Authorizing torture with the very best of intentions.

The law, lawyers, and the court.
June 19 2008 6:03 PM

Goodwill Hunting

Authorizing torture with the very best of intentions.

Michael Mukasey. Click image to expand
Attorney General Michael Mukasey

It isn't easy to justify torture. It does, after all, violate centuries' worth of human rights norms and international and domestic law. It has famously been used by the Nazis and Stalin, Saddam Hussein and Kim Il-Sung—not really the kinds of folk we usually strive to emulate. And as professor Darius Rejali explains in his superb Torture and Democracy, it also doesn't work, at least not as a means of extracting useful information. It doesn't work because, among other things, torture leads to false confessions, because interrogators are not skilled at detecting false confessions, and because tortured prisoners are inclined to misremember and misstate what information they do know. You would think that having decided to permit torture, in the face of all these legal, moral, and practical objections, those members of the Bush administration who did so could assemble a coherent defense: We tortured because it works; we tortured because nothing else worked better. We tortured because after careful consideration, it was worth the moral price we paid. But as Congress begins the painful process of tracing the origins of the government's abusive interrogation program, its members are now confronted by the last refuge of torturers everywhere: We tortured with the very best of intentions.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Before the Senate armed services committee this week, some Bush administration officials offered up the hazy recollections, circuitous chains of command, and the passing of the buck that are the hallmarks of any such investigation. The lowlight came Tuesday with the Senate testimony of William J. Haynes II, former general counsel of the Department of Defense. If suspending the Geneva Conventions, then reverse-engineering torture-resisting techniques taught at the military's Survival, Evasion, Resistance, and Escape School for use against prisoners had worked so well in the summer of 2002, you might think a Jack Nicholson moment would have been nigh this week. You might imagine someone brave would leap to his feet before the Senate committee and holler, "Yes, I walked on the dark side, and it saved you all!" But nobody seemed willing to explain or justify the momentous decision to violate the legal ban on torture. What we heard instead was that desperate times called for desperate measures, and thus any old desperate measure would do.

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"What I remember about the summer of 2002," Haynes testified, "was a government-wide concern about the possibility of another terrorist attack as the anniversary of Sept. 11" approached. "There was a limited amount of time and a high degree of urgency," he later explained. The implication is that he'd have tried anything in that climate and that anything he'd tried would somehow have been justified. The editors at the Wall Street Journal took the same tack this week, excoriating congressional Democrats for persecuting noble men who authorized the torture of Khalid Sheikh Mohammed and "other murderers" for the good of us all. Those men acted in good faith, we are lectured. "When the threat seemed imminent after 9/11, Democrats were only too happy to keep quiet and let the Bush administration and CIA do whatever it took to prevent another attack." Desperate times. Desperate measures. Case closed.

In a speech delivered in precisely the same key last month at Boston College, Attorney General Michael Mukasey characterized Americans who seek answers on the genesis of the Bush torture policy as "hostile and unforgiving." Describing the "difficulty and novelty" of the legal questions faced by government lawyers in the supercharged aftermath of 9/11, Mukasey suggested it was enough that the questions were tough and that these government lawyers had acted "in good faith." Yet if the Senate hearings have proved anything at all this week, it's that the legal questions surrounding torture were neither tough nor novel. At Tuesday's hearing, Republican Sen. Lindsey Graham—a lawyer by training—described the legal reasoning supporting the abusive interrogation program as "bizarre." Announcing that the rationale for these torture techniques would go down in history "as some of the most irresponsible, shortsighted legal advice" ever offered, Graham was nevertheless willing to let the advisers off the hook because they acted with the country's best interests at heart.

Last I checked that's how they first paved the road to hell. ...

There was nothing hard—at least as a legal matter—about the question of whether torture is legal. This week's hearings, if they revealed nothing else, reflected near-unanimity in the belief that the conduct authorized by Donald Rumsfeld at Guantanamo was probably illegal. Here is Salon's Mark Benjamin with a useful timeline of the torture program: As early as November of 2002, "alarmed military officials from all four services raised questions about the legality and effectiveness of the techniques under consideration." The Air Force cited "serious concerns regarding the legality" of the techniques. The chief of the Army's international law division said some of the techniques "cross the line of 'humane' treatment" and "may violate the torture statute." The Navy called for further legal review. The Marine Corps wrote that the techniques "arguably violate federal law." Here is Marty Lederman explaining that Haynes either ignored all of these urgent legal naysayers, making him "the least responsible and least competent attorney in the history of the Executive Branch," or simply relied on advice he liked better from the White House's Office of Legal Counsel, insisting that the president had the constitutional power to ignore the anti-torture laws. As Philippe Sands explained yesterday in Slate, if the latter is true, the Bush administration is in trouble because"acknowledging any connection between his actions and the DoJ torture memos destroys the administration's claim that decision-making was bottom up, not top down."

If we manage to erase one hideously bad idea from our collective memories of the law in the war on terror, please, please let it be this one: Legal questions are neither "hard," nor "novel," nor "open" merely because someone at the White House didn't like the legal answer that followed them. Easy questions don't morph into tough ones just because you can find some guy willing to argue the other side. And if—as both Sands and Lederman have observed—Haynes and his colleagues shut down efforts by Jane Dalton, the legal adviser to the chairman of the Joint Chiefs of Staff, to review the techniques, then we truly are witnessing something astonishing: Haynes turned an easy legal question into a hard one by avoiding it altogether.

Which brings us back to Attorney General Mukasey, the editors at the Wall Street Journal,and Jim Haynes. Is it enough to say in hindsight that the men who knowingly gutted the American anti-torture policy were genuinely terrified of the next attack, genuinely bending to intense White House pressure, or genuinely behaving in "good faith?" I suspect they were genuinely all of the above. Are we prepared to commit ourselves to a legal regime—particularly in times of great national fear and uncertainty—in which the good faith of those who act, and act in secret, is all that matters?

Virtually everyone who has studied the question of torture agrees that the reason it doesn't work is that people subjected to extreme pressure and fear tend to make extremely bad decisions. The same can now be said of torturers. They made terrible decisions under horrible circumstances, and the mere fact that it was a time of crisis appears to be its own argument for exonerating them. When the war on terror began, it was considered unpatriotic to accuse government actors of breaking the law. Apparently long after it ends, it will be unpatriotic to suggest that there be legal consequences for doing so.

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