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

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.

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President Obama is of the view that because we don't torture anymore, and the memos just released have been withdrawn, and the Office of Legal Counsel that produced them is now under repair, no permanent harm has been done to the nation.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.

Obama's promise to "those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution" is sufficiently ambiguous to mean many things to many people. CBS News commentator Andrew Cohen reads it to mean the Obama administration will "not just pass on prosecuting any Bush-era offenders but offer those very same offenders indemnity from prosecution or even Congressional investigation." The ACLU's Jameel Jaffer, on the other hand, is calling for a special prosecutor. Sen. Patrick Leahy, D-Vt., reiterated his call for a nonpartisan commission of inquiry.

But Sen. Russ Feingold, D-Wis., doesn't think prosecutions are precluded by Thursday's announcement. As he put it last night: "As I understand it, [Obama's] decision does not mean that anyone who engaged in activities that the Department had not approved, those who gave improper legal advice or those who authorized the program could not be prosecuted." The DoJ's Office of Professional Responsibility is in the midst of an ongoing review of the quality of the legal advice given by Bybee, Bradbury, and fellow OLC lawyer John Yoo. But it's worth noting the irony here: We can't touch these lawyers because they weren't doing the actual face-slapping. In fact, just yesterday Spain's attorney general, Candido Conde Pumpido, recommended against prosecuting the six alleged architects of the Bush torture program because the officials cited in the court complaint did not themselves physically carry out the torture. "If action is taken for the crime of mistreating prisoners of war, the complaint should target the actual authors of the crime," he announced.

Having all-but granted immunity to those who actually carried out the torture because they believed they were merely following legal advice, and with the widespread understanding among experts that it's nearly impossible to criminally prosecute lawyers who were merely offering legal advice, the Catch-22 of nonaccountability is almost complete.

But is President Obama right that America has survived its injuries, having had a while to sleep it off? Can we simply put behind us the obscene picture of violence and cruelty painted by the new OLC memos and the 43-page report by the International Committee of the Red Cross publicized last month by Mark Danner? Was the decision to brutalize our prisoners some form of temporary insanity that is, as Obama's Director of National Intelligence Dennis C. Blair put it yesterday, justifiable if looked at within the "context of these past events" and the "horror of 9/11"? Are we OK about government lawyers and medical personnel and the highest-level government officials collaborating to legalize and implement water-boarding next time the "context" and the "horrors" lead us to lose our collective minds?

What we have learned from the new memos and the ICRC report dwarfs the hoodings and humiliations that took place at Abu Ghraib. Yet when we learned of the prisoner abuse there in 2004, it wasn't just vengeful, lefty, America-hating crackpots who were horrified. We all were. What happened in the intervening five years to make feeling sick to your stomach a partisan issue?

President Obama makes forgiving and forgetting sound awfully appealing. The country is in deep economic trouble. The days and weeks after 9/11 were really, really scary. We need our intelligence officials to be able to keep us safe without having to look over their shoulders. Good people shouldn't be punished for the bad legal advice they received. Bygones. But is the short-term comfort of saying we're over it worth the long-term cost of having become torturers and then cavalierly gotten over it? Because the real risk of getting over it is the possibility that it happens all over again.

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