Training and Responsibility
By Thoreau
I certainly agree with Jim downblog that it will not be an injustice if people who “just followed orders” go to prison. They knew or should have known that what they were doing was a war crime, at least in the most egregious cases.
That said, I want to explore gray areas. I freely admit that they exist. I’m not going to use the existence of gray to argue that there is no black and no white so anything goes, the way that some apologists might wish to argue, but they do exist, and in addressing their existence we come to the most important argument for prosecuting not just the order-followers and the order-givers, but also the memo writers.
An underling in the field is not a lawyer. He has a responsibility to refuse orders that he knows to be illegal, but he is not a lawyer. When something is unambiguously criminal, like beating a prisoner to death, there is no wiggle room. But I admit that some things will in fact be in gray areas. Not being a lawyer, the person in the field can only go by his training and by the information provided by legal experts when he encounters a gray area. If a person in the field encounters something that appears to be a gray area, I might excuse him if he goes by the guidance of lawyers and manuals, and follows orders that are consistent with what the training materials and legal experts tell him is legal.
But in allowing latitude for the person who goes by his training in a gray area, we have to recognize that this imposes an even greater responsibility on people who write manuals, or legal experts who write memos. If we ever contemplate leniency for an underling who does something because a legal memo advises him that it is not a crime, then we have to impose a very high standard on the people who render that advice.
John Yoo wrote memos justifying anything and everything that the President wanted to do. He knew, or should have known, that most of what he was attempting to justify was a crime. Most of the things that he was writing about were very, very obviously illegal. In writing memos on these things he was not engaging in mere academic exercises. He was providing the misinformation needed to persuade people in the field to commit crimes. And if one wants to argue (rightly or wrongly) that some of the things Yoo addressed were genuinely gray, that is all the more reason to expect more of him, given his responsibility to provide accurate information for people who are not lawyers. The harder the question, the more important it is to get it right.
If anybody gets off on the grounds of “just following memos” then that is all the more reason to prosecute the memo writer. To whatever extent a memo is a valid excuse, it imposes a very, very heavy burden on the memo writer. A person who writes a memo rationalizing a crime, knowing that the readers will use it as a green light to commit crimes, is responsible for the crime.
Comment by dirge —
July 13, 2009 @ 1:55 am
I like to think of this as a sort of “conservation of liability” principle.
Perhaps Yoo’s memos can remove liability from those who relied on them, in whole or in part, but they can’t make it disappear. It still exists, and it belongs to someone: Yoo, his superiors, or the United States of America as a whole.
If you, me, and the rest of the United States aren’t willing to accept that liability, then there’s a short list of candidates for us to impose it upon.
I get that it might sound like I’m proposing a mechanism for disclaiming our democratic responsibility — because that’s exactly what I am proposing. There is only one way to show the world that America is not responsible for the Bush Regime.
Ritual sacrifice.
Maybe a media circus trial would do in these more “civilized” times. Perhaps it would be enough to strip them of Title and Privilege of Nobility.
But a State is a brutal beast; our apologies are either bloody or insincere.
Comment by ajay —
July 13, 2009 @ 5:48 am
But I’m not sure that Yoo’s memos would have made a difference to a hypothetical well-intentioned non-lawyer (call her Alice) who received them.
It would have been different had he been writing them about, say, phone tapping. Alice says to her supervisor, Bob, “are you sure we’re allowed to tap phones without a warrant?” and Bob says “Don’t worry, Alice, it’s OK under these particular circumstances, for complex legal reasons, and here’s a memo that explains why”. In that case I’d be inclined to cut Alice some slack.
But torture’s different. There’s no way that a well-intentioned person, ordered to torture, should have been reassured by a memo. It’s obviously wrong, and the reasonable person’s response to a memo saying “torture is OK” should have been “well, this memo is wrong too”.
Comment by Jim Henley —
July 13, 2009 @ 8:52 am
ajay stop writing my comments!
Comment by ajay —
July 13, 2009 @ 9:13 am
…which is not to say that I think Yoo should be cut any slack either. Guilt isn’t quantised.
Comment by joe from Lowell —
July 13, 2009 @ 9:35 am
ajay,
That’s precisely why Yoo went to such lengths to define certain interrogation practices as not torture.
Comment by Thoreau —
July 13, 2009 @ 11:13 am
I’m not suggesting that most torture is a gray area. I thought that was clear from the post. My point was that the mere existence of gray areas means that Yoo has responsibilities.
I will go this far on gray areas: There was a misinformation campaign to persuade the public that some torture methods “weren’t really torture.” That misinformation campaign worked for some people on some torture methods. That suggests that some people in the field might indeed be persuaded that there’s a gray area and go with the legal guidance. This just makes it all the more important to punish the people who provide the misinformation, e.g. Yoo.
Comment by Eric the .5b —
July 13, 2009 @ 11:33 am
If I read you right, Thoreau, Yoo essentially fabricated gray areas.
Comment by ajay —
July 13, 2009 @ 11:38 am
There was a misinformation campaign to persuade the public that some torture methods “weren’t really torture.” That misinformation campaign worked for some people on some torture methods.
I just don’t think that any decent, reasonable human being could have, for example, beaten and kicked a prisoner bloody until he confessed and still believed that what he was doing was not torture, whatever the memos he had received. Similarly waterboarding. Similarly denial of medical treatment. Similarly stress positions.
Maybe misinformation worked on the idiots at home, who couldn’t see what was going on, but on the people who were actually doing the torturing? I don’t think so.
Comment by Barry —
July 13, 2009 @ 11:50 am
Comment by Thoreau —
July 13, 2009 @ 11:13 am
“I’m not suggesting that most torture is a gray area. I thought that was clear from the post. My point was that the mere existence of gray areas means that Yoo has responsibilities.”
I back this 100%. To the extent that we allow people to get off for crimes because a lawyer *chosen by them or their superiors* says it’s OK, we either (a) allow the high and mighty to get a lawyer to write private law, or (b) hang the f*cking lawyers, to teach that lesson.
I’m ruthless on this, because I’m also 100% sure that this “lawyer’s private law” privilege is quite limited. I can’t see myself getting off for murder, no matter how many letters my attorney wrote saying that the ‘unitary Barry theory’ authorized ‘enhanced gun argumentation’.
Comment by Jim Henley —
July 13, 2009 @ 12:01 pm
Hey, this post looks correct in my work installation of Firefox!
Comment by doubled —
July 13, 2009 @ 3:42 pm
Joe from Lowell says: “That’s precisely why Yoo went to such lengths to define certain interrogation practices as not torture.”
And precisely why commenters on this site go to such great lengths to define certain interrogation practices AS torture.”
I agree wholeheartedly on Thoerau’s assertion that the greatest responsiblity for determining whether a procedure is legal should come from the lawyers who would have a closer, in depth reading of the torture statute. Expecting a grunt to have knowledge of such is ridiculous, so I am glad you aknowledge that there IS a gray area and eventually back away from your comment : “I certainly agree with Jim downblog that it will not be an injustice if people who “just followed orders” go to prison.”
But my main point, as I have tried to convey in lucid terms here before, is that the torture statute must be written in an ambiguous way (just as, unfortunetly, most of the laws our representatives pass are) so as to need interpretation from someone as to the legality of any new types of interrogation. I will admit my ignorance on this subject, but from what I’ve read, the statute doesn’t name ANY specific procedures at all, but instead is just a reference to suffering , of both the mental and physical varity. Now , I don’t want to (or feel the need to) argue whether sleep deprivation of undetermined length is torture, or that load noise or music is torture, or that showing detainees pictures of nakedness is indeed torture, or the holy grail for leftists, the waterboard technique is torture. For those being ‘questioned’ they will of course say it is indeed torture, for those wanting to paint an opposition party as evil will also do so. It is obvious that the detainees will continue to stretch the meaning of ‘torture’ to include the obtaining of any information in any manner whatsoever. Will those on this site follow? Will you even then draw a line on what means are acceptable for the military to employ in the garnering of intelligence? The good news I guess is we won’t need lawyers to try and ascertain the legality of a certain methods anymore, as none will be allowed.
To state that those who had to make the decisions on legality, balancing the need for state security (a rightful function of the executive branch) versus the ‘rights’ of non U.S. citizens caught on the battlefield who were not adhering to the protocols of the Geneva convention, as if they made them beyond any REASONABLE doubt with EVIL intent for selfish personal gain and therefore deserve to rot in prision is moral preening.
Comment by Eric the .5b —
July 13, 2009 @ 4:07 pm
I’m pleased that you acknowledge that our “grunts” have been lead into gray and black areas.
Comment by doubled —
July 13, 2009 @ 4:32 pm
I’m pleased that you acknowledge that our “grunts” have been lead into gray and black areas.
Yes , they have, but in my mind it was done by those legislators who wrote such a damn ambiguous law that needs ‘interpreting’ by ‘bastard’ lawyers.. Why do those on this site want to shit on those who are just trying to do an unbeleivably hard job (keep America safe in these PC times where anything you do can and will be held against you) and not direct any venom whatsoever on those who initiated the problem to begin with? Petty politics?
Comment by Eric the .5b —
July 13, 2009 @ 5:20 pm
Do tell.
Comment by joe from Lowell —
July 13, 2009 @ 10:48 pm
Holy Grail?
Water torture is the easiest one of your list, you sad little wanna be.
Sleep deprivation isn’t torture below a certain time frame. Stress positions aren’t torture, below a certain level of contortion and time. Temperature control, sensory deprivation, isolation – again, it’s the degree that determines whether those are torture.
But the water torture – the water cure, waterboarding, whatever you want to call it – is, and always has been for as long as the question has been asked, torture, from the very first drop that hits your lungs. It was torture when better men, better Americans, than you convicted an American general of torture for ordering it in the Philippines. It was torture when they imprisoned Japanese officers for using it on our troops. It was torture when we convicted American soldiers of torture for using it against captured Vietnamese, and it was torture when Americans convicted police in Mississippi for using it on suspects.
Comment by Jim Henley —
July 13, 2009 @ 11:45 pm
Doubled: you’re a genuinely bad person. The only time you are not mealy-mouthed is when you straightforwardly lie. I’m not just trying to jerk your chain; at some point you need to retrospect.
Comment by ajay —
July 14, 2009 @ 4:29 am
It is obvious that the detainees will continue to stretch the meaning of ‘torture’ to include the obtaining of any information in any manner whatsoever. Will those on this site follow?
doubled, I would be fascinated to read an account of any US detainee claiming that he was “tortured” when his treatment was indisputably not torture. But, of course, no such account exists. Meaning that your point is not obvious – it is, in fact, false.
Comment by doubled —
July 14, 2009 @ 10:33 am
Doubled: you’re a genuinely bad person.
You seem to think that of anyone who disagrees with you or dares to spout an opposing viewpoint. Must make you a genuinely good person?
Comment by doubled —
July 14, 2009 @ 11:00 am
I will also say in my defense, I have never used an ad hominem attack on anyone on this site, or lied about any fact. Most of my arguments are just that, an opinion to be engaged or ignored or ridiculed, an opinion of one of hoi polloi. Not sure how that equates me with blowing up bus stations , taking down skyscrapers with airplanes, imprisioning opposition party members, giving tax proceeds to cronies as opposed to those who truly deserve our help, etc….all of which I would consider the acts genuine bad persons. I have never condoned torture, only stated that the issue has some NUANCE ( to use a word the left loves to bandy about when it suits them) and maybe our leaders were just trying to do something, anything to avoid another 911. I for one don’t feel they should be imprisioned for their efforts. You do. I don’t feel you are a ‘genuinely’ bad person for holding such a position. If my posts are of such evil quality and intent, please feel free to ban me so as to not interfere with the preaching of the choir.
Pingback by Screw the hicks « Get Afghanistan Right —
July 14, 2009 @ 2:03 pm
[...] Thoreau at Unqualified Offerings defends the underlings with an informational asymetry defense: [...]
Comment by Eric the .5b —
July 14, 2009 @ 2:47 pm
And, disgustingly, the Reds are using the issue of it as a lightning-rod to distract from all the other little techniques the last administration green-lit. “Oh, only a few guys ever got waterboarded, why are we even making a big thing about this?” Harmless thing done only to a few really bad apples sells a lot better than beating the shit out of people, smothering people, or especially dozens of people admitted killed in the course of “interrogation”.
And it’s even smarter propaganda than rambling on about the “torture law” that’s just so unclear about whether you can, you know, torture people.
Comment by doubled —
July 14, 2009 @ 6:29 pm
And it’s even smarter propaganda than rambling on about the “torture law” that’s just so unclear about whether you can, you know, torture people.
Nice diversion. What is unclear is not whether torture is allowed, we all agree it is not. What IS at issue is WHAT constitutes torture legally. I looked up the statute itself earlier today. It is sec 18 part 1 which states that it is illegal to cause “severe mental or physical discomfort”, and even mentions that it has to be for a prolonged period of time. That is the rub , what the hell is SEVERE mental or physical discomfort? What the hell is prolonged period of time? Like the word beauty, it often in the eye of the beholder as to what IS beautiful. I could claim that to be severe you would have to inflictharm that requires medical care to cross the threshold, you could say that being under a bright light for an hour does, and WE BOTH WOULD BE CORRECT according to OUR interprtation of the LAW. Why is it so hard to understand that a law written so ambiguously would NEED a lawyer to try and figure out what qualifies as causing severe mental or physical harm, and what doesn’t, and what constitutes a prolonged time frame. Seems rational and logical, except to those who would rather make the issue into a bludgeon to hit an opposition party with, making demands that someone, anyone to do jail time.
Comment by joe from Lowell —
July 14, 2009 @ 7:02 pm
No, he thinks YOU’RE a bad person. Jim politely disagrees with people all the time.
Here, however, he’s singled YOU out as a bad person, and no wonder; you defend torture. That doesn’t just make you mistaken, it makes you a bad person.
Wow. Same sentence.
Comment by joe from Lowell —
July 14, 2009 @ 7:03 pm
I don’t do it, and if I did, it was to help the children.
Comment by ajay —
July 15, 2009 @ 5:04 am
doubled, if you are as honest as you say, you must – logically – occupy one of these two positions:
1. I condemn torture. However, nothing that the US did to its prisoners since 9/11 was torture, in my opinion.
2. I condemn torture. Since 9/11, the US has treated some of its prisoners in a way that I believe is torture, and I condemn the people who did this, those who ordered it, those who justified it and those who knowingly allowed it to happen.
Which is it?
Comment by Unqualified Neighbor —
July 15, 2009 @ 10:23 pm
I’ve always felt that the easiest definition was would we howl and go for blood if it was done to one of our captured soldiers? Yes, I’m sure that’s holding us to a higher standard than others, but I’m also for hanging those we capture who violate that (Nuremburg trials, etc).
Comment by Aresen —
July 16, 2009 @ 12:55 am
I think this test is a good one*. It is essentially an application of the Silver Rule.
*Although one does have to recognize that certain activities – say offering only pork as food to a Muslim or Jew – might not appear to a Christian as inflicting suffering even though the one subjected to it, depending on the fervor of his belief, might experience deep spiritual suffering because of it.