America's quick recovery from its torture program suggests it wasn't a torture program in the first place.
America's quick recovery from its torture program suggests it wasn't a torture program in the first place.
The law, lawyers, and the court.
April 17 2009 11:54 AM

Over It

America's quick recovery from its torture program suggests it wasn't a torture program in the first place.

Laced like cynical poison through the four newly released Justice Department torture memos is the logic of quick healing: Eleven days of sleep deprivation is not illegal torture so long as the prisoner gets to sleep it off later. Writes then-Assistant Attorney General Jay Bybee: "The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep." In that same memo we learn that water-boarding is also not illegal torture because the simulated drowning lasts only 20 to 40 seconds, and thus, "the waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering." By the same token, "walling" (i.e., slamming someone into a wall) isn't torture either because "the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash."

In sum, argue the memos, it isn't torture if you can get over it.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

That's precisely the logic that animates President Obama's announcement Thursday accompanying the release of the memos: Move on, everybody. The pain is behind us:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence.


President Obama is of the view that because we don't torture anymore, and the memos just released have been withdrawn, and the Office of Legal Counsel that produced them is now under repair, no permanent harm has been done to the nation. In the parlance of Jay Bybee, our brief foray into illegal torture was merely "a controlled acute episode." He's over it. We must be over it, too.

Much has already been written about the sophistry of the claim that crimes buried in the past stay there. Keith Olbermann put it eloquently last night when he warned

This country has never 'moved forward with confidence' without first cleansing itself of its mistaken past. In point of fact, every effort to merely draw a line in the sand and declare the past dead has served only to keep the past alive and often to strengthen it.

The August 2002 Bybee memo and the three 2005 memos signed by Steven Bradbury are a blueprint for lawlessness. For all their dispassionate legalisms and the gutless language of giving "you" what "you" want, these memos are a how-to guide for secret government lawbreaking that will be copied by every lawyer with instructions to break the law in the future. In fact, the three Bradbury memos—which reinstated the torture regime Bradbury's predecessor, Jack Goldsmith, withdrew in 2004 for being "sloppily reasoned" and "legally flawed"—illustrate exactly what happens when there are no consequences for past government lawbreaking. The temptation to keep breaking the law is irresistible.

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