The Question's No One's Asking

Over the past few days, there's been a tremendous amount of discussion about the prudential value of prosecuting torturers, and perhaps their legal advisers as well. The New York Times has even advocated that now-Judge Jay Bybee should be impeached for his role as lead drafter of the legal memos in question. 

In a variety of places, people have alluded to, or even stated explicitly, what one might call the Nuremberg Rule that following orders is no excuse for crimes, especially war crimes. I support that standard, and nothing that follows should be at all taken as an argument against that.

But we do need to recognize that there's a problem here: people whose very jobs are secret probably have trouble getting third-party legal advice. They're usually not lawyers, so they probably don't have the knowledge to see how one-sided and ineffectual the arguments presented are. I've read memos that led to lawyers being disbarred that were less dishonest in their presentation of relevant case law and argument.

When we put patriotic people in conditions where we tell them it's necessary, ordered, and legal, it's simply hard for anyone, regardless of character, not to trust in that legal claim. This is particularly true when the very act seems shocking to the conscience. Of course most of us would naturally believe that such an act would only be ordered, could only be ordered, if it was legal and utterly necessary to keep your country safe. 

So how do we make it possible for people who work in a secret world to get actual, proper legal advice? 

I'm not a lawyer, but my understanding is that the laws covering classification mean that they can't usually talk to outside counsel, even under the seal of attorney-client privilege. I also strongly suspect that the interrogators involved won't have the ability to sue the lawyers who gave that advice. The list of privileges that apply, such as state secrets, sovereign immunity, the fact that they weren't representing the interrogators, and, oh yeah, that one of them is a judge now, makes it pretty hard for the people who willingly followed that advice to gain redress. Overall, those rules make sense in the context of broader law. 

But these problems arose in a state of exception. If the facts are as they have been presented so far, we need a means for individuals in classified situations to get independent legal counsel. Even if you think that these interrogators should have been able to make this decision on their own, the fact is simply that it didn't happen enough. Having lawyers they could check with, that would not quash lingering doubts, but rather consider them genuinely and render an impartial opinion, would increase the likelihood that people would refuse illegal orders. Not being in that profession, I have no clue what such a legal capability would look like, but it sure seems necessary.*

If you believe that torture's wrong, don't just condemn it, or its advocates. Try to find a way to make it much harder in the future.

*As is broader oversight, greater focus on these issues in confirmation hearings, legal reforms, etc. 

Poulos and Torture

James Poulos is a very, very smart man. But I'm utterly dumbstruck at his latest post on the new Postmodern Conservative blog.

He offers up, in admittedly what he describes as a brief post deserving followup, that:

[S]ince I’m on record as saying that one dunk at the waterboard is not torture, whereas three dunks is, I judge 130+ dunks clearly to be torture, regardless of whether the issue is whether we ought to torture or not.

He further amplifies in the comments section of that post that:

My argument turns on two points, one more controversial, I guess, than the other. The more controversial claim is that nothing done once can be torture. I admit that waterboarding is ‘a procedure’ whereas, say, ripping out someone’s thumbnail once is not very intelligibly described as a procedure. But it seems to be that ‘proceduralizing’ things is of the essence of torture. Jumping out of nowhere, ONCE, screaming and pointing a gun: not torture. Building a process or an ordeal out of this event — and the distinction between one and three is that once is once and three is a pattern, while two is ambiguous — does lead us into probable torture territory. The less controversial claim is that we should resist the temptation to do the moral calculus that leads us to a precise decision about how many iterations we can perform before switching over into torture, because under the sway of this temptation our moral calculus turns quickly, if imperceptibly, into a legal calculus, which allows us to justify our conduct in legal terms so as to avoid having to do so in moral terms.

This argument, though tempting, is disturbingly compromising. Because the problem with torture isn't that we hurt the prisoner too many times, or too badly. It's that doing it even once can break a man.

Singular acts can alter the way we see someone - or the way we see ourselves - traumatically and persistently. I can't imagine that a person who's been struck once by their spouse ever can entirely reassert the same sort of unconscious familiarity and trust in him that they once had. While being waterboarded, even once, men are willing to do anything to make it stop. 

How will the man being tortured know, or credit, that he only gets one waterboarding, one day of being forced to stand in a stress position, one time of being slammed up against the wall so hard that whiplash can only be "minimized," not prevented?  

 He has to live with the knowledge that the men holding his used pain, and his body's own preservation instincts, to break him, just once. His jailers have done something that takes away not only his freedom of movement but his freedom to even say "NO." Why won't they do it again? 

So: He has to live with the constant, will-eroding fear of each dragging moment, never knowing whether footsteps in the hall are the torturer's approach or just the changing of the guard. He has been made to betray himself. He may be made to do it again. 

And that is unacceptable to a nation built upon the freedom of the mind of man. 

Conservatives Opposed to Torture

1. Conor Friedersdorf powerfully links opposition to torture to legal traditionalism.

2. Philip Zelikow tells of how he tried to argue against the torture memos in the Bush administration.

Since Spencer Ackerman Asked...

Spencer Ackerman's looking for anti-torture conservatives that are willing to stand up to those who ruined my party's honor and good name.

So: I'm a conservative*, and I think that torture is immoral, illegal, and, oh yeah, entirely useless as a means of interrogation. Even if it worked perfectly, it wouldn't be justified. Ever. 

There is no outcome that can justify the government of the people endorsing waterboarding, or repeatedly locking someone in a dark room with their greatest fear. Torture doesn't preserve the health of the people; it makes them parties to monstrosity. 

I have a lot of way-more-brilliant conservative friends. Some of them are genuinely brilliant writers whose names you've heard of; I'm not going to out them, but in the days to come, I'll ask some of them to contribute their own thoughts on why torture's wrong.

*According to my friends, "no I'm not!" But I'm certain that I'm at least philosophically conservative, gosh darn it.