The Magazine


The first thing we do, let's prosecute all the lawyers.

May 18, 2009, Vol. 14, No. 33 • By TOD LINDBERG
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And this is, in its way, very instructive. One must ask: What is the crime here? People say the crime is torture, but it seems doubtful anyone will be tried and punished for the perpetration of physical acts upon the bodies and psyches of detainees: no charges of torture proper under Sec. 2340 of the U.S. Code, no charges of assault and aggravated battery or misuse of authority under color of law. And if there are charges of conspiracy to commit torture in violation of U.S. and international law, the co-conspirators who actually engaged in the activity that supposedly counts as the underlying crime will likely remain unindicted.

Which, I think, gives rise to the conclusion that the crime is not "torture" at all. Rather, the crime is reaching the legal conclusion that the interrogation techniques at issue in the "torture memos" are something other than torture and thus permissible. Reaching such a conclusion is, or should be, in this view, an illegal act.

So we are not really talking about enforcement of a prohibition on certain physical acts' being used against captives, but rather enforcement of a mandatory view among government officials that it is wrong to perform such acts. Those who are especially at risk of prosecution for this crime are those who presumably ought best to know better than to reach the wrong legal conclusion: the lawyers.

With apologies to Michel Foucault, we thus have a new system of surveillance of government lawyers, including through the public release of documents ordinarily shielded from disclosure and written in the expectation that they will remain secret. The system will threaten to punish those who deviate from accepted norms about certain matters of law. Thereby, it will instill a disciplinary structure in which government lawyers conform their opinions to the norm. No government lawyer can draft guidance in the expectation that its secrecy will be preserved. Every government lawyer will fear legal consequences for deviation. Accordingly, the lawyers will take it upon themselves to reach acceptable conclusions in the knowledge that they are being watched.

It should be necessary to prosecute only once in order to establish the robust and self-sustaining disciplinary structure described here. One could argue that it is not necessary at all, that the public opprobrium directed from the legal community writ large toward the Bush lawyers is punishment enough. But such an impulse of mercy is unlikely to overcome the urge to punish those who reached the conclusion that there are circumstances in which a state may lawfully undertake the methods described in the torture memos. Their crime is not so much that they have themselves broken the law or a provision of a treaty, but that they, agents of a state that must be bound by international law, have sought to aggressively defend a maximal interpretation of their government's room for maneuver under that law. Even more, they have sought to impose the right of their government to declare for its own benefit a lawful exception to that law.

There may be exceptional circumstances, but they are precisely not lawful. To put it another way, would the French government's detention and interrogation tactics in all instances pass muster according to the standards being applied to techniques described in the torture memos? One may be permitted one's doubts. Germany recently got a pass on condoning torture from the European Court on Human Rights, as John Rosenthal has written in Policy Review, even though the German judicial system gave a mere slap on the wrist to a policeman who used techniques harsher than any employed at Guantánamo to rough up a kidnapper he hoped would talk in time to save the life of the child-victim (the boy was found dead). One does what one has to: The point is that France and Germany agree that torture is illegal. They are in good standing on international law and its underlying norms, because they profess adherence. The hands of their government lawyers are clean, if not in all cases the hands of their interrogators.

The United States, on the other hand, has a terrible problem with the idea of an exception: that one may and perhaps must break the law in extreme circumstances. The U.S. government would rather make even a dubious argument that its conduct is lawful. The problem is that such arguments take the form of a generalization: In circumstance A, it is lawful to do X. Such generalizations invariably sound like a routinization of the exceptional circumstances, a condition of permanent exception that is always available to trump the prohibition to which X may run counter. We got into the same sort of trouble with Bush's 2002 National Security Strategy of the United States: Its response to our highly particular problem with Iraq was to articulate general principles in accord with which the United States might wage preemptive (actually preventive) war--thus creating the impression that we now had a policy of preventive war and the intention to wage many such wars.

The U.N. special rapporteur said, and he is hardly alone, that "every reasonable person would know that waterboarding, for instance, is torture." I wonder if, by this standard, at the trial of John Yoo or Jay Bybee, a defense lawyer would be permitted to make the argument that whether waterboarding is torture is something about which reasonable people differed. As officers of the court and members of the bar, perhaps the defense lawyers, as well, should face sanction if they fail to uphold a viewpoint on which "every reasonable person" would agree. Perhaps the only real defense they would be able to muster for their clients is insanity--the madness we detect when persons unreasonably disagree with what "every reasonable person would know."

I think Yoo and Bybee made mistakes, to which Addington contributed. They had an overweening view of the scope of executive power in general and the president's commander-in-chief power in particular. The Bush administration's original sin, as I wrote in these pages in February 2002, was its failure to get the initial terms of detainee treatment at Guantánamo straight and to make public their reasoning. That, in itself, would have cost nothing and might have prevented much error and trouble.

In the case of Khalid Sheikh Mohammed and Abu Zubaydah, the stakes were higher. The stress of the times was extreme. Lately, in defense of the tactics of that time, or perhaps in acknowledgment that such techniques are no longer warranted, former Bush administration officials have been arguing that we knew helplessly little about al Qaeda and needed to grasp as quickly as possible the nature of the threat we faced. This is no longer the case. Our knowledge is much improved--perhaps in part thanks to the information obtained through harsh interrogation techniques, whether or not such information might have been obtained through other, milder, means.

The circumstances, in short, were exceptional. We did what we did, and the whole world now knows it. The object of disapproval, for those who disapprove, is less what we did--otherwise the call for heads would include those who actually committed the acts--than the government lawyers' effort to find or create a legal framework for the exceptional circumstances. They undertook this effort in good faith. It may have been a blunder, but it was no crime.

Contributing editor Tod Lindberg is a research fellow at the Hoover Institution and editor of Policy Review.