking that on every question, no matter how much the law had to be stretched, the Bush administration lawyers reached the same result—the CIA could do whatever it had proposed to do. And long after federal officials acknowledged that the threat of terror had substantially subsided, the OLC continued to distort the law so as to facilitate brutality.

Most disturbingly, the OLC lawyers secretly maintained their position even as the relevant facts changed, and even after the law developed to underscore that the CIA's tactics were illegal. There was one law for public consumption, but another quite different law operating in secret. For example, when the Justice Department's initial August 2002 memo interpreting the torture statute was leaked to the press in June 2004 and widely condemned, the department publicly issued a replacement memo, dated December 30, 2004, which rejected several interpretations advanced in its earlier memo. But the recently disclosed documents reveal that the department continued in secret to approve all the same interrogation tactics.