Simple points regarding the torture memos
The Obama administration recently released four controversial OLC memos (in largely unredacted form; available here ) that discuss in detail specific harsh interrogation techniques that, in the opinion of the memo authors, are permissible under certain circumstances. The Obama administration has withdrawn the memos but has also promised that those who carried out procedures authorized as legal will not face prosecution. Partially for my own convenience in organizing my thoughts and partially in response to some discussion I've seen elsewhere, I wanted to make a few simple points.
I will take as a definition of torture "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession... when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
0. The guilt or innocence of the detainees is a distinct question. This is a preliminary point but one that often corrupts discussion. It is not an irrelevant question, obviously, but it should be addressed separately from the issue of how we treat detainees. Appeals to emotion by claiming that (the majority of) detainees are "evil" or "innocent" obscure rather than clarify.
1. Some of the techniques are likely properly categorized as torture. Waterboarding is the most obvious example (see also Hitchen's first-hand account ). This simulated (or controlled) drowning inflicts severe pain or suffering, both physical and mental. This is now acknowledged by relevant parties: the head of the CIA, Leon Panetta, stated that "I believe that water-boarding is torture and it's wrong" and that the President does not have the right to order torture: "Nobody is above the law", and AG Eric Holder has also classified waterboarding as torture.
2. Some of the techniques are likely not properly categorized as torture. The authors did at points take pains to stay within the letter, if arguably not the spirit, of the law. For example, the "unbelievably ugly and grotesque" (quote ) memos include detailed discussion of how to utilize insects without crossing the line into torture: "As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. If you do so, to ensure that you are outside the predicate act requirement, you must inform him that the insects will not have a sting that would produce death or severe pain." One can certainly question whether even non-torture harsh methods should be utilized (and I believe that is why the CIA is currently restricted to the Army Field Manual techniques) but let us keep a sense of historical perspective here.
3. The interrogators have a valid legal defense for their actions. Contra conveniently confused Kossacks , this is not a "just following orders" defense ala that employed by rank-and-file Nazis. Obeying an illegal order is illegal. The problem is that the legality of orders instructing utilization of the techniques in question was legitimately unclear at the time. (Unclear as in disputed; this is also not an "ignorance of the law" attempted defense.) This is not only because the OLC wrote a memo, it is because many of these techniques fall into a gray area within which there can be good-faith disagreement as to whether "enhanced interrogation" or "torture" is the proper label, even working from the same definitions.
4. The lawyers have a valid legal defense for their actions. With due respect to Spanish prosecutors , we have a long legal tradition of holding accountable those who order or facilitate a crime just as we do those who carry it out. The problem is that it is not indisputable that the memo authors went beyond their legitimate role of providing advice as to the interpretation of the law and instead transgressed into constructing a legal facade for actions they knew constituted torture.
I don't know what should happen next. It seems to me possible to construct a case against senior members of the previous administration who instituted and authorized this program. It also seems to me that such a case would face significant legal, practical, and political challenges, far beyond those acknowledged by many progressives eager for prosecutions.
Regardless, it is past time that we as a nation owned up to these actions. The release of these memos sheds some painful but essential light on how we prosecuted the war on terror.