Shostack + Friends Blog Archive


Who should be punished for torture?

Normally, I try to post funny bits over the weekend, but I can’t let this week’s news slip by.

I have deeply mixed feelings about how to handle those who tortured. On the one hand, they were only following orders. On the other hand, they were following orders which clearly required contortions to see as legal. Soldiers also have a duty to disobey manifestly illegal orders.

  • The OLC Memos” by Gerard Magliocca analyses the analysis, and finds it wanting. (Concurring Opinions)
  • A History of Coercive Interrogation” is Will Levi’s summary of his forthcoming Yale Law Journal article on “Interrogation’s Law.” From the abstract: “Conventional wisdom [is] U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false.”
  • At Obsidian Wings, Hilzoy makes “The Obvious Comparison” for one newly revealed technique.
  • Torture and “laying blame for the past”” is Sonja Starr’s analysis of the Convention Against Torture, which seems to require prosecution. By this analysis Obama’s dichotomy of “reflection, not retribution” is the wrong one. The correct one is “do we start obeying the laws we passed, or not?” (Concurring Opinions)
  • The Unreleased Torture Memo by David Luban has a quite cutting response to the “second-guessing argument” at Balkinization.

As I said, I have mixed feelings about the perhaps legally required prosecution of those who tortured. My feelings about those who authorized it are more varied..they range from hanging to extraordinary rendition under the standards they claimed as legal.

Please keep comments as civil as is reasonable for the topic.

9 comments on "Who should be punished for torture?"

  • Chris says:

    Amos N. Guiora wrote a pretty good book called “Constitutional Limits of Coercive Interrogation”. Here’s the talk he gave about it –
    I think I have approximately the same ambivalent feelings. Gut feeling is that interrogators, police, other authorities… need regular reminders of what they’re doing. They need to be able to take it as well as give it. “Officer Jones – it’s time for your yearly tasering!”
    Correct me if I’m wrong, but can’t a presidential directive authorize just about anything? If that’s so, extreme interrogation procedures wouldn’t necessarily be manifestly illegal, just morally repugnant. Somehow I don’t think soldiers get to say “no, that makes me feel icky”, they probably have to cite a regulation/law/code to refuse an order. I wouldn’t know – I’ve never been a soldier. Call me a cynic, but I suspect some deft manipulation could easily convince the right sort of people that such procedures aren’t illegal, and are probably a good idea… It’s not like the last 8 years have been the model of rational behavior and wisdom.
    So if you want to punish someone, pick on the guy who authorized these measures.

  • Walsh says:

    You’re wrong.
    A presidential directive cannot authorize something which is a violation of the law. We have divided powers for — among several others — *exactly* this reason. The colonial experience with monarchy was one which left an unpleasant aftertaste.

  • David Brodbeck says:

    Sadly, like many things, this comes down to politics. If Obama allows prosecution, Republicans will see this as a political act against their party. Since it takes 60 votes to get anything done in the Senate, that would effectively end Obama’s chances of passing any of his agenda.

  • Toby says:

    Paraphrasing early sections of Philippe Sands’ “Torture Team”, Allen Lane Publishers, 2008:
    Soldiers have specific manuals that govern all of their actions, including interrogation. US Army Field Manual 34-52 is the one that governed interrogations at Guantanamo Bay during the relevant period. FM 34-52 is heavily influenced by the Geneva Conventions.
    Quoting Sands (p. 11)
    “FM 34-52 reflected a strong and modern commitment by the US military to apply these [Geneva etc.] international rules of law. Until September 11 no one thought FM 32-54 was quaint or obsolete.” … “It prohibited the use of force, meaning all acts of violence or intimidation, including ‘physical or mental torture, threats, insults or exposure to inhuman treatment as a means of or aid to interrogation’.”
    Soldiers don’t get to say “no, that makes me feel icky” but they are required by their training and the law to say “no that’s illegal and contravenes the manuals I’m supposed to follow.” This is why these manuals exist and is why they’re framed in terms of the international human rights agreements to which the US has agreed to uphold.
    It is these documents, like FM 34-52, that reflect America’s commitment to valour and honour in its armed services. Americans should rightly be proud of them and the leading role it has taken in the promotion of international human rights since WWII. These documents must be respected and upheld, however, and those who may have contravened them prosecuted publicly fairly and openly, to ensure that America’s commitment to valour and honour is maintained in difficult times, when it is most necessary.
    However, I agree that this is probably a political impossibility.

  • beri says:

    The last people who used the “I was just following orders” were the Nazis. There can be no justification for torture, period. Soldiers in the US Army who obey an order to torture would be subject to court martial for obeying an illegal order.
    If this country is serious about erasing this stain from our national honor, we must prosecute those who tried to make it legal to do what is forbidden under international law and to prosecute those who willingly did something which is illegal under international law, no matter the contortions of the Bush White House.
    There is such a thing as personal responsibility.

  • David Brodbeck says:

    @Toby: There’s also the issue of the soldiers and/or CIA operatives who were carrying this out being able to discern the law. The Bush Administration had a legal opinion from the Attorney General saying this stuff was legal. It seems to me that if the top lawyer in the country says something is legal, expecting a soldier to refuse to do it on legal grounds is asking an awful lot, and would probably result in a court martial.

  • Nik says:

    Phil Zimbardo’s “The Lucifer Effect” is well worth reading for the psychological background (Zimbardo is best known for the Stanford Prisoner Experiment, and the book details this in the context of his more recent involvement with the Abu Graib trials).
    It’s a difficult situation; given the declassified memos it would appear that the “operations” end would have viewed their actions as legal (leaving aside the moral/ethical issues for now).
    I appreciate the commitment to FM 34-52 and the like, and their adherence to international law. However it is very clear that these were not followed at Abu Graib or in various other holding facilities. This is a failure of command authority in no small part to the previous administration failing to categorically condemn torture. There is also the problem that the current international laws on armed conflict are somewhat dated and hard to apply clearly to the non-state actor conflicts we’re embroiled in.
    Personally I think the people who should be answering for these abuses are the senior command structure, but that’s not likely to happen in the current political climate.
    I’m a Brit and it’s interesting to note how unfairly some of this is reported. The abuses at Abu Graib, for example, were revealed by US servicemen not investigative reporters. The British press condemning the US are quick to forget what we went through in Northern Ireland, where similar abuses occurred in the 70s and 80s. I’m fortunate enough to know personally a number of US servicemen and they do your country proud IMHO.

  • Walsh says:

    They waterboarded one guy 83 times after being told he had already told all he knew.
    Jut sayin’

  • Roger says:

    The turning point of all of this is the definition of “torture”. The United Nations Convention Against Torture and most legislation deriving from it says that torture is an act which causes “severe pain or suffering, whether physical or mental,” (emphasis added.)
    Of course it cannot criminalise any level of pain whatsoever, because it is impossible to capture an armed enemy combatant without some degree of force, and the process of being captured by your enemies is bound to cause some degree of mental distress. But it doesn’t define “severe”, which is a problem because one person’s “severe pain” is another person’s normal day at the office. On the one hand we have certain human rights activists claiming that sleep deprivation is torture (in which case I need to sue my university and several employers for the “anguish” of all night coding sessions), on the other hand we have lawyers giving the formal opinion that mental anguish is not “severe” unless it includes the fear of imminent death.
    This fuzziness becomes especially problematic when we look at the spectrum of interrogation treatments that have been claimed to be torture, and the people doing it. I don’t think that in the cold light of day, many people would claim that “water boarding” is not a form of torture, or at the very least a very dubious borderline case. But many of the other “tortures” are in fact pretty tame stuff that most soldiers (and indeed police, emergency response, and many blue collar workers in general) frequently experience in their daily working life. When I had a job like that all of the following “tortures” happened to me on a regular basis: working (and sleeping) in the cold, including working immersed in cold, dirty water; working remote sites where the only way to bathe, for weeks at a time, is to strip in a location with no privacy and get under a cold hose; going without sleep for more than 36 hours (and a couple of times, for more than 50 hours); going without meals for extended periods; getting buzzed by scary looking bugs (and unlike those “torture victims”, actually bitten by the scary looking bugs, as well as by mosquitoes, sand-flies, leeches, etc.); being required to stand still for hours at a time; getting screamed at by irate scene commanders. I sure didn’t think I was being tortured. Sure, parts of it weren’t much fun, but that’s why it’s a job not a hobby. No doubt some cosseted white collar workers would be shocked witless by such treatment — and any blue collar worker would laugh himself silly at your panty-waisted effeminacy.
    You may or may not agree with my opinion there, but I hope you can at least see how this looks from the point of view of the interrogator who has already been assured that the lawyers have approved everything. If he hears it suggested that the “Cold Cell” is torture (when he knows perfectly well that he himself is sleeping outside in a tent), or that sleep deprivation is torture (when he himself hasn’t had more than 3 hours in a row for weeks, and is running on a diet of caffeine and nicotine), the accusations sound so foolish that it becomes much easier — perhaps almost automatic — to deride them again when doubts are raised about more dubious techniques, even if he has some niggling qualms himself.

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