By now you’ve heard the Obama Administration released the memos used by the Bush Administration to justify torture. As Digby says,

This is the very definition of the banality of evil — a dry, legalistic series of justifications for acts of barbaric cruelty.

Many are angry that the President has promised not to prosecute CIA officials involved in torture. About the only justification for this I’ve seen is from the Anonymous Liberal, who writes,

I know many of you disagree with me on this, but I think Obama did the right thing by promising not to prosecute CIA officers who acted in accordance with the OLC’s prior advice. Given the kind of things these folks are asked to do and the important missions entrusted to them, they have to be able to rely on the legal advice they’re given by the government. If we start prosecuting people for conduct they were specifically advised was legal by the OLC, it will severely hamper our ability to conduct future intelligence work. No one will trust the advice they are given, they’ll worry that the rug will be pulled out from under them at some point down the road. That’s an untenable situation.

But also,

The people who should be punished are the people who gave the advice. The lawyers. The Jay Bybees, John Yoos, and David Addingtons of the world. Obama did the right thing by releasing these memos today. It is now up to us to make sure they generate the degree of outrage that they should.

I am uncomfortable with not prosecuting the CIA officials, since “just following orders” hasn’t been a defense since the Nuremberg Trials. However, releasing the memos themselves was the most important thing, and prosecuting the people who gave the advice is the next most important thing. However, I don’t think that what the White House says about the CIA officials necessarily ties Congress’s hands, does it?

20 thoughts on “Torture

  1. I feel if we want to get to the truth about the things that happened we have to have an environment where those in lower positions feel comfortable telling what they know.Their testimony , with any luck , will lead to justice. Notice Obama didn’t say everyone was safe ….Just cia officials. I don’t care about letting CIA officials go as long as they give us the info we need to deal with the war criminals walking around in our country..

  2. The prosecutions must begin at the top. And must not end there.

    However, I suspect the lack of political will to do so points to the likelihood that our CIA has been crossing the line for decades and once prosecutions start, there’ll be no end to it, with both parties completely disgraced by the fallout.

    And so I’ll be thrilled, if they simply prosecute those at the top. At this point, I still doubt they will.

  3. Obama did say he’d prefer to look forward rather than dwell on the past, didn’t he? He’s made that remark or similar ones in the past regarding this issue and I think it’s exactly the wrong way to look at it. In order to make sure nothing like the Bush years happens again, looking at the past is vitally important. (Imagine if there had been no IMT after WWII.)

    I dislike the idea of hastily glossing over “truth” in any of its guises in favor of political expediency. That being said, doing the right thing would almost certainly hasten the galloping collective insanity of those who’ve lost power the last few years.

  4. I’m not sure what’s going on.
    I think the Spanish courts left this in our hands – rightfully. And I’m hoping that Obama is pulling an FDR, saying, “Go ahead, make me prosecute the big guy’s.”
    I do agree not to start the prosecutions at the bottom. Those people will be needed, though, to prosecute those above them.
    For the love of God (or whatever), we can’t let what’s happened pass…

  5. Surely the goal is to prevent this from happening again? Prosecutions aren’t the way to make this happen. It’s a dangerous political game to go after members of the intelligence agencies of one’s own country when you’re the leader, and I’m not surprised Obama doesn’t want to play it.

  6. The people that should be held primarily accountable are those who are responsible for the law-breaking. But I’d be very surprised there is any accountability whatsoever. The righties couldn’t stand it.

    After WWII, the first IMT went after the top echelon, and subsequent trials covered the lower tiers. It should be the same way now.

    Last I knew, at least wrt our military, a soldier can refuse to carry out an order if he feels it is illegal. It’s shocking and terrible to consider that these people were less interested in the legality or correctness of an action than in covering their asses.

  7. I’m torn. I think the previous comments make reasonable arguments both ways. I do hold out hope (although it’s fading by the day) that Eric Holder will take on “the Jay Bybees, John Yoos, and David Addingtons of the world.”

    And remind me again, where were the April 15th protesters when our government was torturing people– many who turned out to be guilty of nothing more than having brown skin? Are they praising Obama today, for not going after the actual torturers? Course not!

  8. There’s also the fact that obama and others who have talked about it have only promised immunity for cia officers who acted in good faith, according to the limits set in those memos. They did not promise immunity for officers who exceeded the limitations, or who acted in bad faith.

    It seems likely to me, based on published reports and on basic human nature, that most officers DID stay within the limitations … for instance, I believe one of the structures was that throwing somebody against a wall was OK, so long as you had the guy wear a … neck brace, I think? something like that … to eliminate possibility of whiplash.

    How often, would you say, did interrogators stop the interrogation to say, ok, now put this neck brace on… no, don’t worry about why, you’ll see …


  9. mmm .. to clarify a particularly poorly written sentence, it does seem likely to me that most officers exceeded the limitations. So, you won’t find many who couldn’t be prosecuted if somebody really wanted to.


  10. I’m going to get killed for saying this, but I’ll do it anyway.
    How much of this may be a sense of self-preservation on the part of Obama? I’m not just talking about physical survival, I’m also talking about political survival.

    I’m serious. Our CIA has sucked at every other aspect of its mission and has been good for only one thing in the past 60 years, and that is political assassinations (and not very good at that, but reasonably effective) and creating instability. How many South and Central American leaders who didn’t support us died in plane crashes? How much CIA created political instability led to coups?

    Physical survival:
    Was the CIA involved in JFK’s asassination? RFK’s? Maybe MLK’s? I don’t know, but there are a number of reasonably credible authors who say that it’s possible; maybe not all, but possibly one.

    Political suvival:
    How involved were they, or how much did they turn their back when the Iranian Revolution took place?
    How bad was their intel when Carter asked them about saving the hostages via helicopter raid, and was it done on purpose?

    The CIA could conveniently forget to let Obama know about something critical that (for a change) they may know.

    Just food for thought…

  11. Gulag, I’m pretty skeptical that Obama’s afraid the CIA would harm him (or his family) physically, but as you say, it’s not impossible. I remember the Church Hearings of the mid-1970s, when we opened the Pandora’s strongbox of the CIA, and out flew all manner of unthinkable horrors that had been piling up for decades. But that hasn’t been the state of the agency since. Dubya derided and blamed the CIA every chance he got, and the agency (with the exception of Ms. Plame) just took it. If the agency was still capable of “going rogue,” as they say in the movies, I think at the very least Dubya would be missing some of his digits. Possibly from “an accident cutting brush on the ranch.” He behaved like a snotty young punk toward the CIA, and they have a long history of antagonism toward snotty young punks (see: JFK and the Bay of Pigs, not a J.K. Rowling novel). And I don’t think the agency went easy on Dubya because his poppy ran the place during the bad old days. The old CIA hands who worked for Poppy Bush are long gone.

    As for the political-survival question, I can certainly get behind this, but I think it extends beyond the agency itself– to Congress, the Pentagon, the NSA, the FBI, and the centrist voters who chose Obama over Doofy McLoser last November. We progressives still may shudder when we hear the letters “CIA,” but many anti-Bush people rose to the agency’s defense over the past eight years.

    justme makes a good point, too, that Obama and the DoJ may not want to go after the “good Germans just following orders” (yet) because the “good Germans” then will just shut down and make it impossible to sort out what all went on during our post-9/11 torture spree.

  12. I agree that “just following orders” is not a defense, but there comes a time when orders must be presumed legal, as well, unless they are unreasonable on their face.

    Given the circumstances, I think we have to give a pass to the CIA agents who followed orders *if* they kept to the instructions they were given, and if they were reasonable in not stacking methods until it was obvious and clear that they were torture. Because that’s the ugly part of all of this: they wanted to skirt the line of torture, and make it look like it wasn’t quite torture. That was the entire game they were playing, was how to make it look legal.

  13. I like to think that the Obama administration is laying the ground work to prosecute the ones responsible for implementing torture by way of executive directive. Namely Bush, Cheney, Gonzales, and Rumsfeld. The lawyers who provided the legal justifications will get away clean because they only provided an opinion as to the legality of what methods were used.

    When you think back to Rumsfeld with his euphemisms of “enhanced” interrogations you have to know he was describing torture.. and he knew it!

    But whatever, Obama now has the problem of dealing with the torture issue now that his Justice Dept has officially classified what transpired in the interrogations as torture.

    Another valid point brought up by the International court of jurists( or whatever the organization is) is the question of how do you restore the rule of law if you do not honor the rule of law by prosecuting those who break the law?

    I guess we can just kick it down the road for the Palin administration to deal with.

  14. “Just following orders” was, in fact, not a valid defense at Nuremberg. But remember that they only prosecuted 207 people at those trials; 22 at the first War Criminals trials, and 185 in a series of follow-on trials (cite: Wikipedia). There were a lot of others, probably tens of thousands, who “just followed orders” as well; Nuremberg went after their leaders. I don’t see any conflict with the Nuremberg principles in granting reasonable immunity for the guys in the field, if they in fact depended on and followed the guidance given by OLC.

    Bybee? Yoo? Addington? They need to spend a good many years in a very small, secure room, pondering their hideous acts.

  15. Seems to me that anonymous liberal has it right. It’s pretty obvious that these memo’s were written for two reasons, 1-to answer questions of legality by the CIA interrogators, 2-to provide legal cover for the Bu$hco leadership. I think they effectively accomplished both, so the only people left for prosecution are the lawyers who misrepresented the law.

  16. I think going after the top gang; e.g., Bush, Cheney, Gonzales, Rumsfeld, is the first step in prosecution. And, if people think these scumbag attorneys shouldn’t be prosecuted, the very least that should be done is that they all get disbarred. Bybee is a Federal Judge; Yoo teaches law–neither should be allowed to earn a living in these fields. But, we cannot go forward without holding these people accountable. Last night, Keith Olbermann showed all the instances of what goes wrong when you tried to move forward without having accountability.

    As a former 31-year Federal Government employee (non-CIA), we have always had the rule that if we were asked to do anything illegal or immoral, we could refuse and not be considered insubordinate. I should think that went for any CIA employee, too.

  17. I disagree that this should be a top down prosecution. Rather, this is a classic RICO prosecution, and as such we have to work from the captains and capos on up. I certainly hope that the CIA officials who won’t be prosecuted will be providing evidence in one form or another.

    Let’s be clear about the obvious. Bybee and Yoo were producing a product. These opinions were absurd. They were following Addington’s instructions.

    Cheney’s office was a criminal organization operating under the guise of “policy decisions”.

  18. This is an interesting discussion, especially in light of the impending deportation of an 80 something former nazi prison guard who is retired from the UAW(American citizen!).
    If it was up to me, I’d say leave the old man alone and deport all the heads of the Bush administration and fire every CIA and military officer involved… and jerk their retirements. I hope bezelbub has a special devil put aside for ‘Berto, Rummy, Cheney,and Feith.
    As for Dubya, his hell is observing the shit pile he created.
    May he live in interesting times.
    I recall visiting a ‘site called “the CIA’s greatest hits”, what an eye opener.

  19. AnonymousLiberal does make and excellent point. I do not know if I agree with it or not, but it is certainly a valid argument.

    I do disagree, however, that prosecutions must start at the top. Historically, many high ranking people have been brought to justice by first convicting those below them. If the Justice Department can secure a few low level convictions or plea bargains, then it will be much easier to prosecute those above them.

  20. I’ve thought about this issue a little longer and must add how dangerous it is. We seem to have some 30 – 40% of Americans who simply can not process or comprehend complex information. They have become a subservent to Rush Limbaugh, Sean Hannity and the rest of the noise machine. Anything written or broadcasted in the media is simply dismissed as “liberal.” Look at some issues: global warming is a “hoax” on the part of profiteering liberal scientists (I don’t understand the profiteering part); health care, we can’t have the government “run” health care, thats socialism (the incredible fact that perhaps that leaves 20% of us with no health care doesn’t get mentioned); gun control, the government can’t resrict our right to bear arms anywhere, regardless of the number of people murdered on our streets every day. This is just off the top of my head, but the point is problems exist in America today and these folks have disabled our system of government by using opinions as fact. Its dangerous!

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