Why I’m Conflicted on Torture Prosecutions

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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32 Responses

  1. Avatar Cascadian
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    I appreciate the concern for prosecuting officials for what they do in the line of duty. However, torture and domestic unwarranted wire taps are clearly on a different level. The ultimate danger is that our inability to prosecute these crimes is evidence that our government is unaccountable and hence, illegitimate. If we allow these types of events to occur without punishment, it is we the people who are guilty.Report

  2. Avatar Roque Nuevo
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    I would agree with Cascadian, above, if this were a situation like the Nixon “enemies list” or where we were using torture on a massive scale to get bogus confessions, etc etc. But aren’t all the cases that the memos deal with about using coercive interrogation techniques selectively to get information that would save American lives? Political enemies of the Bush administration weren’t wiretapped and tortured; only foreign enemies, like KSM, were. I may go nuts if I hear one more “we’re becomming damned” or “we’re becomming monsters” comment. This isn’t about heaven and hell. I’m sick of people mixing their religious beliefs into national security doctrine.

    The CIA wants you to believe waterboarding is effective. Yet somehow, it took them 183 applications of the waterboard in a one month period to get what they claimed was cooperation out of KSM.

    The above is from the article you recommend.

    Somehow, the above author wants us to believe that waterboarding isn’t effective. Getting KSM to give up information after a month, especially since we know that he was never really in any danger of dying under torture and that they only made him believe that he was, seems pretty effective to me. I’m sure this is a reason why he confessed in open court: he wants his martyr cred back. Do we really know that the info that KSM gave up was useless and therefore that waterboarding wasn’t effective? I’m sure that a lot of this stuff is still classified and will be for a long time so I have to declare myself agnostic on this issue.

    On the other hand, if the CIA can get someone like KSM to talk–after only one month–wouldn’t this put the fear into al Qaeda operatives around the world? Don’t we want them to be afraid of us?

    Would the capture of KSM fit into the “ticking bomb” scenario somehow? It’s just a question but it seems reasonable that the authorities felt that kind of “ticking bomb” pressure on them at the time (early 2003).

    Would the capture of the man who planned or had a role in planning 9/11, World Trade Center 1993 bombings, the Operation Bojinka plot, an aborted 2002 attack on Los Angeles’ U.S. Bank Tower, the Bali nightclub bombings, the failed bombing of American Airlines Flight 63, the Millennium Plot, and the murder of Daniel Pearl be legitimate reason to apply the “ticking bomb” template?

    There never is an exact fit between any template and reality. That’s why people have to be around to apply them. Otherwise, they’re useless. Application is always a judgement call. Are we being fair if we demand that people be prosecuted for a judgement that in hindsight we think is wrong?

    I’m not trying to apologize for torture or to defend it (although if I had been in charge, I may have ordered KSM’s eternal torture as punishment for what he did, which is only one of millions of reasons why I’m not in charge.)

    What I am trying to do is to beat the dead horse I killed a while back: we need a clear and open discussion of the constitutional limits on coercive interrogation. We need this discussion to happen in the Congress, where the result will be a new legal framework that we can all live with. Then, the “ticking bomb” scenario would have clear and open proceedures before it’s applied, etc etc. and there would be no political hay to be made out of the issue. That’s why I say that Congress has been avoiding its responsibility. I can understand why they are, since it’s an issue where one is bound to give up a lot of negative sound-bites all the time.Report

  3. Avatar Mark Thompson
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    But Roque – this isn’t a Constitutional issue , it’s a criminal law issue, and the torture memos are beyond poorly reasoned from a legal standpoint. That they didn’t even cite to case law that was directly on point is remarkably disturbing above all else. If Congress wished to permit waterboarding, etc., as being “not torture,” then it was their responsibility – not the Executive’s – to put such an exception into the torture statute. But they didn’t.

    WRT the 183 times issue, it’s worth noting that IIRC the Bybee memo specifically states that waterboarding becomes decreasingly effective the more it is used (even if you accept that it is effective at all). This was an essential part of why the Bybee memo, poorly reasoned as it is, decides that waterboarding is not torture within the meaning of the law – the CIA had indicated that it would not perform waterboarding more than a handful of times.Report

  4. Avatar Transplanted Lawyer
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    says:

    For the record, Roque’s post suggests that I wrote the following:

    The CIA wants you to believe waterboarding is effective. Yet somehow, it took them 183 applications of the waterboard in a one month period to get what they claimed was cooperation out of KSM.

    It’s a very good point, and I wish I had written it. But I didn’t write it, so I can’t take credit for it.Report

  5. Avatar Roque Nuevo
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    says:

    Ooops! I guess I got the quote from an article that Transplanted Lawyer linked to. I don’t think it’s worth it to find now and I don’t have time anyway. So, sorry about that!

    In any case, I can’t understand how getting KSM to give up info in less than a month can be called “ineffective.”Report

  6. Avatar Roque Nuevo
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    “this isn’t a Constitutional issue , it’s a criminal law issue, and the torture memos are beyond poorly reasoned from a legal standpoint.”

    I’m not sure what this means. Isn’t the Constitution the basis of criminal law? I’m saying that criminal law needs to be adapted to meet the challenges of the global insurgency/asymmetric war. We need to do this within the limits of the Constitution, otherwise our ass is grass.

    I know that Congress had and has the responsibility to do this. I know that they didn’t do it. That’s my whole point.

    About the KSM waterboarding, you’re saying that interrogators went beyond the limits permitted even by the memos (which according to you are unpermissable anyway). That’s only more grist for my mill: we need clear limits on this type of thing, not just memos by government lawyers that can be used for political gain in the future.Report

  7. Avatar ChrisWWW
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    It was established at Nuremberg that “I was just following orders” is not an adequate defense for committing war crimes. It would have been the CIA interrogators moral and legal responsibility to refuse the order to torture, just as it would be for a soldier asked to kill innocent civilians.Report

  8. Avatar Mark Thompson
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    Chris – that may be true in international law, but in the US, qualified immunity is a recognized doctrine.

    Roque – no, the Constitution is not the basis for federal criminal law. Title 18 of the US Code defines crimes, including torture. I know you think that the existing definition of torture doesn’t meet the needs of asymetric warfare and anti-terrorism – but it’s not the job of the Executive branch to change that definition so that it does. The sole legal question (separate from any moral issues) is whether waterboarding and the various other acts identified in the memos fit within the existing statutory definition of torture (keeping in mind that definition was a result of international treaty obligations). And from a legal standpoint, a number of those tactics pretty clearly fit within the legal definition of torture; the only way to conclude otherwise is to rely on legal reasoning that would get a first-year associate fired from most firms.Report

  9. Avatar Mark Thompson
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    Roque – I should mention that there is a Constitutional issue here in the 2005 memos. But Constitutional violations are not necessarily criminal violations, which is what I’m concerned with in this post. Also, Philip Zelikow implicitly makes the point that the law on the Constitutional standards is substantially tougher on the government (ie, sets a lower bar on what acts are prohibited) than the statutory standard on torture here:
    http://shadow.foreignpolicy.com/posts/2009/04/21/the_olc_torture_memos_thoughts_from_a_dissenter

    So if you’re looking at Constitutional violations rather than criminal violations, the case law is quite explicit that these actions are Constitutional violations.Report

  10. Avatar nadezhda
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    As for the lawyers, it’s a much tougher issue for me. They did something – ignoring that their client is the Constitution and the duly enacted laws of the United States and acting as if their client was the CIA – that is a huge ethical no-no.
    I don’t agree that they were acting as if their client was the CIA. They did a really terrible job of providing legal guidance to their client. When I started practicing law a few decades ago (albeit corporate rather than criminal law), there was really a sense that our job in advising clients was to help them accomplish their objectives but only in a manner consistent with the relevant law. And it also meant giving clients guidance about how they might run afoul of relevant law. The client might not be happy with an opinion since it didn’t sprinkle holywater on her preferred course of action, but the lawyer had done his best to represent the client’s interests.

    I’ve been out of the practice of law for some time. But over the years, it has seemed to me that it has become somewhat more acceptable in opinion-giving to rely on technicalities and loopholes to squeak by and give the client what he thought he wanted. The notion has weakened that, in rendering an opinion, that lawyer is both representing the client and adhering to the spirit of the applicable law. I think we’ve seen that same sort of dilution of professional ethics in the financial sector — professionals, whether lawyers or accountants or rating agencies, focus on facilitating the immediate short-term interests of what the paying client wants to do and ignoring the broader “system” interests, the spirit of the rules, in which the client will, in the long term get caught up and may pay a nasty price.

    The torture lawyers neither represented their clients nor the law in rendering their opinions. Instead, they took their job to be to be one of a criminal defense lawyer — but a defense (allegedly) before the fact, to come up with the best case they could make for something the client wanted to be able to do which, at the very least prima facie, constituted a crime. Their best case could only be made by ignoring widely acknowledged precedent, defining away core legal issues through lots of handwaving, circular reasoning and pure sophistry, and, what I personally find the most disgusting, sanitizing away the reality of the issues put before them with the stagecraft of white coats and bureaucratic procedures. And then they argued, in the most circular reasoning of all, that it wasn’t torture because the intent wasn’t to cause pain or suffering, it was just to break the prisoners in order to extract information.

    This is like giving a client an opinion that, if he shoots someone, but does it following a certain procedure, he’ll only be liable for manslaughter because the procedure shows he didn’t have the intent required for a homicide conviction.

    They weren’t representing their client, they were making themselves witting and willing tools of a criminal conspiracy.Report

  11. Avatar Mark Thompson
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    Nadezhda – Thank you for that, that’s a much better comparison (borne obviously out of more experience than I have). I’m still just not sure that what they did rose to the level of a criminal conspiracy that ought to be prosecuted. The other issue, of course, is what happens if they are prosecuted but get acquitted, and what kind of precedent that sets.Report

  12. Avatar nadezhda
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    I should add on the “rogue prosecutor” problem, that it is a real problem which undermines the integrity of our judicial system. But it’s one that should be handled through more resources devoted by the courts, the Attorneys General and the legal profession — with real professional penalties.

    I can’t tell you how pleased I was that the prosecutors in the Stevens trial are being called to account. I expect he was indeed guilty of at least some of the charges, but the DoJ behavior was an out-and-out travesty. Same goes for folks like the Duke lacrosse prosecutor — shame him publicly and drum him out of the profession. The big problem right now is that it’s only in high-profile cases like Stevens and the Duke fiasco that attention gets paid to prosecutorial shennaigans. We need judges to be more willing to call prosecutors on their sins, as well as procedures for whistle-blowers and victims to get some meaningful redress. But using criminal courts against rogue prosecutors isn’t the way to clean up the system.

    I don’t think the crimes of the lawyers advising on the acceptability of torture are at all comensurate with rogue prosecutors, though as you suggest, the actual long-term damage inflicted on individual victims by rogue prosecutors may be greater than the torture authorized by the OLC lawyers. That’s because I view torture — and the related crimes of “disappearing” prisoners — as something far more fundamental to our constitutional system, not simply the relative health of our criminal justice system.

    Violations of habeas corpus, special secret courts, and torture are a trio of practices that have historically represented a bright line between absolutist/totalitarian regimes and regimes where people govern themselves through accountable leaders. Those practices have been made absolute taboos because of their practical impact on the nature of a political system. They are inherently terribly corrupting of those who administer a system which uses those practices — they require secrecy, which leads to more abuses to cover or justify the practices, etc etc., and they are always justfied by people who are honestly convinced that what they’re doing is essential to protect society, but are equally honestly convinced that they know better than their fellow citizens. We have made those practices taboos also due to their symbolic importance — they have historically represented the ultimate sign and test of whether a people is capable of self-government or instead would give in to those who would promise safety — provided they are given unaccountable powers.

    So for me, if “the people” or “the constitution” are what are “sovereign” in our system, torture is a crime we might equate with lèse majesté, equivalent to and as serious as treason. The lawyers who conspired to facilitate torture were commiting a crime not only against the victims of torture (for whom, if they are Al Qaeda members, I haven’t an ounce of sympathy). They commited a crime against their country, our society, and me as a citizen and member of this society. I really do take it all very personally.Report

  13. Avatar Transplanted Lawyer
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    Nadezhda, and others — what statute or common-law criminal charge might these guys actually be guilty of? Lèse majesté is not a crime, nor should it be one. Treason is a crime, but while I find their actions morally odious, it doesn’t look like treason to me; these fellows obviously didn’t have the intent to provide aid and comfort to the enemies of the United States.

    The best I can come up with is aiding and abetting, and conspiring to commit, aggravated assault. That is a relatively mild charge, although it would be a felony of moral turpitude in this case, so a conviction would potentially strip them of their licenses and that’s not a small deal at all.Report

  14. Avatar Mark Thompson
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    TL – Torture is a separate offense under 18 U.S.C. 2340A. Conspiracy to commit torture is punishable as if it were actual torture except that the death penalty comes off the table under 18 U.S.C. 2340A(c).Report

  15. Avatar Cascadian
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    Why keep it to domestic law? Who is the enemy of the US here is an interesting question.Report

  16. Avatar ChrisWWW
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    Chris – that may be true in international law, but in the US, qualified immunity is a recognized doctrine.

    I’m no legal scholar, but a quick peruse of the glorious Wikipedia Entry on Qualified Immunity brought this to my attention:
    A government agent’s liability in a federal civil rights lawsuit now no longer turns upon whether the defendant acted with “malice,” but on whether a hypothetical reasonable person in the defendant’s position would have known that his actions violated clearly established law.

    I think a CIA interrogator would have tough time arguing they didn’t know that a) what they were doing was torture, b) that torture was against the law.Report

  17. Avatar Transplanted Lawyer
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    Thanks for the reference, Mark; I’d not done the research yet. I notice that the definition in 18 USC 2340(A)(a) only applies to acts taking place “outside the United States”, but we’re talking about Guantanamo Bay here, so everything in the realm of this discussion would be extraterritorial.

    Cascadian, if U.S. law is sufficient to prosecute a U.S. citizen, then we should use our own law and do the prosecution and punishment ourselves. We need to keep our own house clean, rather than relying on someone else to do it for us — if for no other reason than the imperative to demonstrate to the rest of the world that we can be trusted to pursue justice.Report

  18. Avatar nadezhda
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    @TL – just to clarify, my analogy to lèse majesté was simply to explain why I take what the OLC lawyers did to be different in kind from, and far worse than, the actions of an overzealous prosecutor, even if the actual harm to individuals indirectly injured by their actions might be less. I wasn’t really suggesting we’d prosecute them for injury to the sovereign — I think it’s been a while since that was part of a criminal code. 🙂

    But it’s one of the key moral and philosophical reasons why we ought to seriously think about ways to prosecute them for their crimes, because I think it rises to the degree of seriousness of treason.

    I expect Mark’s right re conspiracy to commit torture as an actual violation of a criminal statute for which they might be prosecuted. Personally, I can’t read those memos any other way, they’re so oozing bad faith from every pore. But one never knows what a good defense lawyer and a jury might produce.Report

  19. Avatar Transplanted Lawyer
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    Chris — this is why the memos are so pernicious. A non-lawyer (or even a lawyer who does not take the time to read the memos critically) would not be able to tell the difference between them and a real, defensible legal opinion indicating that the torture was legally permitted. In effect, the CIA asked the Justice Department, “Hey, we want to waterboard this guy, can we do it?” and the Justice Department said, “Yeah, go ahead, just not too much and only in Cuba!” Qualified immunity comes in to play because the CIA interrogators are entitled to rely on that advice, even if the advice later turns out to be wrong.Report

  20. Avatar Mark Thompson
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    Chris – Just to add to TL’s point, OLC opinions carry a lot more weight than just a simple muncipal attorney’s opinion; for a variety of reasons not worth getting at here, their opinions often wind up being close to the final word on a subject. I’ve seen the qualified immunity doctrine used successfully in situations where the “reasonableness” of the government actor’s reliance on existing law was far shakier than what would be the case here.Report

  21. Avatar ChrisWWW
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    says:

    Transplanted Lawyer,
    Don’t get me wrong, if I had to pick, I’d rather see the architects in front of a judge than the interrogators. However, I think we should definitely go after both and see if a judge thinks a reasonable person would know the torture memos were bullshit. Hell, I wonder if the interrogators would even know about the memos at all.Report

  22. Avatar Mark Thompson
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    says:

    TL – one thing to note is that in at least the Bybee memo, it is explicitly assumed that the interrogations are taking place outside the United States.Report

  23. Avatar Cascadian
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    says:

    I agree that we need to do all we can within our own laws. We also have international obligations.Report

  24. Avatar Mark Thompson
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    says:

    Cascadian – one thing to note is that, AFAIK (I may well be wrong about this), the torture statute is the primary vehicle by which those international obligations have been implemented legally.Report

  25. Avatar E.D. Kain
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    See – all of this is very sensible to me, and then I read a quote like this:

    Last December, documents obtained by the A.C.L.U. also cited an F.B.I. agent at Guantánamo Bay who observed that ”on a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more.” In one case, he added, ”the detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night.”

    And it makes me shudder. It makes my skin crawl to think that the United States of America had set up a system that did this to people. I can’t find any justification anywhere for it. And I think that all parties involved need to face justice.Report

  26. Avatar Mark Thompson
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    Actually, E.D., that brings up another issue – what about where agents exceeded the scope of the actions authorized by the memos? That’s a much different case – keep in mind, for instance, that the Bybee memo explicitly assumed that waterboarding would only be used a handful of times at most on any given detainee. The 2005 memos, however….eesh. They authorized quite a bit.Report

  27. Avatar nadezhda
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    @Mark — I’m flattered you thought I had something useful to add to your post. Thanks!

    Back to TL’s original “moneyquote”:
    But it’s easy to see how a bunch of these lawyers — political appointees and those who worked very closely with them — felt some level of groupthink and political polarization. And in that circumstance, we want to have some way for someone to step out of the box and blow the whistle. But it takes moral courage and self-awareness to do that, and these are, unfortunately, rare characteristics and a lot of political pressure can squeeze large measures of those traits out of people who might otherwise have them. So, we had no profiles in courage in the Justice Department. It doesn’t seem quite right to prosecute someone for not having remarkable degrees of moral courage. But at the same time, it doesn’t seem right to not prosecute someone for setting in motion a chain of events that led to torture.
    But there wasn’t total “group think”. There were folks — not many of them — but they were there, who opposed from the get-go what was being cooked up. I’m sure we’ll hear more from them as the weeks and months go on.

    I’d point you to Philip Zelikow’s posts today over at the Shadow Government blog on Foreign Policy. He was at State and wrote memos opposing the legal “analysis” of the WH/OLC crowd. And I’m sure he wasn’t the only one. We know folks at FBI were actively opposed, to the extent they were aware of what was going on. And it’s also a mistake to think that CIA was a monolith of gung-ho interregators. Those who didn’t like the smell stayed as far away from the terrorist detention programs as they could, knowing the programs were morally and, in the long run, professionally lethal.

    State was also where opposition to Guantanamo and the black sites was strongest, though Cheney and Rumsfeld succeeded in blowing off any opposition. Taft, who was State legal counsel, put up a brave and continuous fight against the DoD lawyers and their crazy theories that, to virtually no one’s surprise, ended up being blown out of the water by the Supreme Court.

    Yes, there was “group think” in the sense that a small group of guys who were righteous in their anger and “moral clarity”, grabbed ahold of policy and ran with it, along the way winning all the internal bureaucratic battles against saner folks who were trying to stop them. But that’s not a mitigating factor. It’s the way all torture regimes work — they’re convinced they’re doing something terribly difficult and important and courageous, and they sure won’t let “bleeding hearts” or panty-waisted diplomats stand in their way.

    If they actually had any moral courage, they’d admit they were engaging in or facilitating torture. Plead guilty to the crime. And ask for a penalty to be applied. Because if they truly believe that what they did was necessary to save the country, then surely they can sacrifice themselves for that purpose. What’s so disgusting is that, though they insist that their actions were necessary for the greater good, they aren’t actually willing to make any personal sacrifices for the greater good but rather are willing to see the legal and political system be ripped to shreds just so they’re protected.Report

  28. Avatar Mark Thompson
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    says:

    Nazdehla – I may be a youngish attorney who likes to commit career suicide by blogging. But I’m not a youngish attorney who lacks respect for his elders! The thanks are owed to you and TL for lending your own experience and knowledge.

    I do want to comment on your last paragraph though. One “compromise” I’ve proposed on the torture issue is that torturers simply be permitted to make use of the necessity defense (since this already should be available to them, this really isn’t a compromise). If they raise the affirmative defense of necessity, then it winds up acting as a post hoc trial on the guilt or innocence of the torture victim and of the propriety of the torture. The response generally has been that this will make government agents too hesitant to use “enhanced interrogation techniques” to save lives; I say that’s a bunch of poppycock – if you’re going to torture, you damn well better be 100% sure that the guy you’re torturing is not only guilty but possesses information that will save lives that would otherwise be in imminent (I emphasize imminent) danger, and is going to actually divulge that information if he’s tortured. I also say that government agents damn well better be pretty hesitant to break laws against torture.Report

  29. Avatar Dennis Sanders
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    says:

    Mark,

    With all these lawyers, I sometimes don’t think I’m smart enough to engage in this conversation…

    I have to say that I am conflicted about this whole situation. On the one hand, I am glad they have been released because we need to know what happened. I have considered a truth commission of some type that would lay out what happened and how to keep it from happening again.

    Where I feel unnerved is when it comes to prosecution. I think the lawyers are culpable, but then so are those who inflicted the torture. It was at Nuremberg that we said that “I was only following orders,” was not an excuse. If we are going to prosecute, then we should prosecute all of those who are culpable and not pick and choose.

    But I am concerned about the consequences of all this. Will trying those responsible, even up to the President, make us a better nation or will it divide us further? Will such trials lead to a more risk averse government, where no one will do anything that might get them in trouble later?

    I think about how other nations have dealt with such issues. South Africa used truth commissions. I think about my recent trip to Argentina and remembering the stories of what went on during their military dicatorship. I could go on. What happened here is not necessarily the same, but it does ask what is demanded here: truth or justice or both? And will that demand unleash other demons?

    So, that’s my story. Maybe I seem like a coward, but this is how I am feeling.Report

  30. Avatar Mark Thompson
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    Dennis:
    Thanks for the comment, but there’s no reason to be hesitant to interject. If I’ve learned anything from blogging the last two years, it’s that sometimes you’re not as smart as you think you are, sometimes you’ve got more to add than you think you do, and sometimes the people you think are smarter than you aren’t really all that smart. If it winds up being the first of those three, then the worst thing that happens is you learn something; if it’s the middle, then you both learn and teach something, and if it’s the latter, then you just teach something. In any case, you can’t lose.

    The fact is, these really aren’t easy issues, and even though I’m less conflicted than I was this morning, I’m still conflicted. I think your point about looking at how other nations have handled similar types of concerns is an important one that may well prove to be the answer.Report

  31. Avatar Michael Drew
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    says:

    Boumediene, as I understood it, relied for its purposes on at least an attenuated finding that Guantanamo, for some legal purposes, is U.S. territory (I’m open to correction on that udnerstanding). If that is accurate, could that complicate prosecution under U.S. criminal statutes on torture? (Not a lawyer.)Report

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