The question of whether to open a criminal investigation into the conduct of Bush administration officials with regard to interrogation methods for detainees is burning bright for the Obama administration and the legal community at home and abroad. For some, the question is a simple one: Such techniques as waterboarding constitute torture, which is unambiguously prohibited in black-letter law under the terms of the Convention against Torture, to which the United States is a party, as well as under U.S. criminal law. Such techniques also run afoul of the Geneva Conventions regarding detainee treatment, which likewise binds the United States. These violations demand legal accountability for the perpetrators.
But who are the perpetrators? That's where things get interesting.
CIA operatives and their superiors apparently sought and obtained legal opinions from the Bush administration Justice Department--the so-called "torture memos"--authorizing in highly detailed terms the interrogation techniques the agency was permitted to employ on specific "high-value detainees." The intentions of the Obama administration are still unclear, but initial indications from the administration, including the president himself, are that the CIA interrogators who actually used the harsh methods will not be subject to prosecution. That seems to be because they were relying on the Justice Department's finding that certain harsh techniques (but not all harsh techniques) were within bounds. Even if the Bush administration itself subsequently changed its view on the bounds of the permissible to the point of withdrawing some of its initial legal conclusions on detainee treatment--a repudiation the Obama administration embraces and will likely extend farther--CIA operatives were relying on the guidance from the Justice Department about what was legal, and so should not (by this reasoning) be subject to prosecution according to a standard of legal conduct that was not in place at the time.
Many observers breathed a sigh of relief after Obama went to Langley and made comments in line with this position. The Washington Post columnist David Ignatius, who is well plugged-in to intelligence circles, warned of the debilitating effect on the agency the threat of prosecutions was having: "President Obama promised CIA officers that they won't be prosecuted for carrying out lawful orders, but the people on the firing line don't believe him. They think the memos have opened a new season of investigation and retribution." The willingness of operatives to take risky assignments, and not just with regard to interrogations but in all the legally murky aspects of intelligence and counterterrorism programs, could diminish to levels alarmingly dangerous to the safety of Americans if those doing this hard work cannot be sure that the lines they understand they must not cross won't be moved after the fact. One day you are serving your country by taking action; the next day you are criminally liable for having taken exactly that action. This is no way to run an intelligence service.
To this pragmatic consideration, one might add another: Does the Obama administration really want a war with its intelligence agencies? The amount of political damage intelligence officials can inflict through leaking sensitive information or shading findings in certain ways is vast--as the Bush administration learned the hard way. The Obama administration, which received a warm "not-Bush, not-neocon" welcome from the intelligence community, if not a fonder embrace, would have to be reluctant to jeopardize the good relations.
But what about the torture? Do you really want to let the people doing the actual torturing, if that's what you think they were doing, get away with it? If you are going to make a categorical imperative of opposition to torture, shouldn't everyone involved in the process be subject to accountability for their actions? If waterboarding is obviously torture and could not be mistaken for anything else by any reasonable person, then a piece of paper with a legal argument is hardly going to turn it into something else. If the conscience is shocked, it should stay shocked, no?
Moreover, that argument about how the interrogators were relying on Justice Department guidance is a bit convenient. The CIA has lawyers of its own. What did they think? Were they of the view that waterboarding and other harsh techniques amounted to torture? The Justice Department was responding to requests for legal advice from the agency. From the way in which the Justice memos were drafted, the agency's question was not simply, "What the heck should we do with these guys?" Here is how the memo signed by Office of Legal Council head Jay Bybee, now a federal appeals court judge, characterized the circumstances of the CIA's request for guidance in his memo to CIA acting general counsel John Rizzo on interrogating Abu Zubaydah: "In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an 'increased pressure phase.' "
The CIA was seeking specific authorization of specific techniques it wished to inflict on specific individuals for specific reasons related to the specific information the agency believed they possessed and would not give up easily in the absence of resort to the specified techniques. The picture of a lone interrogator acting alone obscures the bureaucratic apparatus unfolding just outside the "torture chamber" upward through channels straight to the top. The agency was seeking permission for what it wanted to do--or at least that is a plausible hypothesis one ought to investigate, if there is going to be an investigation.
Perhaps, though it's a stretch, we should refrain from inculpating those just doing their jobs in accordance with the legal standards made clear to them at the time. Doing so, however, would entail accepting a version of the "I was just following orders" defense. We have a record of taking a dim view of that defense; it wouldn't work for you if you were a trigger man at Srebrenica or the gas master at Treblinka. In any case, the whole point of relative lenity for those at the bottom is that you are most concerned to come down as hard as possible on those higher up, the ones giving the orders and making the policy. The Justice Department didn't order the agency to undertake interrogations in a particular way. It ruled on the permissibility of the requested techniques. Who gave what orders remains a mystery.
I have no doubt that some of those who have denounced these techniques as torture in clear violation of American and international law would be willing to prosecute all the way up and down the line, from President Bush to the director of central intelligence to (and here I have no specific knowledge of the structure, relationship, or precise names of the offices involved) the head of the operations branch to the director of the interrogations section to the desk officer for high-value detainees to the waterboarders themselves. Yet that is not the principle that seems to be emerging. The legal action, as we all know, centers on the Bush administration lawyers who drafted the "torture memos" and the senior administration officials who urged them on or supported their point of view to the hilt within the administration (and against countervailing internal views, including some coming from among Bush political appointees).
It's John Yoo and Jay Bybee, then of the Office of Legal Counsel, and David Addington, then counsel in the office of the vice president, who are in the legal crosshairs. They are the ones whose prosecution is ardently sought by foreign legal scholars and magistrates. They are the ones some Democrats in Congress have demanded that an independent counsel be appointed to investigate. They are the ones the U.N. special rapporteur on torture has singled out for their "complicity" (though he'd like to see the CIA operatives on trial as well). They are the ones whom Barack Obama rather pointedly indicated were not off the hook shortly after he said the CIA operatives were. Yoo and Bybee were the main subjects of a five-year investigation by the Justice Department's Office of Professional Responsibility, as we learned this week, and were reportedly recommended for disciplinary proceedings before state bar associations.
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.