Is half a torture investigation better than none at all?

The law, lawyers, and the court.
Aug. 25 2009 3:49 PM

Halfway There

Is half a torture investigation better than none at all?

Guantanamo Bay, Cuba. Click image to expand.
Guantanamo Bay

The release of the CIA Inspector General report yesterday, and the accompanying news that Attorney General Eric Holder has appointed John Durham to probe nearly a dozen cases in which CIA employees crossed the line into prisoner abuse, has divided the country into two now-familiar camps. Proponents of brutal torture (and some now proudly claim to be just that) continue to assert that torture works and that, in the words of Dick Cheney, those who carried out the interrogations "deserve our gratitude" and don't deserve "to be the targets of political investigations or prosecutions." Meanwhile, opponents of torture are, in the main, incensed that Durham's mandate is to go after only a small handful of hapless bad apples without scrutinizing the lawyers and policymakers who created the legal climate in which eliciting intelligence became more important than following the law. As Glenn Greenwald wrote last night:

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Manifestly, none of this happened by accident. As the IG Report continuously notes, all of these methods were severe departures from long-standing CIA guidelines (if not practices). This all occurred because the officials at the highest levels of the U.S. Government pronounced that this was permissible, the protections of the Geneva Conventions were "quaint," obsolete and inapplicable, and the U.S. was justified in doing anything and everything in the name of fighting Terrorists.

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It is in a sense admirable that Holder is struggling to keep talking about "the law" in the face of his boss's policy decision to let sleeping torturers lie and his critics' insistence that he is singlehandedly making America less safe. To his credit, in Holder's statement announcing the appointment of a special prosecutor, he didn't bother to address the question of whether torture "worked," since that is not, nor has it ever been, a legal question.

All of this is laudable: Holder is committed to protecting the integrity of the legal rules despite huge political pressure to ignore the past and work toward a kinder, gentler future. He declines to be drawn into a sandbox fight about whether the legal rules might matter less because you can prove that violating them has some benefit. But on the other hand, Holder has fallen prey to the sort of magical legal thinking that seeps through the whole CIA report: the presumption that if there's a legal memo, it must be legal.

Holder starts from the dangerous notion that the baseline for Durham's investigation should be the legal rules (spun from bad data and random precedent) set out in the Office of Legal Counsel torture memos. To suggest, as Holder did yesterday, that he would immunize from prosecution "anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees" is to suggest that the low-level CIA operatives and contractors who acted badly on the ground are legally culpable while those who gave bad legal guidance are not. In other words, we are now protecting the good-faith torturers.

That isn't just wrong, it's outrageous. It ratifies the most toxic aspect of the whole legal war on terror: that anything becomes permissible if it's served up with a side of memo. Paper your misconduct with footnotes and justifications—even after the fact—and you can do as you please. Prosecution of those who strayed beyond the new rules, without considering the culpability of those who strayed in creating the new rules, would mean that in America, a law degree amounts to a defense. Rep Jerry Nadler, D-N.Y., put it this way earlier this month when he warned that it makes no sense to prosecute the guy who used 8 ounces of water to water-board but not the lawyer who said it was OK to water-board someone with 3 ounces of water. We must either look into both sides of the post-9/11 legal breakdown or neither. The alternative is the same kind of scapegoating that occurred after Abu Ghraib.