War Crimes

Yeah, we commit them in secret prisons.

WASHINGTON — The Justice Department on Thursday made public detailed memos describing brutal interrogation techniques used by the Central Intelligence Agency, as President Obama sought to reassure the agency that the C.I.A. operatives involved would not be prosecuted.

In dozens of pages of dispassionate legal prose, the methods approved by the Bush administration for extracting information from senior operatives of Al Qaeda are spelled out in careful detail — like keeping detainees awake for up to 11 straight days, placing them in a dark, cramped box or putting insects into the box to exploit their fears.

The interrogation methods were authorized beginning in 2002, and some were used as late as 2005 in the C.I.A.’s secret overseas prisons. The techniques were among the Bush administration’s most closely guarded secrets, and the documents released Thursday afternoon were the most comprehensive public accounting to date of the program.

Some senior Obama administration officials, including Attorney General Eric H. Holder Jr., have labeled one of the 14 approved techniques, waterboarding, illegal torture. The United States prosecuted some Japanese interrogators at war crimes trials after World War II for

Together, the four memos give an extraordinarily detailed account of the C.I.A.’s methods and the Justice Department’s long struggle, in the face of graphic descriptions of brutal tactics, to square them with international and domestic law. Passages describing forced nudity, the slamming of detainees into walls, prolonged sleep deprivation and the dousing of detainees with water as cold as 41 degrees alternate with elaborate legal arguments concerning the international Convention Against Torture.

You can read the memos here. It’s really disturbing stuff, and it’s quite honestly humiliating — the United States’ status as some sort of moral beacon faded long ago (if it ever existed), but certainly we’re supposed to be better than this. And while I’m not a big fan of punitive punishment, the lack of accountability here is startling:

Within minutes of the release of the memos, Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Senate Judiciary Committee, said that the memos illustrated the need for his proposed independent commission of inquiry, which would offer immunity in return for candid testimony.

Mr. Obama condemned what he called a “dark and painful chapter in our history” and said that the interrogation techniques would never be used again. But he also repeated his opposition to a lengthy inquiry into the program, saying that “nothing will be gained by spending our time and energy laying blame for the past.”

A dark chapter in our history? The past? Sure, it is “past” insofar as four years ago is “the past,” but come on now — it’s hardly so far back in history that we should close the book on it and move on. It just happened. Many of the people who authorized and implemented these procedures are still in positions of power; none of them, as far as I know, have had to pay any penance for the crimes they committed or encouraged.

Of course, it’s not so easy to pinpoint exactly who should be paying penance, and for what. The people who actually carried out the torture did so under orders from above; they were told that they had the legal go-ahead. The lawyers who wrote the memos certainly came to some reprehensible conclusions, but they weren’t the policy-makers or the order-givers, even if they knew that their recommendations would translate into policy. I personally believe that the buck stops at the highest levels of power — clearly the higher-ups in the Bush administration not only knew what was going on, but pushed their legal experts to come to these conclusions. In doing so, they put American citizens in legally precarious situations — for all their America-loving talk, they encouraged CIA operatives to commit war crimes, and opened all of those people up to potential prosecution. It doesn’t look like the CIA officers are going to be prosecuted, but they were put in a very troublesome situation — and many of them did very troublesome things.

Mr. Obama said that C.I.A. officers who were acting on the Justice Department’s legal advice would not be prosecuted, but he left open the possibility that anyone who acted without legal authorization could still face criminal penalties. He did not address whether lawyers who authorized the use of the interrogation techniques should face some kind of penalty.

I hope some sort of investigation is launched, but I also hope that we don’t lose sight of the forest for the trees. I obviously don’t have a ton of sympathy for torturers, but I’m also not sure that they guy working at a prison in Aghanistan, who’s being told by everyone from the President of the United States on down to use “harsh” techniques in order to get information from detainees, and who is operating under significant personal stress in an organization that relies heavily on hierarchy, is the person who should be held ultimately accountable. I would much rather see the people who were in positions of real power and authority have to answer for this.

The New York Times offers a round-up of blog and op/ed opinionson the torture memos. It’s well worth a read.


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24 comments for “War Crimes

  1. William
    April 17, 2009 at 10:08 am

    There’s nothing in the streets
    Looks any different to me
    And the slogans are replaced, by-the-bye
    And the parting on the left
    Is now parting on the right
    And the beards have all grown longer overnight

    Guess thats what I get for daring to hope in politics. Thanks, Mr. Obama, you’ve reminded me why I lean libertarian.

  2. Mireille
    April 17, 2009 at 10:25 am

    Yeah, it’s the past! That’s why Allan Andrade shouldn’t be prosecuted for killing Angie Zapata in cold blood. It happened in the past! Can’t we all just look to the future?

  3. Lance
    April 17, 2009 at 10:50 am

    The window between being “so current that we can’t reveal any details or have a public debate about it” and “so far in the past that we should just move on” has never been shorter. If only we had been more vigilant on February 16, 13:07:02-13:07:49! I’ll never let my guard down again.

  4. Diana
    April 17, 2009 at 10:58 am

    Umm, wasn’t it established at Nuremburg that “just following orders” isn’t an excuse?

  5. April 17, 2009 at 11:07 am

    Well, it is a GIANT step forward that Obama has released these records. Personally I do not think a witch hunt that would inevitably end in soldiers who were ordered by their boss’ boss to torture being thrown in jail is the way to go. Nor is turning the government upside down via an inevitably partisan investigation while everything else in the country is already upside down the way to go either.

    I wonder if we’ll be looking into reparations for any of the families. Probably too much to hope for.

  6. Kristen J.
    April 17, 2009 at 12:44 pm

    Torture is an intentional crime under the statute. Consequently, the individual torturers (the ones committing torture) have a defense – good faith reliance on advice of counsel which requires that you (1) relied, (2) on advice provided by counsel after full and fair disclosure, and (3) did so in good faith.

    Granted, it’s a defense with a muddy history. Judges often find malice in an underlying act and that determination undermines the finding of good faith.

    But the defense would probably work here.

    I’d prefer to throw the attorneys who responded to Bush pressure in jail for conspiracy to commit torture. They knew what their legal advice would be used for and they knew that the advice they provided was wrong. This wasn’t simply malpractice, it was collusion. Lawyers cannot be complicit in this type of crime and think to hide behind the profession.

  7. jenny
    April 17, 2009 at 12:59 pm

    @ #4 – I thought so… :|

  8. muffler
    April 17, 2009 at 1:05 pm

    How did Americans get so fearful that they would drop all pretenses of morality that we profess to the world so as to look for loopholes in the law that would allow us to justify immoral action.

  9. William
    April 17, 2009 at 1:34 pm

    . Personally I do not think a witch hunt that would inevitably end in soldiers who were ordered by their boss’ boss to torture being thrown in jail is the way to go.

    Its actually not all that hard. You find the highest level at which the torture was ordered or allowed, then the lowest level at which it was perpetrated. Those two points, along with every single person between them in the chain of command, get to hang.

  10. April 17, 2009 at 1:50 pm

    I didn’t say it was hard. I said I didn’t think it was a good idea.

  11. April 17, 2009 at 2:08 pm

    And everyone needs to see Errol Morris’s documentary STANDARD OPERATIONAL PROCEDURE, if you can stand to watch it. Every American, certainly, needs to see it.

    Here is my review from some time ago.

    Warning: the links are to some extremely graphic photos, and I included one in my post.

  12. William
    April 17, 2009 at 6:05 pm

    With all due respect, Chava, I think thats a cop out. Either torture and human rights abuses are wrong or they are acceptable under some circumstances. Thats the discussion. Do we take a stand and say “this is a line we will not cross because it makes us into something we will not be” or do we take the Jack Bauer route and hope things play out well in the end. If something is unacceptable you have to punish those responsible. It is simply not enough, morally or symbolically, to say “well that was unacceptable but it would be too hard to really pin things down and there would be too many hurt feelings.” Condemning but doing nothing more because you have bigger fish to fry is, to my mind, worse than continuing. What you’re saying there is that, as bad as torture was, the discomfort and difficulty of doing something about it outweighs the interests of justice or vengeance.

  13. April 18, 2009 at 12:08 am

    First of all, vengeance should have nothing to do with any action that is taken, period. Second of all, while I have nothing against investigation of illegal action taken during the Bush administration, the idea of “Those two points, along with every single person between them in the chain of command, get to hang,” in my mind amounts to a witch hunt. You find those who committed illegal action on high levels. You punish them accordingly. But you don’t go around throwing every Republican (or Democratic, fwiw) senator who ever backed torture into jail, nor every interrogator who followed orders. And @4—seriously? We’re only 4 comments in before we bring in the Holocaust as a comparison?

  14. stlthy
    April 18, 2009 at 2:22 am

    Why should everyone who was involved in torturing people not be investigated? I’m sorry, Chava, your attitude is exactly what’s wrong with American political culture. When good people can, in all sincerity, claim that investigating/punishing war crimes is ‘too partisan’ and a ‘witch hunt’, there is a really big problem. It’s the very attitude that allows the powerful to commit horrific crimes with the knowledge they’ll never be held accountable. That’s a pretty repugnant and dangerous situation, IMO.

  15. stlthy
    April 18, 2009 at 2:24 am

    Oh, and commenter 4 is correct: ‘just following orders’ was found to be an unacceptable defence at Nuremberg. I’m not sure why pointing that out is a problem?

  16. April 18, 2009 at 2:57 am

    Yeah, it was found to be true at Nuremberg…no argument there. It was just depressingly early in the comments for Godwin’s Law to have taken hold.

    I don’t think any investigation would necessarily be partisan and/or a witch hunt. I just think that it could easily become one and extreme care is necessary, which is why I said this:

    “I have nothing against investigation of illegal action taken during the Bush administration, the idea of “Those two points, along with every single person between them in the chain of command, get to hang,” in my mind amounts to a witch hunt. You find those who committed illegal action on high levels. You punish them accordingly.”

    To go back to Nuremberg for a moment–are you suggesting that we should prosecute our people under international law, in an international tribunal, and (if we’re following that particular example) allow them to be sentenced to death? The Nuremberg trials were run by the victors, because that is how war IS. Not saying those punished didn’t deserve it, just that it was a very different situation and that “international law” is really something of an ephemeral item.

    Anyway, look. I’m not pro-torture or anti- any investigation. But I would be much more inclined to see those at the top of this taken down than the soldiers at the bottom. Yes, perfect soldiers would go to jail, get the tar beaten out of them, or be dishonorably discharged rather than take action they know to be morally wrong. But war is war, it is, at a base level, all morally wrong. In all seriousness, once you’ve started blowing the living s** out of entire cities of people, is that really so much less morally wrong than torturing them? (I know there is to some extent an identifiable line here. But it does start to seem increasingly absurd, and to someone in the middle of it, I can see how it would start to break down).

    And on that perhaps mildly incoherent 4AM note, to bed.

  17. Concerned Citizen
    April 18, 2009 at 9:36 am

    1) I firmly support all that Chava has said. Action driven by dogma, whether it is conservative religious dogma or liberal political dogma, is never a good idea. We are in the habit of saying “justice must be executed on all who violate our personal sense of right and wrong,” even when such action would be hugely detrimental to the stability of our country and the vast amounts of good we do and are capable of doing (food aid, medical aid, UN peacekeeping, diplomatic mediation, etc.)

    2) These documents are old. I know for a fact (because I know people involved), that those documents were re-drafted three years ago to say that waterboarding and other methods endorsed by the Bush administration were torture, and illegal. One of the Bush-appointed Department of Justice attorneys decided that he could not personally read the law the way the administration wanted him to when he re-drafted the memo. In order to make his determination he went to a military base in Virginia and had them waterboard him. Based on that experience he decided that waterboarding was torture and said it was illegal. He was fired for it.

    3) These things are not as simple as the press portrays them. There is history to which we as the general public are not privy because we view it through two filters: government secrecy and media profit seeking.

    In conclusion: Should we pursue those who are responsible for setting policy which was illegal? Yes. Should we prosecute those who followed orders based on that policy? No. Should we commend those who stood up for human rights? Absolutely.

    We can demonstrate our moral stance by holding high those who do good, not just by slapping down those who do wrong.

  18. William
    April 18, 2009 at 10:58 am

    First of all, vengeance should have nothing to do with any action that is taken, period.

    Perhaps that is a worthy ideal, but it isn’t the reality. You cannot separate criminal penalties from the exercise of vengeance. As a society we might have farmed this unplesant human urge to our leaders, but that doesn’t remove it’s existence. Vengeance is going to be a part of any investigation and punishment, we can’t be vigilant against it if we don’t admit its there.

    ou find those who committed illegal action on high levels. You punish them accordingly. But you don’t go around throwing every Republican (or Democratic, fwiw) senator who ever backed torture into jail, nor every interrogator who followed orders.

    It isn’t enough to prosecute on the highest levels. You don’t need to prosecute senators (although, as a matter of opinion, I believe that every senator who placed an affirmative vote for torture is at the very least guilty of dereliction) but you do need to prosecute everyone who committed a crime. That means the people who gave the order, the people who moved the order down the formal chain of command, the the people who ultimately carried the order out. Each is fully culpable for their crimes, each should have spoken up, and people in each of their positions in the future need to know that they can’t hide behind their position in a system. If someone committed, ordered, facilitated, or covered up torture they need to be prosecuted, regardless of how large or small a part of the act they were. Otherwise any response is only a symbol. If that means that a large portion of our armed forces end up in prison along side the politicians that set the stage for war crimes then that is a burden society must bear.

    To go back to Nuremberg for a moment–are you suggesting that we should prosecute our people under international law, in an international tribunal, and (if we’re following that particular example) allow them to be sentenced to death?

    I didn’t bring up Nuremberg, but no, I don’t think we ought to try anyone under an international tribunal. Personally, I’d like to see those in the military charged with dereliction and those in the government tried with treason. Realistically, I think those at the highest levels and those who were involved in particularly egregious abuses ought to face the death penalty and those lower on the ladder facing long prison sentences.

    . In all seriousness, once you’ve started blowing the living s** out of entire cities of people, is that really so much less morally wrong than torturing them?

    Its the difference between shooting a man dead in your home when he breaks in at 2AM and beating him to death over a matter of hours a week later. One is something done in a specific, immediate context, the other is done in cold blood. The problem with torture isn’t just that it is morally wrong but also that it doesn’t work. Everyone involved recognizes that it doesn’t work. Torture isn’t about getting information, it is a moral decay, it is causing pain for the sake of causing pain, it is sadism at a base level. Ultimately, thats why I believe even soldiers ought to be prosecuted. We aren’t talking about dispassionate interrogators applying pain as a method of extracting information. We’re talking about a pattern of abuse that is designed to humiliate the subject and entertain the perpetrator.

  19. April 18, 2009 at 12:09 pm

    Of course it doesn’t work! That much has been shown time and time again. Sleep deprivation in combination with drugs MIGHT give you something, but its going to be pretty unreliable. I do question your assertion that it was always viewed as a form of entertainment, though surely some felt that way–people tend to believe that pain will extract information, even though this has been proven to be incorrect.

    In any case–your example of the immediate context vs “cold blood” doesn’t make any sense. You plan out a bombing in cold blood (hopefully), you decide on a general plan of attack in cold blood, calculate acceptable civilian casulaties, including children, etc, etc. War. is. brutal. It’s less messy and “uncomfortable” (to use your word) to drop a bomb that kills an entire family. I’m not sure it’s less morally culpable.

    Also, your point about vengeance?

    “the discomfort and difficulty of doing something about it outweighs the interests of justice or vengeance.”
    followed by:
    “Perhaps that is a worthy ideal, but it isn’t the reality. You cannot separate criminal penalties from the exercise of vengeance. As a society we might have farmed this unplesant human urge to our leaders, but that doesn’t remove it’s existence. Vengeance is going to be a part of any investigation and punishment, we can’t be vigilant against it if we don’t admit its there.”

    Replace “vengeance” for “torture there, and see how it reads. Your whole argument here hangs on the defense of ideals regardless of pragmatism…seems an odd point to decide to be pragmatic about. I agree with part of your point, that the DESIRE for vengeance motivated justice will always be there. That doesn’t mean the system should give into it.

  20. Amanda in the South Bay
    April 18, 2009 at 2:44 pm

    It should be noticed here that the people who actually interrogated were probably CIA personnel, not soldiers. For a solider to disobey an order, illegal or not, is a totally different matter than it is for a CIA interrogator.

  21. William
    April 18, 2009 at 5:29 pm

    I do question your assertion that it was always viewed as a form of entertainment, though surely some felt that way–people tend to believe that pain will extract information, even though this has been proven to be incorrect.

    The Bush administration didn’t just throw this program together out of some cowboy fantasy. They called in SERE trainers, psychologists, at Gitmo they had several clinical psychologists on site. This was premeditate, designed, and continued for a very long time. Some people might believe that pain would extract information, but within a few trials it would have become apparent that it didn’t. Still, these behaviors continued. That doesn’t leave many options for motive. The photographs from Abu Ghraib also suggest that there was an element of entertainment, of dominance and humiliation for they’re own sake.

    Beyond that you don’t need to look much further than Richard Reid to see a good example of torture continued long after anything could be believed to be gained from it. The isolation and psychological tortures remain a daily reality even long after his mind has broken. I would like to believe that the torturers employed by the US believed they were Jack Bauer, it would be an easier pill to swallow, one with less horror, but the evidence doesn’t support that.

    Replace “vengeance” for “torture there, and see how it reads. Your whole argument here hangs on the defense of ideals regardless of pragmatism…seems an odd point to decide to be pragmatic about. I agree with part of your point, that the DESIRE for vengeance motivated justice will always be there. That doesn’t mean the system should give into it.

    I do believe that our system of justice tortures on a regular basis, thats part of why we were so quick to move to more and more extreme acts. We have a penal system that uses institutionalized rape as a hammer to beat down brown people engaged in victimless crimes. Torture is an intrinsic part of our penal system, as is vengeance. They are not temptations to be given into but basic building blocks of our system. I don’t like that they are there, but I don’t see much of a point ignoring their existence. As a society we made the choice, long ago, that we would empower our government to hurt and torture people who did certain things. Over time we hemmed in the ways we allowed our government to harm people. We dispensed with drawing and quartering, slowly moved to isolation and incarceration. We also decided, around the same time we moved from public punishments of the flesh to private punishments of the soul, that the vengeance of our actions made us uncomfortable. So we convinced ourselves that we weren’t punishing people, no, we were engaging in “correction.” Part of that correction is hurting people in such a way that they are more likely, at least in theory, not to transgress again in the future.

    That is our system, those are the rules, that is what we do. I would like to see that changed. Still, in the mean time, I see no reason why we should make special allowances for the worst of criminals. Every single person involved in a drug bust gets tried, from the kid smoking a joint up to the highest person the government can convince someone to roll on with threats of rape and incarceration. Hell, we specifically target small time criminals so that we can build a case moving up the food chain. Thats SOP. Why not do the same for those who engaged in torture? We’ll threaten a kid with a decade in prison for selling an ounce of pot unless he gives up his boss, but a soldier who tortured a human victim gets a pass because he was following orders. That seems to make the system an even greater farce than it already is.

  22. stlthy
    April 19, 2009 at 1:42 am

    I think that if the US refuses to try the people responsible for war crimes, then absolutely, they should be tried by an international tribunal/court. No one should be exempt from international law just because they’re powerful. It doesn’t seem to be an ephemeral construct when it’s applied to countries determined to be ‘the enemy’? Regarding the possibility of a ‘partisan witch hunt’ – is that really worse than saying ‘oh well we can’t do anything because this, that or the other may happen’? I also really doubt the CIA agents who interrogated, say, Al Qaeda suspects were just naive, inexperienced drones who had no idea of what they were doing.

    No, I don’t think anyone should be hanged – I’m against the death penalty.

  23. Kt D
    April 20, 2009 at 4:52 pm

    I like the point made here. It is true–many of these torturing procedures occurred just within the past two years. If anything, they could not have occurred more than 7 or 8 years ago. And a few years is certainly not what I consider the long-forgotten past. Similarly, those individuals at the top are the ones who should be held accountable, as Feministe points out. But I will defend Obama in that he is certainly aware of the numerous obstacles, questions and decisions facing this country over the next few years (or, more honestly, decades…). So, it is commendable that he wishes to see this country advance and focus on the issues that are most glaring and immediate. Still, it seems that trials for those at the top–those that orchestrated these true human life/war crimes–would not be too time-consuming. I watched an interesting video at newsy.com earlier today where these questions and others were presented, along with various viewpoints and sources. It’s worth looking at:

    http://www.newsy.com/videos/making_sense_of_the_memos/

  24. Bakka
    April 25, 2009 at 7:51 pm

    Recently in Canada, a female who was interested in joining the military in order to be an interrogation specialist was found dead, apparently by suicide: http://www.theglobeandmail.com/servlet/story/RTGAM.20090424.wafghandead0424_1/BNStory/International/home
    As a Canadian, I wonder if this is among the first signs that Canada, too, may have been involved with torture techniques in our interrogations in Afghanistan.

    The Huffington Post speculates that one of the early warning signs that torture was taking place in the US military was the suicide of a female soldier who was not able to reconcile complicity in torture with her moral values:
    http://www.huffingtonpost.com/greg-mitchell/us-soldier-killed-herself_b_190517.html
    Her brother comments on the post (11:27 PM 04/23/2009) and says he thinks this interpretation is probably accurate.

    I certainly hope this is not the case, but I would hope someone would look into this possibility.

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