Is half a torture investigation better than none at all?

Is half a torture investigation better than none at all?

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, and hosts the podcast Amicus.

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.


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.


That's why it's so important that the Justice Department failed again yesterday to release another long-awaited memo from the Office of Professional Responsibility—a memo implicating the actual torture architects—including John Yoo and other Office of Legal Counsel lawyers for violating their professional ethical duties in writing the original torture memos. By disaggregating the conduct of the upper ranks from the conduct of the CIA interrogators, the Justice Department perpetuates the myth that "just following orders" is a legal defense and insults the many, many CIA personnel who resisted the new rules, declining to participate in the chamber of horrors a small clutch of superiors had constructed. Today's talk of demoralizing the CIA by investigating internal rule-breaking is silly. The IG report makes clear that the CIA was already demoralized by ill-founded claims that the rules were no longer the rules.

The American legal system isn't just about crime and punishment. It's a set of guideposts to direct us in the future and to send a message about our values to the rest of the world. This proposed Holder-Durham regime of semi-accountability—we're sorry for that whole torture thing but not sorry enough to investigate seriously how it happened in the first place—serves the dangerous dual purpose of allowing us to reinstate the Bush-era torture rationales, should they be necessary again in the future, and advising our allies and enemies that under desperate circumstances, they can plausibly do the same. Opting to be only halfway responsible means that torture is, going forward, only halfway reprehensible. Ta-Nehisi Coates says, "I really have no doubt that we could—indeed would—start torturing again, in the event of another terrorist attack." If we don't dismantle the foundations of the torture regime, he'll be right.

Attorney General Holder is smart enough to know that special prosecutors tend to uncover dirt and that even the limited mandate he has given Durham will almost immediately run into the brick wall that is the torture memos. Virtually any probe into whether a prisoner was water-boarded "properly" will have to tackle the absurd question of why America started water-boarding in the first place. Either Dunham will swallow the Holder line that anything approved by the OLC's torture memos was per se legal or his probe will lead him to ask the same questions that will eventually be answered by the OPR report—how did eliciting any information at any cost become the legal answer instead of the legal question?

It's hard to imagine who's more demoralized and embarrassed today—the CIA, the Justice Department, the president, or the Office of Legal Counsel. But transparency and accountability are embarrassing. This may not be a process anyone will feel good about, but feeling good isn't the only objective.

President Obama is embarrassed at having to call out his own employees. Eric Holder is embarrassed at having to embarrass his boss. The CIA is embarrassed that a few of its agents and contractors mindlessly followed Dick Cheney over to the dark side. And most Americans are embarrassed to read that in the darkest days after 9/11, the government threatened prisoners with power drills and the rape of their families in order to elicit bad information. It's all shameful. But somehow, America is going to have to make its peace with its flirtation with prisoner abuse. That may mean doing what we're doing: airing our dirty laundry one sweat sock at a time or appointing a commission or special prosecutor to do the job right. Or perhaps it just means joining Dick Cheney in his conviction that the laws against torture are now obsolete. Pretending we are investigating and curtailing a torture program isn't all that different from pretending we didn't torture in the first place.