Update: See this: CIA exemption is the wrong thing to do

I do not disagree with Obama’s decision to pre-pardon CIA agents who tortured people at Gitmo and elsewhere. (See this.) The only reason to not pardon them is to use them to get to higher-ups who should actually be prosecuted. These on the ground operatives are the ones who, like it or not, need to do what they are told even when they may well “know” it is wrong. As long as they were not acting as rogue agents, they should be immune, and they should certainly not take the fall for what Bush, Cheney and their cronies did.

Comments

  1. #1 Jadehawk
    April 17, 2009

    huh?

    I thought “I was only following orders” didn’t count as an excuse anymore?

    I think they should be winning their pardon like all the other crooks in American history: by telling on their bosses.

  2. #2 Greg Laden
    April 17, 2009

    Jadehawk: I essentially agree with both of your points, but this is different for a couple of reasons. First, as I mention in my post, we do have these special individuals whom we ask to “only follow orders” under special circumstances. In truth, given the basic nature of reality, we very well may need such individuals. What happened here is not that the on the ground operatives went overboard (though that may have happened, it isn’t the major point). What happened is that a bunch of out of control cowboys (from Texas, I might add) got to be in charge of the most powerful military and intelligence system in the world and acted terribly irresponsibly.

    Yes, you have the issue of getting a nice flock of canaries working, but these guys are not the only possible canaries. There is a great distance between CIA grunts and the POTUS. Flocks and flocks of canaries.

    Then, there is the issue that a liberal African American Democratic community organizer has to get his ducks in a row, regarding how he manages this government that he is in charge of. Just because disobeying the chain of command is treasonous does not mean it won’t happen. The military is still full of selfish unpatriotic Yahoos (mainly from Texas, as it happens) who would stick it to Obama in a second. He needs to build loyalty in key places. Let him do it.

  3. #3 gruntled atheist
    April 17, 2009

    I heartily agree with your article and your comment. I wish more people realized that rushing this process will not produce the best result.

  4. #4 DuWayne
    April 18, 2009

    Honestly Jadehawk, I think that there is a definite need for people who, even if their orders are wrong, need to follow orders. We absolutely need people who are willing to do things that they believe absolutely are wrong, because they know that sometimes those things need to be done. This is not to condone torture, but to condone the people who accept that their job isn’t to work out what wrong things qualify as critical or not, there job is to carry out the orders of the one’s who’s job it is to make that distinction.

    We are talking about men and women who are placed into extraordinary situations, dealing with extraordinary problems and there aree times when they have to take extraordinary actions. They occasionally have to do things they may firmly believe are immoral. They may occasionally have to do things that are not legal – or wouldn’t be if they hadn’t been approved by the folks who make and enforce the laws.

    And we are safer, because there are people willing to do that on our behalf.

    This doesn’t make everything they do acceptable, nor does it absolve them of all responsibility. But it does provide them with a great deal of leeway.

  5. #5 Jim Lund
    April 18, 2009

    I would prefer to have government officials who *don’t* follow orders to torture people.

    The US has laws against torture. These people violated the law by torturing US prisoners. This was not a case where the law was unclear and the OLC memos resolved ambiguity of law. Illegal torture was ordered, carried out, and refined with tools of science to be more maddening and painful.

    The OLC memos offered political cover–the legal arguments are ridiculous. Medieval torture was carried out for months and years. I expect the law to be followed and severe violations of law to be prosecuted.

    If these crimes go unpunished (at this point many criminals have been *rewarded* with promotion and advancement) then they will be slotted back in by the next Republican administration. Experienced torturers up and down the chain of command will be present to establish and normalize the bloody activity once again. This discussion is not just about the past but about our plans for the future.

  6. #6 gruebait
    April 18, 2009

    Prosecution of agents who were given instructions on the legality of interrogation tactics by the Justice Department who gave them the instructions would be more than a little awkward, and a bit unjust.

  7. #7 Left_Wing_Fox
    April 18, 2009

    At this point, I am highly pessimistic that anyone is going to be convicted of anything,

  8. #8 Jim Lund
    April 18, 2009

    There is no law, rule, or custom where the US President can order actions that are illegal. The President’s responsibility is to “faithfully execute” federal law. The OLC only writes clarifying memos in situations that are legally ambiguous.

    It does suck to have your boss order you to commit crimes, especially when the approval comes ultimately from the President. The CIA agents and civilian contractors could always decline to commit crimes. Resign. Perhaps, if they were brave and patriotic, sound the alarm that evil was afoot.

    When I think of justice I think of the people who were tortured and people who will be tortured next if this is allowed to stand as US policy and practice.

  9. #9 Aaron Luchko
    April 18, 2009

    Greg,

    I agree with this post.

    There are a few things to consider, first if the Milgram experiment is any indication people are very susceptible to following a superiors orders.

    Furthermore if you look at the military (or in this case the CIA) following orders and a strong hierarchy is a quality that is very highly valued.

    Finally the legality of the detainee treatment is not a topic where there is unanimous agreement. I don’t think it’s just to punish the operatives when they were following orders that they very well may have believed were proper.

    In fact as much as I hate Bush and Cheney I don’t even think they should be legally pursued on the torture aspect. It’s just too ambiguous an issue on where you draw the line. At the end of the day the tactics used are still the subject of active political debate, I don’t think it’s wise to set a precedent where you charge a leader for an issue that’s the subject of legitimate debate.

  10. #10 Phaedrus
    April 18, 2009

    Saw this point on another blog, so I didnt’ make it up – but what about rape? Would you be cool with the CIA going around raping women because the OLC said it was legal? I find it to be a real apt analogy.

    Here’s some more info about the process you are defending :

    The first use of waterboarding and other rough treatment against a prisoner from Al Qaeda was ordered by senior Central Intelligence Agency officials despite the belief of interrogators that the prisoner had already told them all he knew, according to former intelligence officials and a footnote in a newly released legal memorandum.

    The escalation to especially brutal interrogation tactics against the prisoner, Abu Zubaydah, including confining him in boxes and slamming him against the wall, was ordered by officials at C.I.A. headquarters based on a highly inflated assessment of his importance, interviews and a review of newly released documents show.

    Abu Zubaydah had provided much valuable information under less severe treatment, and the harsher handling produced no breakthroughs, according to one former intelligence official with direct knowledge of the case. Instead, watching his torment caused great distress to his captors, the official said.< \b>

    I think as information comes out it is going to get harder and harder to defend the American torturers. Can you believe I said that – American torturers… Can you believe that people in Amreica support this? Times have changed.

  11. #11 peter
    April 18, 2009

    “These on the ground operatives are the ones who, like it or not, need to do what they are told even when they may well “know” it is wrong.”

    This is the most outrageous thing that I have read so far on this site.
    Any person involved had the perfect right to refuse orders contrary to their conscience. Not doing so, and agreeing to perform illegal acts or even acts that one in the context of the regular practices of American society should have deemed immoral and indefensible, the perpetrator is as guilty as the one in charge ordering such acts.

    Being of German origin, and having followed the trials of Nazi war criminals – especially commanders and other personnel of extermination camps – you must not be aware that during those trials this defense was usually thrown out, and only permitted concerning situations where the perpetrators life was clearly threatened with death when not following orders.

    Is this a defense of a president who shows more and more that he is unwilling or unable to fulfill the promises ans ecpectations he had raised to get elected?
    The latest news as to his dealings with the Bush government legacy are not very promising, and instead of trying to defend indefensible actions and decisions, he should be held accountable to the electorate and deftly criticized for continuing stonewalling investigations and legal actions against his predecessor and his gang of rogues.

  12. #12 DuWayne
    April 18, 2009

    peter -

    We’re not talking about soldiers, we’re talking about people who are in a position where moral ambiguity is a job requirement. We ask intelligence agents to do things that they may well believe are immoral and occasionally illegal and we need them to do as they are told. There are points where they should balk, but with intelligence operatives, those points are far more “fuzzy” than they are for soldiers or law enforcement.

  13. #13 Oscar Zoalaster
    April 18, 2009

    These on the ground operatives are the ones who, like it or not, need to do what they are told even when they may well “know” it is wrong. As long as they were not acting as rogue agents, they should be immune,

    So if you, or someone important to you, had been abused by these people you would still feel the same way? They were only following orders, so ‘no harm, no foul’? My impression is that you assume such things can never happen to you or people you care about, so you assume that everything is just fine.

    Torture is wrong, it is never acceptable. Those who ordered the torture and those who committed the torture should all be held to account for their actions. No exceptions. Refusing to prosecute someone for a violent crime has never been shown to decrease recidivism. No one is above the law, and the only way to be exonerated of a crime is through a trial.

  14. #14 Oscar Zoalaster
    April 18, 2009

    we’re talking about people who are in a position where moral ambiguity is a job requirement. We ask intelligence agents to do things that they may well believe are immoral and occasionally illegal and we need them to do as they are told. There are points where they should balk, but with intelligence operatives, those points are far more “fuzzy” than they are for soldiers or law enforcement.

    Complete and utter nonsense. Morality is not a variable in a job requirement. If it is immoral for me to kidnap and torture someone, it is immoral for a government agent to do the same thing. Any other position will eventually result in ‘people like you’ (in whatever way you would prefer to categorize yourself) being put on the list of people whom it is acceptable to torture. Torture is wrong, it is never acceptable, and it is always immoral – no matter what your job is or how much you are paid, or who ‘approves’ it.

  15. #15 Irene Delse
    April 18, 2009

    “The military is still full of selfish unpatriotic Yahoos (mainly from Texas, as it happens) who would stick it to Obama in a second. He needs to build loyalty in key places. Let him do it.”

    *shivers*

    I see Greg’s point, even if it’s an unhappy and morally abhorrent solution. But it’s basically the same problem faced by the leaders of Chile and Argentina in the years following the fall of their respective juntas: it’s difficult to prosecute people who have a) a lot of weapons, b) a efficient chain of command. Even if you are in theory at the top of that chain. Because the same people who follow orders when they are told to torture detainees may not be so obedient when it comes to accounting for their crimes. You have to hope that they agree to obey you in exchange for a promise of letting them go on with their careers. And hope that in time, they forget that you are not “one of them” and follow you as obediently as they did their former Commander in chief. Then, maybe, you can hope to make them agree to train the next generation of grunts with better standards.

  16. #16 Jadehawk
    April 18, 2009

    *sigh*

    the more i read stuff like this, the more I think the CIA was and is a really bad idea, at least as it exists right now. I’m sorry, but I find the concept that for some people it’s ok to do illegal things because it’s part of their job completely and utterly reprehensible. Especially in the context of the CIA, which seems to exist for the sole purpose of fucking up other nations; which supposedly is all done for the benefit of the U.S. and even teh world, but in reality is bad for the world and tends to bite America in its collective ass on a regular basis as well.

  17. #17 Greg Laden
    April 18, 2009

    Phaedrus: Your analogy to rape is a good one, and it underscores the despicable nature of this entire thing. And one could make a similar point about shotting someone in the head.

    Of coruse, three navy seals just shot three guys in the head of the coast of somalia. They murdered three people and they did so under orders.

    The reason the rape analogy does not work is that it has been a long time since rape was considered a valid weapon of either war or of intelligence gathering, but torture has been considered valid in information gathering and still is.

    Also, as I have said above, I don’t think on the ground operatives should be pardoned or let off for independently going to far or acting inappropriately, although I think it has to be admitted that if a pardon is going to be used some people are going to get away with this.

  18. #18 Greg Laden
    April 18, 2009

    peter: Your outrage is easy if you decontextualize mystatements. Herr Goebbels would be proud of your sophistry. Not nice.

    You are ignoring the fact that these were not considered illegal acts. Which is the whole point. There was a top down justification of the legality of the interrogation techniques, which were being carried out in what was an illegal prison that was justified form the top down as being legal, and done on people’s whose rights were stripped from them in a manner that was justified form the top down as legal.

    Check your German history a little more closely. You must realize that the attempted assasinations of Hitler, which we all wish had not failed, were absolutely illegal acts being carried out by people who may well have known the illegality of those acts. For instance.

    Oscar: “so ‘no harm, no foul’?” .. no, there was a great deal of harm and there was something much more than a foul. This was an atrocity. You would need to read and think beyond your nose to get the point here, possibly.

    I agree that torture is wrong and that it is never acceptable. I’m not sure why you would think I think otherwise.

    but I find the concept that for some people it’s ok to do illegal things because it’s part of their job completely and utterly reprehensible.

    I agree with you, but you have to realize that this is not what is at issue here. What is at issue here is how does a guy like Obama manage the transition from the horrific irresponsible evil government set up by Bush and Cheney in a thoughtful effective manner and not have it all fall apart along the way.

  19. #19 Phaedrus
    April 18, 2009

    Greg, I’d like you to expand on this assertion :

    The reason the rape analogy does not work is that it has been a long time since rape was considered a valid weapon of either war or of intelligence gathering, but torture has been considered valid in information gathering and still is.

  20. #20 DuWayne
    April 18, 2009

    Oscar -

    Complete and utter nonsense. Morality is not a variable in a job requirement.

    That is entirely dependent on the job, beyond the discussion at hand, there are a great many jobs where morality is an absolutely critical variable in the job requirement. And in the context of intelligence operatives, the ability to set one’s moral frame to the side is also essential.

    You are living in a very naive little world, if you don’t believe that situations arise that require actions that fall outside the parameters of the moral frame of most people and even outside the parameters of law. This is not to say that there don’t exist lines that cannot be crossed, nor am I arguing to justify torture. I am merely arguing that when we put people into a position that requires they take actions that are both immoral/illegal and absolutely essential to our national security and the security of others, we need to understand that for these people, the line is a lot harder to define than it is for most of us.

    If it is immoral for me to kidnap and torture someone, it is immoral for a government agent to do the same thing.

    First, just because something happens to be immoral to you, doesn’t make it immoral for others – including government agents. Though I agree with you about kidnapping and torture.

    But you are completely missing my point – it is, unfortunate as it is, occasionally essential for people to commit acts that are inherently immoral and even illegal.

    Any other position will eventually result in ‘people like you’ (in whatever way you would prefer to categorize yourself) being put on the list of people whom it is acceptable to torture.

    Oy – again, I am not justifying torture. But I have to chuckle, given that I am on a list of people who get flagged at the fucking airport. When last I flew, I was taken out of line and questioned for about twenty minutes. I was allowed on the plane eventually, but when I asked if this would deal with the problem, I was assured that I could pretty much expect this or something like it every time I fly.

    Refusing to prosecute someone for a violent crime has never been shown to decrease recidivism.

    While there are almost certainly operatives who were involved in this, who had no problems whatever with what they were doing, by the few accounts that have come out there weren’t many of those. And even those who were, are very unlikely to ever do this or anything else in the line of duty, without explicit orders to do so or a clear understanding of what they are allowed/expected to do.

    No one is above the law, and the only way to be exonerated of a crime is through a trial.

    So lets say that there is a rogue element in the British government. We have no idea how far this rogue element goes in their government – who is involved, so discussing it with them is not a reasonable proposition. Running an intelligence operation on their soil without the permission of their government is illegal – not just by their laws, but according to our own.

    Do we just decide that because any action would be illegal or too risky, we simply can’t get involved? What if this not only affected their national security, but our own?

    And there is more than one way to be exonerated – presidential pardon and making deals with prosecutors are both effective, the latter being used thousands, if not hundreds of thousands of times a day in this country. Presidential pardon is a very convenient method for exonerating intelligence operatives, by the way. Greg mentions the attempted assassination of Hiltler – which was against our laws. How do you think the men involved avoided prosecution? There is a fair amount of evidence that our government fostered multiple attempts to assassinate Saddam Hussein, among other petty tyrants. Do you think that the people involved in those attempts are facing prosecution? Do you believe they, or the ones who went after Hitler should face charges?

    jadehakw -

    I’m sorry, but I find the concept that for some people it’s ok to do illegal things because it’s part of their job completely and utterly reprehensible.

    So let me ask you the same questions about that I laid on Oscar.

    Should those involved in the attempt on Hilter’s life be prosecuted? Should operatives and those instructing them just ignore threats, because following up on them would require (non-violent) illegal activities?

    Especially in the context of the CIA, which seems to exist for the sole purpose of fucking up other nations; which supposedly is all done for the benefit of the U.S. and even teh world, but in reality is bad for the world and tends to bite America in its collective ass on a regular basis as well.

    Keep in mind that the only things we actually hear about are the fuck-ups and atrocities so big that they couldn’t be covered, the odd leak and operations that happened fifty+ years ago.

    This is not reasonable argument for no more intelligence gathering or accepting that occasionally it is not only acceptable, but necessary to break the law or act against one’s moral frame. It is merely an argument for better oversight of intelligence operations and more importantly, the people defining and ordering said operations.

    Greg -

    I agree with you…

    I would be interested to know how you would also answer the aforementioned, relevant questions.

  21. #21 Greg Laden
    April 18, 2009

    Phaedrus: I’ll need you to expand on your request for expansion because I have no idea what you mean.

  22. #22 Phaedrus
    April 18, 2009

    Sorry Greg,
    My main question would be who are you referencing when you say that rape is no longer seen as a tool of war or intelligence gathering? And could you point me towards authoritative sources that say torture is a valid method of war and/or intelligence gathering?

    The experienced interrogators I have heard and read all say that torture doesn’t work, and they even say that this is widely known through the intelligence community. The only people I have heard selling terrorism are conservative talk show hosts, past administration officials with a vested interest in staying out of jail, and that segment of our society that see the show ’24′ as a documentary.
    I don’t mean to start a flame war, but I would be very interested in reading an informative debate or piece about torture, it is a topic much discussed by me and friends in the last five years.

    As for rape, there are plenty of people in the world (specifically the portion of the world some of your wonderful posts are about, Africa) who view rape as a legitimate tool of war, etc.

  23. #23 Greg Laden
    April 18, 2009

    Phaedrus: we both need to pick our contexts and stick with it. You can’t argue that since rape is used in some parts of the world it is therefore part of the toolkit, but then claim that because modern intelligence experts you happen to know disavow the effecitvness of torture, it is not a valid part of the toolkit.

    My position on this is simple: Rape is not a valid part of the toolkit and neither is torture. Furthermore, I would count more things as torture than most people seem to. This by the way means that I don’t buy and don’t care about research that says torture does not work. Who cares if it works? And besides, it does work. The only reason it seems to not work in some studies is because the torture has already happened but is not defined as such. This line people draw between torture and non-torture is already beyond the pale.

  24. #24 Vikky
    April 18, 2009

    Phaedrus, one source of information about rape in wartime is Brownmiller’s famous book on the subject.

  25. #25 Greg Laden
    April 18, 2009

    If it is immoral for me to kidnap and torture someone, it is immoral for a government agent to do the same thing.

    First, just because something happens to be immoral to you, doesn’t make it immoral for others – including government agents. Though I agree with you about kidnapping and torture.

    To expand on this a bit, the logical phrase here is simply incorrect unless one is a pure libertarian or a pure anarchist. In most societies we actively embrace the concept that homicide is in the purview of the state, for instance.

  26. #26 Greg Laden
    April 18, 2009

    No one is above the law, and the only way to be exonerated of a crime is through a trial.

    And there is more than one way to be exonerated – presidential pardon and making deals with prosecutors are both effective, the latter being used thousands, if not hundreds of thousands of times a day in this country.

    I want to expand on this too. Almost no one in this country is ever imprisoned as a result of an actual trial. DuWayne is totally correct here: Presidential pardon is actually part of our justice system, as are plea bargains and the rest of it.

  27. #27 sailor
    April 18, 2009

    All right, So No one gets punished, no one gets tried, nothing is done, it all fades away. what is going to stop torture coming back into practice with the next republican president?
    When the law is broken, something needs to happen or you end up with a lawless society. If nothing happens, you will see torture used again.
    The US has an obligation to try people when the law is broken.
    How many people here truly believe that they are so much safer for underhand operations of the CIA. Look at your history look at Allende, Iran, the Bay of Pigs and more. No you really need law and organizations like the CIA need to obey it or there will be consequences, and they may not be pretty.

  28. #28 BruceH
    April 18, 2009

    The more I think about this issue, the more I come to the decision that everyone and anyone who was involved in torturing suspects should be tried, and convicted if guilty. A person is under no moral or legal obligation to follow any orders which break the law. Quite the opposite, such a person has a duty to disobey and report such orders. This counts for government and military personnel as well.

    I realize this is a very high standard to hold people to, and will often not be met. That does not obviate the need to aspire to it, nor the responsibility to hold those accountable who fail in their duty.

  29. #29 Greg Laden
    April 18, 2009

    All right, So No one gets punished, no one gets tried, nothing is done, it all fades away. what is going to stop torture coming back into practice with the next republican president?

    That would be bad, and I don’t think that is what should happen.

  30. #30 0scar Zoalaster
    April 18, 2009

    [snip] You are ignoring the fact that these were not considered illegal acts.

    Epic Fail. Creationist Flat-Earther level fail.

    Quoting from Glen Greenwald’s blog:
    “The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compel all signatories — in language as clear as can be devised — to “submit the case to its competent authorities for the purpose of prosecution” (Art. 7(1)). And the treaty explicitly bars the standard excuses that America’s political class is currently offering for refusing to investigate and prosecute: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture” and “an order from a superior officer or a public authority may not be invoked as a justification of torture” (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention’s obligations.”
    http://www.salon.com/opinion/greenwald/2009/02/16/treaties/index.html

    The text of the treaty is available at http://www.hrweb.org/legal/cat.html Read it for yourself. The acts that you are so intent to absolve people of were illegal under U.S. law from the moment that the Convention Against Torture (which was signed by Ronald Reagan) was ratified by the U.S. Senate in 1994. Treaties are ‘supreme law of the land’, essentially equivalent to a part of the Consitution.

    Oscar: “so ‘no harm, no foul’?” .. no, there was a great deal of harm and there was something much more than a foul. This was an atrocity. You would need to read and think beyond your nose to get the point here, possibly.

    That there was a great deal of harm and that it was extremely foul was precisely my point. But, since you _approve_ of not prosecuting people whom every indication is have done some truly horrible things….I get the impression that _you_ do not think that anything wrong was going on.

    I agree that torture is wrong and that it is never acceptable. I’m not sure why you would think I think otherwise.

    Because you support not prosecuting torturers and those who ordered the torturing. From that position it appears that either you approve of torture, or that you think of the people who were tortured as ‘not really people’.

    What is at issue here is how does a guy like Obama manage the transition from the horrific irresponsible evil government set up by Bush and Cheney in a thoughtful effective manner and not have it all fall apart along the way.

    If you had posted on that topic I would be interested in discussing that topic. Instead you said: “The only reason to not pardon them is to use them to get to higher-ups who should actually be prosecuted. These on the ground operatives are the ones who, like it or not, need to do what they are told even when they may well “know” it is wrong. As long as they were not acting as rogue agents, they should be immune,”

    And failing to prosecute these crimes will only serve to demonstrate that the law does not apply to ‘our rulers’, and once that happens they will indeed be ‘our rulers’ because democracy will have died in America. No one, not even people that Greg Laden approves of, is above the law. No one.

    I suggest that there is no reason to pardon them, and that the only time that – due to very extenuating circumstances – a pardon could legally be issued is _after_ a trial. Operatives of the United States government should obey the law, even when they are told to break it – there is no ‘Legitimate Order’ that enables anyone to ever, under any circumstances, commit a crime without exposing themselves to prosecution.

    If I go commit a crime because ‘Fred’ told me to I am still liable for the penalties – and it is exactly the same with U.S. government employees, no matter if they are hourly, salaried, or elected. Every U.S. employee takes an oath to uphold the Constitution and these people violated their oaths.

  31. #31 Phaedrus
    April 18, 2009

    Greg,
    Phaedrus: we both need to pick our contexts and stick with it.

    I wasn’t setting context, I was trying to determine yours. You’ve consistently said that torture works – I want to know what you base that on.

    And besides, it does work. The only reason it seems to not work in some studies is because the torture has already happened but is not defined as such. This line people draw between torture and non-torture is already beyond the pale

    All I have is what I’ve heard an read, and I haven’t heard a field interrogator yet who is willing to vouch for torture, thought I’ve heard several say the opposite. I’m willing to be educated on this front, but not by unfounded assertions.

  32. #32 Greg Laden
    April 18, 2009

    A person is under no moral or legal obligation to follow any orders which break the law. Quite the opposite, such a person has a duty to disobey and report such orders. This counts for government and military personnel as well.

    Bruce, when you are handed a presidential order or told that there is one, or the equivalent, what law are you breaking when you fail to follow the ensuing orders, especially if you are operating in a culture where the acts you are carrying out are considered life saving and essential? Prosecute the bosses that made this happen.

  33. #33 Phaedrus
    April 18, 2009

    This line people draw between torture and non-torture is already beyond the pale.

    I don’t know how to take this. I often got in trouble in high school and was asked questions down at the principal’s office. I don’t consider anything they did there torture, though I was uncomfortable both physically and mentally.

    On the other hand, I think we can all agree that waterboarding is torture. Are you saying that you see no difference?

    I believe I’m misinterpreting you, and I apologize, but I am confused by your words here.

  34. #34 Phaedrus
    April 18, 2009

    Why is it an either/or situation for prosecution with respect to high level low level guys?

    Why wouldn’t you advocate prosecuting everyone involved, instead of advocating that CIA agents are let go?

  35. #35 Greg Laden
    April 18, 2009

    0scar Zoalaster: I don’t quite know why you are trying to convince me that torture is wrong or illegal.

    Phaed: You are staring to get annoying. Do not tempt fate.

    “You’ve consistently said that torture works – I want to know what you base that on.” Have I? Consistently? To be consistent I’d have to have said it more than once, and I’ve said it exactly once, and only in a special context that clearly went whoosh right over your head.

    I don’t draw a line between torture and non-torture like the more simple minded do (yourself included I suspect). Think of it all as unwante coersion. At what point does someone give up information they don’t want to give up? Never? When they are not being asked to and don’t have to?

    No, neither of these conditions apply. When a person does not need to give up the information they’ve been trained to or have some internal strong motivation not to, then the don’t But at some point they do, often. Is this because someone has talked them into changing their politics? No. It is becase they have been coerced.

    My argument is this: The “torture/non torture” line is (as I’ve said) behyond the pale. This artificial distinction between not torturing and torturing is way out there beyond where coercion has already started. Anguish has already come into play. Some threat or another is already in operation and being effective.

    The fact that the torture/non-torture line is drawn beyond any reasonable level (which is really bothersome if you care to think about it) and that people when arrested do in fact give up information tells me that there is a huge disconnect. That is my point.

    Trust me, Phaedrus, you are so far off the mark here, you are arguing into thin air. Take it down a notch, buddy.

  36. #36 sailor
    April 18, 2009

    Very nice post Oscar Zoalaster.
    You clearly point the legal obligations of the USA. Unfortunately the USA is powerful enough to thumb its nose at the world whenever it feels like it. The world is not better off for it, and I do not really think it helps the USA either.

  37. #37 Greg Laden
    April 18, 2009

    Why wouldn’t you advocate prosecuting everyone involved, instead of advocating that CIA agents are let go?

    If I was president, that is what I would insist on.

    Notice that I didn’t get elected president, though, did I.

  38. #38 peter
    April 18, 2009

    “You are ignoring the fact that these were not considered illegal acts. Which is the whole point. There was a top down justification of the legality of the interrogation techniques, which were being carried out in what was an illegal prison that was justified form the top down as being legal, and done on people’s whose rights were stripped from them in a manner that was justified form the top down as legal.”

    Greg, this is exactly my point: The officers at the Nazi extermination Camps, the soldiers who crammed the jews into the railway cars and refused them food and water, the mengeles who conducted experiments – were all justified and indemnified by laws that the National Socialist government had created or by rules that were deemed to have the status of a law.

    This still leaves those who conducted those deeds responsible for their own acts, no matter how much a “law” justified those acts. That is why during the “Nazi crime trials” after the war those guys, who all cited the argument of “following orders”, were still held responsible.

    I really have a hard time grasping why you are so eager to not hold those following legal but ethically indefensible orders not responsible for their actions?

    The argument of “following orders” exonerating anyone from any misdeed – means opening doors for individual irresponsibility, opening the door to moral cowardess.
    I do not know how I would react being put in a situation wher I had to choose between following orders or “just” loosing my livelyhood, but not life, but if I should be ever found wanting myself, I completely agree to be held to account for such failure.

    Even as a soldier in the German army after the war – I spent two years there – one of the concepts of the “innere fuehrung” was to carefully consider orders in the context of the Geneva convention or just simple ethics when it comes to dealing with civilians or POW’s.

    You are of course right, and by Nazi laws – actually even by the law Bush created after 9/11 – anybody who acts in a violent manner against a legitimate government (do not forget that the Nazi government had been duly elected with a 32% majority of a splintered electoral menu) is a terrorist, so even under present american law the would be assassins of July 20th had committed morally justifiable but legally indefensible violence.

    But what does this have to do with the argument that no one following orders – or at least orders by a “legitimate government, however you want to define such – should be held responsible?
    The Walkuere participants created their own orders, not always just from a sense of civic duty, and were held responsible.
    Stauffenberg, Rommel, Stuelpnagel and 200 others paid dearly for their attempt.

  39. #39 DuWayne
    April 18, 2009

    Because you support not prosecuting torturers and those who ordered the torturing.

    For fucks sake Oscar, can you actually read? The whole point is prosecuting those who ordered the fucking torture, while providing immunity to the people who were following those orders.

    Operatives of the United States government should obey the law, even when they are told to break it – there is no ‘Legitimate Order’ that enables anyone to ever, under any circumstances, commit a crime without exposing themselves to prosecution.

    And I imagine that most often, they just get away with it. When they don’t, they may well go to trial, trials that we will never know about, because public trials under the circumstances could reasonably be assumed to endanger national security and possibly endanger the operative involved.

    I even support the notion of trials (of a sort) to provide independent oversight and ensure to the best of our ability, that no illegal actions were taken outside of necessity. Oversight is critically important and all too lax in the context of intelligence operatives.

    I would suggest that you, sailor and Phaedrus go back and actually read Greg’s posts. Read carefully and pay attention to the fine distinctions – and the less than fine ones. You are missing a lot of what Greg has actually said and this arguing against things that Greg hasn’t actually said and things he flat out contradicts.

    This is a discussion that is inherently rife with very fine distinctions that can drastically alter what is actually being said and what is being perceived.

  40. #40 Greg Laden
    April 18, 2009

    Peter: What you are not getting here is this: I am not suggesting for a second that anyone who carries out unethical or illegal (either or) acts SHOULD not be held responsible for those acts, ultimately. But I am suggesting that something effective needs to be done. What is happening here is something very much like what usually happens, but at a different scale. The little guys always walk so the case can be made against the big guys. That’s how the big guys actually have it set up.

    Now, sit back, take a deep breath, and read the history of US presidential administrations since Truman. Also, read about how organized crime organizations have been shut down in the more successful attempts at that job. And, in fact, look what actually happened, not what you imagine happened, in post Nazi Germany. Then come back and explain how to make your idealized world would happen in any of those historical contexts (because it didn’t) and how it is supposed to suddenly, magically happen in the present situation.

  41. #41 Phaedrus
    April 19, 2009

    Well Greg, I have no wish to “tempt fate” or to annoy you. I’m new to your blog and I liked some of your other posts, but I had a hard time understanding your stance on this one.

    I’ve gone back and re-read the comment thread. I see that you state early on that you wouldn’t mind seeing these guys prosecuted if it lead to higher level prosecutions, I missed that the first time.

    I’ve had to read your definition of torture several times, perhaps because of my simple mind. It seems you share something in common with Bush and Humpty Dumpty, the concept that a word means just what you choose it to mean, neither more nor less. You are entitled to declare that, to you, torture is any method that gets people to say things they’d rather not, but the word means something different to me, to Webster, to Wikipedia, to the UN, heck to everyone I’ve ever met. I think I can be excused for misunderstanding that you were using your own Landen’s Dictionary version of torture. I won’t argue that definition of torture here, you make some interesting points and it sounds like you’ve thought about it a bit, so you’ve given me something to think about in turn.

    Now, early on you did say that torture was considered a “valid” method of intelligence gathering, and then you said later that “it does works”, so it seemed to me like you were being consistent. Claiming that an intelligence method was valid sort of implies you think it works.

    All of this seems to be a clever dodge, though, to keep from answering how you’ve come to know that torture works. If the reason for this is personal, I’ll quit asking and respect your privacy. Otherwise, you write for science blogs, fer christ’s sake, so my asking for a little support for you argument should be as easily understood as your readily supplying it. Perhaps your attempt to redefine torture leads you not to care about studies that say it doesn’t work, or to not care yourself if it does work, or to say other things that have truly confused my simple mind. As DuWayne points out, you are “making some very fine distinctions that can drastically alter what is actually said” – and us simple minded, plain spoken folk just can’t understand your “new-aunss”.

  42. #42 Greg Laden
    April 19, 2009

    My earlier comment about it’s validity was too vague, sorry. I simply meant that there are people who consider torture to be acceptable and useful. I do not happen to agree with them. Despite your assertions that everyone you know thinks that torture is bad, and your implication that you’ve spoken to actual intelligence operatives (oh, and you haven’t. I have ways of checking on that) there are a lot of people who think it works and is worth it. Were that not true, this would not be a debate.

    I’ll add this: If the argument is made that torture simply does not work and therefore should not be used, then we are in trouble when someone either comes up with a method of torture that does work or, easier and more likely, simply convinces a bunch of peole who have some control over these things that they have done so. You can’t base the argument on it not working. That is not sufficient nor is it a valid moral or ethical argument. Nor can we accept these over the top definitions of torture that you so clearly understand perfectly and that eeryone from you to wikipedia seem to agree on perfectly, such as the person has to think they are going to die, etc. etc. I’m not willing to let the present times, where only the most extreme things are thought of as off kilter and the moderately insane is thought of as perfectly fine, define the limits of what we should be doing to each other. That may be good enough for Wikipedia, but not for me.

  43. #43 Jadehawk
    April 19, 2009

    This is not reasonable argument for no more intelligence gathering or accepting that occasionally it is not only acceptable, but necessary to break the law

    well, that’s just stupid. there are RARE, exceptional situations for this, like when there’s an unjust law and you’re working to change it. But giving an organization with the track-record of the CIA the right to break national and international laws in good standing, which everybody else has to obey… that’s just stupid. And imperialist, to boot. Or do you think Saddam would have had the right to assassinate Bush & Cheney to protect himself?

    And I didn’t say anything about intelligence gathering (as long as it is legal). I’m condemning the CIA because of its actions and methods, and think that it should be abolished and replaced with an organization that functions without breaking laws, and is more sensitive to basic human rights.

  44. #44 Oscar Zoalaster
    April 19, 2009

    For fucks sake Oscar, can you actually read?

    Obviously I can. And since I am aware of the legal obligation of this country under Convention Against Torture [http://www.hrweb.org/legal/cat.html Read it.] I apparently exercise that skill more than you do.

    The whole point is prosecuting those who ordered the fucking torture, while providing immunity to the people who were following those orders.

    And that is absolutely wrong. _Both_ the people who did the torture and the people who ordered or knowingly facilitated the torture are _both_ morally and legally culpable. There is no way to arbitrarily exonerate (de facto or de jure) anyone who either tortures or orders torture. The United States signed and ratified a treaty to that effect. That treaty is binding. If Obama’s so-called ‘pre-pardon’ is treated as anything more than a meaningless political utterance he is potentially guilty of the obstruction of justice.

    Torture is not an issue to play political games with. The Convention Against Torture is very clear. There is no excuse for torture, and there is no legitimate reason for a nation to not prosecute those plausibly accused of torturing or causing torture. And, if a nation refuses to prosecute those plausibly accused other signatory nations are obligated to do so…..

    I know that the U.S. has done a lot of nasty things over the years, but at least most of what went on since World War II was by proxies with unfortunate but plausible misunderstandings, local standards, and other weasel words. But with Bush not only were U.S. personnel openly torturing people, but the chain of the command clearly ran extremely close to the Oval Office. They are all culpable. The elected officials and their minions should have known and acted better, and the government personnel who carried out their commands/wishes/hints should have known and acted better too.

    When this is done it needs to be very very clear that unlawful and immoral orders are to be neither given or carried out – and that no one is above the law, no matter what mitigating circumstances someone may perceive, and no matter how otherwise popular the crimes may be. If society, a political party, or any other organization, wants to absolve someone of a crime they can hold a trial – one with a _public_ record – and decide what to do after guilt or innocence is established. Only after guilt or innocence (and what degree or sort of guilt or innocence) is established is a pardon, or even anything like a pardon, at all appropriate – or legal.

  45. #45 Azkyroth
    April 19, 2009

    You know, until we explicitly separate “right” in the sense of first-principles moral imperative from “right” in the sense of “most likely to produce the desirable result,” this entire thread is just going to be people talking past each other.

  46. #46 Greg Laden
    April 19, 2009

    Azkyroth: ironically, that is probably true of both the torture itself (Where I say “right does not make right”) and the politics (where I say, pragmatically, “right can make right”).

    If you know what I mean.

    Because in fact I don’t thine many of here are actually disagreeing. But I am thinking of appointing DuWayne as official something or another.

  47. #47 Stephanie Z
    April 19, 2009

    Azkyroth deserves a position like that too. Sb’s official whatever in charge of going around to various comment threads and explaining to people what they’re actually arguing about. Unfortunately, I think the job title might be Cassandra.

  48. #48 Phaedrus
    April 19, 2009

    We do seem to talking past each other, but I don’t think it is because of the reasons Azkyroth states. Greg, you seem to misread my statements easily, or ignore them when it suits.

    I didn’t say that everyone I know thinks torture is “bad”, for that, in fact, isn’t true. But we all have a similar understanding for what torture is – what the word “torture” means. It’s not exact, and if you were to dig down I’m sure one would find disagreements, but they would be minor when compared to the gap between general understanding of the word and your definition. That was my point.

    I didn’t mean to imply that I actually know anyone who has been involved with torture, and I don’t think a reasonable reading of the thread would show otherwise. And, “I have ways of checking on that”, what the Hell?

    there are a lot of people who think it works and is worth it

    Ok, you have stated, “consistently”, I think, that you agree with these people (at least the works part, not that torture is worth it). Could you, at long last, explain why you find that credible, provide a any source, any one at all?

    I understand the rest of your argument. It doesn’t matter if it works, it is morally wrong and degrades those who practice it. I agree with that. And you could say it doesn’t matter if it works (and you have), torture is still wrong. And you could stop there. But you haven’t, you’ve gone on to say that torture DOES work. And that’s what I’m trying to get at – how do you know that?

    At this point I’m ready to give up (cue general sigh of relief from everyone still on this thread, I’m sure). If your reasoning on this point is similar to the brief glimpse I’ve gotten during our exchanges, then I don’t really feel the need to pursue this. You seemed pretty reasonable (and very entertaining) in your other posts, though, so I’m disappointed.

  49. #49 Greg Laden
    April 19, 2009

    there are a lot of people who think it works and is worth it

    Ok, you have stated, “consistently”, I think, that you agree with these people

    I do not agree with those people. Those people are ignorant sadists.

  50. #50 Phaedrus
    April 19, 2009

    Ok, Greg, I’m out of here. You consistently, intentionally misstate my positions and refuse to engage with my questions. It’s your sandbox, I’ll leave.

    For the record – I have never once stated support for torture, said that it works, or advocated for the immunity of people that practice it. You have said two of these three (one qualified), but have refused to support you position when asked, repeatedly, choosing instead to throw stones.

    Sad.

  51. #51 DuWayne
    April 19, 2009

    Oscar -

    Obviously I can.

    Then why do you continue to make the claim that Greg said we should give everyone a pass on the torture? Because the post this thread is based on and several of his comments on this thread have clearly stated that he wants to see the folks who gave the orders prosecuted and would be willing to see the operatives who actually engaged in the torture get a pass, to make that happen. If you can read as well as you claim, then you are simply lying. Given my distaste for lying, I will assume that your zeal has blinded you to what people are actually saying.

    And since I am aware of the legal obligation of this country under Convention Against Torture [http://www.hrweb.org/legal/cat.html Read it.] I apparently exercise that skill more than you do.

    Not in the least. What you are failing to grasp, is that this whole issue is very solidly in the laps of administration officials, especially the lawyers, who claimed that one, the Geneva convention simply don’t apply and two, that the specific acts of torture employed – don’t legally qualify as torture.

    I have been arguing that the intelligence operatives who engaged in torture must be viewed with a different lens than we would view, for example, soldiers or policemen. But lets explore the conditions under which they were operating and the claims of those giving the orders.

    They were told that the Geneva convention didn’t apply, because we were not dealing with conventional, interstate warfare. This alone doesn’t make torture legal, it merely starts us down the path – because it allows us to redefine torture. And then they are told that really, the tactics that were laid out for them do not legally constitute torture. At least not outside the confines of the Geneva convention.

    And that is absolutely wrong.

    Absolutes are such a frightening thing to me. To be perfectly honest, people like you scare the living daylights out of me.

    Can you not comprehend that the absolutes you so blithely support are no different than the absolutes that created this mess? The absolute belief that 9/11 meant we must do everything deemed necessary to fight the scourge of terrorism and would excuse anything we did, is the only reason we are having this discussion right now.

    If society, a political party, or any other organization, wants to absolve someone of a crime they can hold a trial – one with a _public_ record – and decide what to do after guilt or innocence is established.

    This is not only another example of your dangerous tendency for absolutes, it is also infantile naivety. I’m sorry Oscar, but in the context of intelligence gathering, there are a great many situations where the need for our enemies not to know something, outweighs by far, our right to know those things. Sometimes it’s even as simple as the right of others who would be put in danger, if our enemies knew something, that outweighs our right to know.

    And outside the context of intelligence gathering – because I think you fail to grasp that your absolutes have implications outside the scope of the context of this discussion – there are many reasons for some trials to be off record, or have significant portions of the public record redacted. In some cases it’s because the rights of the victims outweigh our right to know about it. And in other cases, it’s because the dissemination of a public record would endanger the perpetrator, who is witness to other crimes being investigated.

    Finally, for better or worse, a very small percentage of crimes ever go to trial, public or otherwise. While this has been a tool of egregious abuses, the reasoning behind it is sound. Quite often it is far more important to capture other, more dangerous criminals, than it is to put the one on hand through trial and sentencing. I would go as far as to say that this is a critical tool in our crime fighting arsenal – no matter the abuses that have spun off from the concept.

    There may be little point in having written all of this – at least as an attempt to sway your opinion Oscar. As a dangerous absolutist, it is unlikely that any amount of reason will sway you. But it is cathartic and may well sway those who have sympathized with you, but who are not extremists.

  52. #52 Pteryxx
    April 19, 2009

    “Torture is always wrong.”

    “So what are you going to do about it?”

    The moral absolutist says, Prosecute ‘em all, from lowest to highest. Make a public statement, wipe the slate clean. But is that reasonable, or practical, or just a fantasy to assuage guilt and Right the Wrongs? Does it mean sacrificing the broad effectiveness of a national security program for decades to come? Or making scapegoats of the grunts while wasting potential witnesses who could prevent the higher-ups from making their legal escapes? Does it mean breaking people on the rack of public opinion, people who could still be useful intelligence officers and were caught in a Milgram-type situation? Or risking a backlash in a divided and hate-filled country?

    Conversely, does pardoning them damage the government’s image, and further damage the country’s standing among the nations of the world?

    The moral dimension isn’t the only one that exists, and it certainly isn’t the only one that counts. It is valid for Greg Laden to say that torture is always wrong, and his opinion that certain torturers should not be pursued does not invalidate the previous statement. He is merely claiming that practical dangers – the “greater good” if you will – outweigh the moral need to punish these people.

    I don’t necessarily agree with him. Frankly I don’t think this situation has a right answer. I hope I’ve helped clarify his position, at least.

    “Fiat justitia et ruant coeli: Let there be justice, though the heavens fall.”

  53. #53 Greg Laden
    April 19, 2009

    Phaedrus: What stone did I throw at you other than to pay attention to what I’m saying before you told me I was wrong in nine different ways? Clearly, you are anti torture, that has never been a question. Jeesh. Bye.

  54. #54 oscar zoalaster
    April 19, 2009

    >” Oscar -
    >> Obviously I can.
    > Then why do you continue to make the claim that Greg said we
    > should give everyone a pass on the torture?

    I have not made that claim. My objection, and I have been clear about this, is to giving _anyone_ ‘a pass on torture’. Please read more carefully before you accuse me of miscomprehension or misstatement.

    > Because the post this thread is based on and several of
    > his comments on this thread have clearly stated that he
    > wants to see the folks who gave the orders prosecuted
    > and would be willing to see the operatives who actually
    > engaged in the torture get a pass, to make that happen.

    Uh, no. His statement was:

    I do not disagree with Obama’s decision to pre-pardon CIA agents who tortured people at Gitmo and elsewhere. The only reason to not pardon them is to use them to get to higher-ups who should actually be prosecuted. These on the ground operatives are the ones who, like it or not, need to do what they are told even when they may well “know” it is wrong. As long as they were not acting as rogue agents, they should be immune, and they should certainly not take the fall for what Bush, Cheney and their cronies did.

    His first statement is that he does not disagree with what he describes as ‘Obama’s pre-pardon’. There is no caveat. Then he says that the only reason to not pardon the torturers is to use them to get to higher-ups. That sentence clearly indicates that he is perfectly happy letting tortures go with no legal consequences, the only thing that would cause him to do otherwise is if he would be able to use them to get to their bosses. But, Obama has not indicated that he intends to do that…and Laden – in the first sentence of his post stated his approval for Obama’s statement that he was willing to not prosecute low-level torturers.

    Then in the next two sentences Laden endorses the idea that obeying order is necessary even when the orders are wrong; and that underling should always be ‘safe’ as long as they were ‘just following orders’. Those sentences serve to reinforce the impression from the previous sentences that torture itself, and people who torture, do not seriously bother him – only those people who order torture are somehow guilty of something. The torturer is the enemy of all humanity, and those who order torture would have no power if people would refuse to obey those orders.

    > If you can read as well as you claim, then you are
    > simply lying. Given my distaste for lying, I will assume
    > that your zeal has blinded you to what people are
    > actually saying.

    See above. Every single response I have made is based on what Laden _actually wrote_. If he wants to repudiate his words he can, but until he does I will assume that he actually meant what he wrote. (And expressing a distaste for lying doesn’t impress me much since you are happy to let torturers go with no legal repercussion.)

    >> “And since I am aware of the legal obligation of this
    >> country under Convention Against Torture
    >> [http://www.hrweb.org/legal/cat.html Read it.]
    >> I apparently exercise that skill more than you do.
    > Not in the least. What you are failing to grasp, is
    > that this whole issue is very solidly in the laps of
    > administration officials, especially the lawyers,
    > who claimed that one, the Geneva convention simply don’t
    > apply and two, that the specific acts of torture
    > employed – don’t legally qualify as torture.

    Utter and complete nonsense. Torture does not cease to be torture just because some lawyers claim that it does. And, again, you are ignoring the U.S. obligation under the Convention Against Torture.

    > I have been arguing that the intelligence operatives
    > who engaged in torture must be viewed with a different
    > lens than we would view, for example, soldiers or
    > policemen. But lets explore the conditions under which
    > they were operating and the claims of those giving the
    > orders.

    Again, torture does not cease to be torture by virtue of specific conditions or claims. The Convention Against Torture is very clear about that.

    > They were told that the Geneva convention didn’t
    > apply, because we were not dealing with conventional,
    > interstate warfare. This alone doesn’t make torture legal,
    > it merely starts us down the path – because it allows us
    > to redefine torture. And then they are told that really,
    > the tactics that were laid out for them do not legally
    > constitute torture. At least not outside the confines
    > of the Geneva convention.

    Torture is wrong, no matter whether it is used on ‘non-state actors’ or any other group. And being told that something is legal does not make it legal.

    >> And that is absolutely wrong.
    >
    Absolutes are such a frightening thing to me. To be
    > perfectly honest, people like you scare the living
    > daylights out of me.

    The fact that I unequivocally oppose and condemn torture scares you? The only way that I can imagine that my opposition to torture would scare you would be if you personally believe that your survival will eventually require you to torture someone….which is a very dismal outlook on life….and one that I would not feel safe near.

    > Can you not comprehend that the absolutes you so
    > blithely support are no different than the absolutes
    > that created this mess?

    WTF?????? In what way is opposing torture, based in a belief that everyone should be treated with dignity, respect, and compassion, like the kind of destructive idiocy that got us into this mess?

    > The absolute belief that 9/11 meant we must do everything
    > deemed necessary to fight the scourge of terrorism and
    > would excuse anything we did, is the only reason we are
    > having this discussion right now.

    A problem that could have been avoided if both sides – Bin Laden and Bush – had been unwilling to cause others pain in order to further their own goals. It would have still helped a great deal if Bush had been unwilling to invade countries that had nothing to do with 9/11 and been unwilling to order torture. I simply do not see how an opposition to torture is even remotely peripherally similar to the kind of destructive fanaticism that brought about 9/11 and its aftermath.

    >> If society, a political party, or any other organization,
    >> wants to absolve someone of a crime they can hold a trial
    >> – one with a _public_ record – and decide what to do
    >> after guilt or innocence is established.
    > This is not only another example of your dangerous
    > tendency for absolutes, it is also infantile naivety.

    !!!! Now you are against trials too? Would you prefer hitmen and vendettas? Because that is the eventual alternative to trials and a functioning Justice System.

    > I’m sorry Oscar, but in the context of intelligence
    > gathering, there are a great many situations where the
    > need for our enemies not to know something, outweighs
    > by far, our right to know those things. Sometimes
    > it’s even as simple as the right of others who would
    > be put in danger, if our enemies knew something, that
    > outweighs our right to know.

    Complete and utter nonsense. Governments have no business doing anything that cannot stand the light of day. The fact that governments frequently do things that the powerful and those involved would prefer not see the light of day (or at least not soon) does not justify the activity. Indeed, only a commitment to exposing those things that lurk in the dark is what keeps society from degenerating into vendettas and ‘personal justice’. The more government secrecy there is the more government abuse there is; the connection is so reliable that endorsing government secrecy is tantamount to endorsing government abuses. Like alcohol government secrecy can be useful in moderation, but only in moderation.

    > And outside the context of intelligence gathering -
    > because I think you fail to grasp that your absolutes
    > have implications outside the scope of the context
    > of this discussion – there are many reasons for some
    > trials to be off record, or have significant portions
    > of the public record redacted. In some cases it’s
    > because the rights of the victims outweigh our right
    > to know about it. And in other cases, it’s because
    > the dissemination of a public record would endanger
    > the perpetrator, who is witness to other crimes
    > being investigated.

    Entirely solvable, simply release the records 20, 30, 40, 50, or even 72, years later. My preference of course is for the shorter delays.

    > Finally, for better or worse, a very small percentage
    > of crimes ever go to trial, public or otherwise. While
    > this has been a tool of egregious abuses, the reasoning
    > behind it is sound. Quite often it is far more important
    > to capture other, more dangerous criminals, than it is
    > to put the one on hand through trial and sentencing. I
    > would go as far as to say that this is a critical tool
    > in our crime fighting arsenal – no matter the abuses
    > that have spun off from the concept.

    True enough, but that was not what Laden wrote. He wrote that he was simply willing to let people off the hook, and that he would only ‘hook them’ if it meant that ‘higher-ups’ would be implicated – but absent that goal, the one that you used as an example of why avoiding prosecution is ‘good’, Laden approves of letting the torturers go, with no legal repercussions for them. Telling torturers that they will face no legal repercussions for their crimes is not an example of deferring prosecution in order to achieve a higher goal.

    > There may be little point in having written all of this
    > – at least as an attempt to sway your opinion Oscar. As a
    > dangerous absolutist, it is unlikely that any amount of
    > reason will sway you. But it is cathartic and may well
    > sway those who have sympathized with you, but who are
    > not extremists.

    Because I am opposed to torture and support the rule of law, with everyone equal before the law, I am a ‘dangerous absolutist and extremist’? You have some very strange ideas, and I hope that I am never within a hundred miles of you, it seems that you neither disapprove of torture or support the rule of law, and those attitudes are not safe for those around you.

    Maybe if you, like me, still bore the scars of a torturers ‘artwork’ you would understand that the torturer is the enemy of all humanity. Torture is horrible; there are no circumstances in which it is acceptable behavior. That a good person might be tempted to torture under extreme circumstances does not suggest that there are times when torture is acceptable. My torturers were completely convinced that they were doing the right thing – and told me so at length – that they were sincere did not prevent them from being wrong.

  55. #55 Greg Laden
    April 19, 2009

    Then he says that the only reason to not pardon the torturers is to use them to get to higher-ups. That sentence clearly indicates that he is perfectly happy letting tortures go with no legal consequences, the only thing that would cause him to do otherwise is if he would be able to use them to get to their bosses.

    No, not at all. My statement could have been more clear but it never occurred to me that anyone would take seriously the idea that torture is at a very basic level pardonable or OK. So there is an unstated but utterly obvious context here, that tortue = bad = wrong = don’t do it = if you do it it is wrong and illegal.

    My statement was not about that at all. It was about the political and legal strategy.

    Continuing on from there, and taking your comment line by line … let’s see….

    Oh, right, you are utterly full of shit. Too bad, I don’t think we are very far apart on the basic issue of torture. I’m suggesting that you think a bit more about what might be Obama’s strategy. I am not overwhelmed about the possibility that that may happen, though.

  56. #56 DuWayne
    April 19, 2009

    I have not made that claim.

    Bullshit Oscar, you have done so in damn near every comment you have made.

    Uh, no.

    My bad, a slight misreading of Greg on my part, that doesn’t change a godamned thing I said.

    That sentence clearly indicates that he is perfectly happy letting tortures go with no legal consequences, the only thing that would cause him to do otherwise is if he would be able to use them to get to their bosses.

    And I agree with him entirely. Nor does it change the fact that he wants to see their bosses go to prison. We’ll go back to why that’s important in a minute…

    Utter and complete nonsense. Torture does not cease to be torture just because some lawyers claim that it does. And, again, you are ignoring the U.S. obligation under the Convention Against Torture.

    Again, definitions are a fuzzy thing, when we are talking about people who are required to skirt the lines to do their job.

    And I am not ignoring anything. Because they were told that those rules don’t apply in this situation.

    Torture is wrong, no matter whether it is used on ‘non-state actors’ or any other group.

    And I fucking agree with you on that. Please stop implying that I am trying to justify fucking torture.

    And being told that something is legal does not make it legal.

    So you expect intelligence operatives to argue law with the executive branch lawyers? I would like to think that most of the people involved did question and I would tend to assume that they were repeatedly assured that what they had been ordered to do was legal and necessary.

    The fact that I unequivocally oppose and condemn torture scares you?

    No, the fact that you have couched far more than that belief in absolute terms scares the hell out of me. Absolutism is a very scary thing.

    WTF?????? In what way is opposing torture, based in a belief that everyone should be treated with dignity, respect, and compassion, like the kind of destructive idiocy that got us into this mess?

    Again, you are couching more than your objections to torture in absolute terms here. You are also absolute in your belief that everything in the justice system must go to trial, that all of it must be public, that any illegal activity, even that which protects us, should be prosecuted publicly.

    The same absolutism you are stating here is the absolutism that led our government to attempt to legitimize and demand our intelligence operatives to torture. It is the same absolutism that led Bin Laden to plan the attacks of 9/11. It is the same absolutism that causes a great deal of death and destruction.

    A problem that could have been avoided if both sides – Bin Laden and Bush – had been unwilling to cause others pain in order to further their own goals.

    I don’t disagree with you, but we don’t live in the warm fuzzy, care-bear fucking world where that actually happened.

    !!!! Now you are against trials too?

    Did I say that? Did I even fucking imply it?

    No.

    I merely mentioned the radical notion that trials aren’t the only criminal justice tool in the box.

    Complete and utter nonsense. Governments have no business doing anything that cannot stand the light of day.

    Again, we don’t live in a warm and fuzzy, fucking care-bear world. We live in a world that is populated by many people who would like nothing more than to kill you and me. Some of them would even like to torture us first, something you apparently and quite unfortunately have first hand experience with. Because those people are out there, we need people to prevent that from happening – quite often in ways that require those folks not know our plans and what we know.

    This means secrets are an unfortunate necessity that also leaves openings for abuse of those authorities. But until our world is a fucking care-bear picnic, we need folks who do things that are secret. Folks who also do things that skirt the line between right and wrong, legal and illegal. Folks who are willing and able to follow orders that are morally and legally dubious. Folks who look at orders to torture, when they are assured that it is actually legal and the methods are not really torture, shove their feelings to the side and fucking do it.

    We create these men out of necessity, I am not one to decide that because they function in a manner that they were created to function, we should throw them to the wolves.

    Indeed, only a commitment to exposing those things that lurk in the dark is what keeps society from degenerating into vendettas and ‘personal justice’. The more government secrecy there is the more government abuse there is; the connection is so reliable that endorsing government secrecy is tantamount to endorsing government abuses. Like alcohol government secrecy can be useful in moderation, but only in moderation.

    I agree with you, but that is a very separate conversation.

    Entirely solvable, simply release the records 20, 30, 40, 50, or even 72, years later. My preference of course is for the shorter delays.

    Which does nothing to protect victims. And in the case of material witnesses, said delay could well just delay retaliation, whether they are the victim, or the victim is a surviving family member. In many situations, delay is suitable. In cases where the victim is being protected, sorry, but I don’t think that information is pertinent. And in cases where there is a clear expectation of danger, not important enough to outweigh the risk.

    And in the context of intelligence issues, that pretty much does come out in the long term.

    Telling torturers that they will face no legal repercussions for their crimes is not an example of deferring prosecution in order to achieve a higher goal.

    Like I said, I misread him. But that doesn’t change the point – though it put a chink in your absolutism. Because what you were just agreeing with was my response to you – not to anything to do with Greg – you and your statements of absolutes.

    Because I am opposed to torture and support the rule of law, with everyone equal before the law, I am a ‘dangerous absolutist and extremist’?

    No. Because you are unable to make exceptions or see beyond a very narrow and shortsighted framework. You seem to believe that if we just stop doing anything secret, the threats against us will evaporate and we’ll live in a brave new, care-bear fucking picnic world.

    We don’t and it ain’t coming anytime soon.

    …it seems that you neither disapprove of torture or support the rule of law, and those attitudes are not safe for those around you.

    And it would seem you can’t fucking read. I do not goddamned well approve of fucking torture, you fucking asshole!!!

    And I also happen to support the rule of law, in ways you couldn’t possibly comprehend. I have demanded to be taken to jail more than once, because I support the rule of law. I have publicly denounced and disassociated myself from people I care about, because I support the rule of law and they supported fucking terrorists. I have been responsible for some of those same people going to jail, because I support the rule of law. I had people I care about threaten to kill me if they ever saw me again, because I support the rule of law.

    Fuck you, I don’t support the rule of law.

    That a good person might be tempted to torture under extreme circumstances does not suggest that there are times when torture is acceptable.

    While the circumstances in which it would be a reasonable option are exceedingly unlikely, I cannot couch it in terms of absolutes. There exist hypothetical situations where I not only see the potential necessity, but wouldn’t hesitate to engage in it myself.

    If someone kidnapped one of my children and I was faced with a person who knew where they were – no hesitation. I would do anything to that person, that would force them to tell me. On a broader scale, the ticking timebomb scenario is another – there, because it’s not as personal, I might hesitate, but given high enough stakes, I would certainly do it.

    I am very, very sorry that you were tortured. I won’t disrespect you and pretend to understand – I most certainly can’t. My only experience with torture is second hand, knowing a couple of folks who were tortured in Vietnam. I sincerely wish there was a way that I could take that away from you and make it better – while I don’t like you, I don’t think that anyone should ever have to endure what you did.

    But the absolutes that this has driven you to are not healthy. Reality is not absolute, there isn’t room for absolutes. When we attempt to force absolutes onto reality, violence is inevitable. Whether that violence is flying airplanes into buildings, or manifest in one’s personal health (physical and/or mental) – the violence is inevitable.

  57. #57 Oscar Zoalaster
    April 19, 2009

    live in a brave new, care-bear fucking picnic world.
    We don’t and it ain’t coming anytime soon.

    The only way that we will ever get to that “brave new, care-bear fucking picnic world” is if people refuse to do things that are wrong when everyone around them is telling them that it is necessary because of the “many people who would like nothing more than to kill you and me”. An eye for an eye leaves everyone blind.

    As for your claim to support the rule of law – why did you end that passage with an assertion that you do not support the rule of law? The last clause does tend to carry the most weight with a reader….

    Reality is not absolute, there isn’t room for absolutes. When we attempt to force absolutes onto reality, violence is inevitable.

    No. My being devoted to living a life in which everyone is respected and treated considerately is not a life which leads to violence – either physical or mental. And some aspects of reality can be handled a lot better if other people know where you stand. People that know me know I will not (among other things) torture them, or anyone else. Therefore they know that they are safe around me. If I was less absolute about that….they might have cause to wonder….and take precautions….perhaps even preemptive precautions…. [The same pattern applies to nations. Act dangerous because you are concerned about all the dangerous people out there...and pretty soon other countries see you as dangerous and start examining how they can best deal with the growing threat....]

    Additionally, you have no complaint with my suggesting that you are “trying to justify fucking torture” because by offering all of the excuses, and the ‘oh-so-level-headed’ and ‘realistic’ rationalities as to why torturers should not be prosecuted, you are, in essence, doing exactly that.

    Even in circumstances when my ‘absolutest extremest’ self would say ‘let’s let this slide so that we can do X’ that ‘letting it slide’ is a tacit approval of the crime. Choosing to let an evil prosper because a greater good can be achieved is still an example of allowing an evil to prosper – and it does not matter whether I am the person who is making the ‘Devil’s Bargain’ or someone else is. No amount of good results diminishes any of the bad results, or their burden.

    As for Mr. Laden:
    My statement could have been more clear but it never occurred to me that anyone would take seriously the idea that torture is at a very basic level pardonable or OK.

    First: George Bush did, as well as a lot of other people.
    Second: Then why did you write a sentence in which you said precisely that?

    As a writer you do not have the power to cause people to read your writing the way that you want them to read it. All you can do is attempt to write clearly – which you seem to admit that you did not do in this case. If you were one of my students I would require you to correct the piece so that it does say what you intended it to say, not what it actually did say.

    As far as saying that I am “utterly full of shit” – you are the one who was unclear in your writing. If you feel compelled to assert that I am full of shit you are going to have to start being a lot more clear in your writing.

  58. #58 Jason Thibeault
    April 19, 2009

    Jesus H. Christ in a sidecar. Do you even remember the previous administration? How they circled the wagons and how they couldn’t even nail the smaller fries like Scooter Libby, much less use him to get to Cheney, despite obvious malfeasance? Do you think that anyone on top of this chain of lies is going to get nailed to the wall unless you’re willing to let a few of the smaller fries free to get to them? If the perpetrators of this great evil can be held to account for their crimes and a few of the grunts who actually did the evil deeds get off, then is it not worth it, knowing that they won’t just end up right back into power to start the torture machine right back up the next time the crazy pro-torture faction of the country siezes it back?

  59. #59 DuWayne
    April 19, 2009

    Oscar -

    Greg put it succinctly enough, you are full of shit and I have wasted enough of my time on you.

    And by the way, even though I don’t couch things in absolutes, the people around me are also aware that I wouldn’t torture them.

    Unless they fuck with my kids or try to nuke a city…

  60. #60 the real deep cover-upper
    April 20, 2009

    Greg “The little guys always walk so the case can be made against the big guys.”

    That’s not the case at all. Mi Lai? Abu Ghraib? Fallujah massacre? The little guys got fried, not the policy makers, or the covert Ops who called the shots in the field. These guys should definitely be held accountable, because when we grant systemic immunity to criminals who work in the disguise of trusted nationalists, we err on the side of criminal internationalist goals, i.e. unchecked, unprosecuted Mossad bombings, murders, and torture, or Russian FSB poisonings of dissidents.

    As much as you detest the “slippery slope” arguments, they are very very valid, and one only need to take the evidence of public opinion polls over seas as a barometer of that–we have lost so much credibility because we have become the exact thing we claimed to stand against.

    Rogue agents? That’s a great CIA/FBI urban myth.

    and : “I thought “I was only following orders” didn’t count as an excuse anymore?”

    Don’t be fooled: the Mi Lai massacre was just an side-show, illusion created to obfuscate the view of bigger more dreadful shows that were going on behind the scenes. It’s just so much easier to find one lesser ranked scapegoat and put on a show trial than it is to address systemic dysfunction.

    There is NO excuse for torture, because the definition of torture has not changed, and these CIA guys and gals made the choice to torture–which in theory goes against their training under all existing laws that were on the books when they decided to torture.

  61. #61 Soren
    April 23, 2009

    I guess you will deem me full of shit to Greg, but I cannot for life of me interpret your post in any other way than endorsing the way your president is trying to break the law.

    The law of the land is that torture is never justified, and any nation that has ratified the convention against torture MUST to the best of its ability try those suspected of involvement with torture.

    You actually state that the only reason not to pardon the torturers is top get at the bigger fish! I can only hope that some other nation succesfully kidnaps these criminals from US soil, and take them to another nation were they can get a fair trial, since the the president thinks himself above the law.

  62. #62 Greg Laden
    April 23, 2009

    MUST to the best of its ability try those suspected of involvement with torture.

    You actually state that the only reason not to pardon the torturers is top get at the bigger fish!

    Well, the events of the last several hours have obviated this question. Obama has backed off his plan, and things are moving in an entirely, and I thing good, direction. However, in reference to your comment, you do need to understand that your ideal of what happens is very far from the truth of what happens. I’m not advocating a Nuremberg defense, and I’m not advocating torture at all, but I am advocating an effective prosecution. However, what you need to understand is that effective prosecutions always have strategies, and usually, in a complex situation like this, deals are struck.

    The ratio of prosecutions for serious crimes in which deals are struck by default or by direct negotiation to those in which no deals are struck at all is something like 10,000 to 1.

  63. #63 Soren
    April 23, 2009

    What I, and I guess othe commenters take exemption to, is your statement that the only reason to NOT pardon the torturers is if it would help get to the ones giving the orders.

    I would think that the fact that they tortured prisoners would be a strong argument in favour of not pardoning them?

    I cannot see any situation, bar the ridiculous 24H kind, where it would be OK to torture another human being, but your post makes it sound as if it would be wrong to punish people for comitting atrocities?

  64. #64 Greg Laden
    April 23, 2009

    I’m only going to say this one more time. I am against torture. My definition of torture is even more inclusive of various behaviors than is yours. I would love to see all the people who did any of the torture be investigated, and if appropriate, prosecuted, and if found guilty, sentenced properly.

    I also know something about the criminal justice system that you don’t know. You are imposing an ideal that simply never happens on a very complicated system of which you are largely ignorant (it would seem). From the point of view of the investigating body, there are strategies that must be considered. This happened in Nuremberg. It should happen here.

    Do you understand that just because you think torture is wrong and that waterboarding is torture, that you have a chance of prosecuting a CIA field agent who has hundreds of pages of valid documents form higher up explaining how waterboarding a certain prisoner is totally legal if there is a physician present? That would be a very hard case to prosecute. A prosecutor may well prefer to cut a deal with that field operative.

    At first it looked to me like Obama’s strategy was a political version of this sort of thing, and I posted the opinion that this could well be a good idea precisely to get this conversation going. And that worked. And it could have been a good idea (potentially) as long as it led to Dick Cheney and George Bush and several dozen others serving time for total fucking up this country, our position in the world, starting two wars, and generally ruining everything for everybody.

    If you think this is about you parsing what I’m saying, you need to reorient to what is important. Rather than parsing what you think I said, listen instead to what I have said again and again. And refocus our attention on what is important: Cleaning up this mess the Republicans left us with.

    Jeeeshh….