The Issue of Torture is not about its Efficacy

I never really imagined in all of my 49 years on the planet that there would seriously be a debate in the United States about whether it is alright to torture a prisoner.  I don't think of myself as naive or unjaded, but it just always seemed pretty clear to me that American political culture would not sanction the overt use of torture as a legitimate means of intelligence gathering or war fighting.  I can just imagine what the reaction would have been among Americans if the North Vietnamese had said during the Vietnam War -- "of course we are torturing POWs like John McCain.  They are conducting an illegal, undeclared war of aggression on the Vietnamese people, a people that has done them no harm whatsoever; they are using chemical weapons on our citizens, they are indiscriminately dropping massive quantities of ordnance such as cluster bombs in civilian areas -- we need to know everything we can about America's war plans so as to minimize our already horrific civilian casualties."  How well do you think that rationale would have gone over with the American people generally and right wingers specifically?  Well, of course, the wingers would have frothed at the mouth in rage -- but not it turns out over principle, merely over accidents of birth.

Today the Washington Post features yet another screed by the aggressively stupid, disingenuous, and immoral  Marc Thiessen arguing that the torturing (once again using the Orwellian term "enhanced interrogation techniques") of prisoners has been so effective that we cannot possibly give up this weapon in our arsenal.  Thiessen asserts self-justifying, unverifiable McCarthyite claims regarding the efficacy of torture.  Now I am highly skeptical about this -- nothing written by professionals in the field suggests to me that this is true.  (And although markedly different, nothing in my questioning of hundreds of witnesses over the years in legal proceedings leads me to believe that coercive or bullying approaches elicit much useful or truthful information).

But in the end, I think this is not an avenue worthy of argument.  I actually don't give a shit if it's effective.  It's wrong, barbaric, dehumanizing, and altogether unworthy of how a great people and great nation would act.  We don't eschew torture for utilitarian reasons -- we do it based on our deeply held belief in our principles, in the rule of law, the dignity of man, and our shared common humanity.  We don't resist the use of torture because it is the easy thing to do or because we are not under threat or not afraid.  We resist it because we believe at a core level that some principles are sacrosanct even if we may face risk or even death at the hands of fanatics -- we stand by the essential tenet that we mustn't become monsters in order to defeat a monster.

It sickens me at heart that we even have to engage in this discussion. .   .           

Comments

[Anita]

You said so perfectly and well what my own heart is shouting on this matter. I commend you and thank you for this.

I'm writing Washington and urging everyone I know to speak out. We must be better than this.

[ari]

Hmm, I totally agree, C. It's just that I've also never entertained the hope that we haven't in the past tortured pows or detainees or whomever else the cia has had stashed away in dark rooms. The change, I think, is the new move to revel in our immoral acts, to champion them as an important part of our military and, dare I say, foreign policy toolkit. These are indeed grim times.

[Toast]

Word, Charles.

[Stephen]

In addition to ari's excellent comment, it's especially horrifying that people are willing to accept their government contravening its own laws "in order to keep us safe."

We can have a debate over the efficacy of torture if we want, but it should be completely irrelevant. Torture is illegal, and anyone who ordered it and/or carried out those orders - including those who provided false legal justifications for it - should be arrested and prosecuted.

If we also want to have a national debate about the efficacy of torture and whether we should change our laws, we can do that. But right now none of these discussions matter, because the law is settled and clear. I cannot understand how anyone could be ok with the government breaking the law, any law.

[Sir Charles]

But it's more than that Stephen -- the law can be an ass to steal from Dickens. The law can itself be unjust. But we know, at least those of us who remain fully human, that there is something so essentially wrong with torture, so dehumanizing and degrading, so cruel and cowardly that any nation which embraces it is forever defacing itself -- we don't actually need a law to tell us this.

Like ari, I have no doubt that Americans have committed torture and atrocities -- however, it is something entirely different for torture to be official policy and to be considered a legitimate "tool in the toolbox." It bespeaks a people who have lost a large part of their collective soul out of fear -- a people who have no sense of perspective, who are lashing out blindly as though we are the first to ever suffer from terrorism. It is ugly, juvenile, small, and warped.

[low-tech cyclist]

"we stand by the essential tenet that we mustn't become monsters in order to defeat a monster."

Those of us commenting here at this blog certainly stand by that tenet. But it's not like that's more than briefly been a generally accepted opinion here in the U.S. During the Cold War, we cozied up to all sorts of nasty dictators, the Somozas and D'Aubissons and Pinochets and Savimbis, and it was all OK, as far as our leaders on both sides of the aisle were concerned, because they were anti-communist.

The difference now is that we're no longer outsourcing our monstrosity; as ari points out, many are embracing it.

I'm not sure that how the American people feel about such things has changed much, though. What enabled the Bushies is that the gatekeepers of our national dialogue - the Broders and Hiatts and all - pretty much gave them a blank check to do whatever they wanted, with only the occasional mild tut-tutting at the most grievous offenses. And meanwhile, those gatekeepers shut genuinely liberal voices out of the debate, except for the occasional leftwing nuts that they could hold up as strawmen to discredit the impassioned but quite rational voices to their left.

And the Democratic Party itself cannot be mistaken for a bastion of liberalism. It is the descendant of the party that went along with our Cold War bad deeds, only far more cowed by the right by the time Bush became President. And both the party itself and the Broders of the world have done their best to fight against the party's becoming more representative of popular sentiments to the left of center.

This is not to say that there's a durable majority for shutting down torture, but that there's most certainly a substantial and robust minority for doing so, and our dysfunctional system has more or less kept us on the fringes of the debate over such things over the past eight years. And if you can't get a word in edgewise, you never get the chance to convince anyone in the wavering middle.

[litbrit]

Sir C, this is a luminous piece of writing. And they're beautifully, forcefully stated arguments, too. Bravo.

If we also want to have a national debate about the efficacy of torture and whether we should change our laws, we can do that. But right now none of these discussions matter, because the law is settled and clear. I cannot understand how anyone could be ok with the government breaking the law, any law.

Yes, yes, yes, Stephen. The law may be an ass, but it is the law, not some selectively-enforced notion, some shiny happy sailboat we only bother with when the skies are blue and the waters are calm. And its purpose is to uphold the protections and freedoms for us all that are laid out in our Constitution, not to serve the rich and/or powerful while punishing the poor, the marginalized, or the suspect.

But we know, at least those of us who remain fully human, that there is something so essentially wrong with torture, so dehumanizing and degrading, so cruel and cowardly that any nation which embraces it is forever defacing itself -- we don't actually need a law to tell us this.

In theory, of course we shouldn't need it. But we have it anyway--our own law as well as the body of law the international community, with our help, cooperation, and proud signature (!), established--and the goddamned Bushies broke it just the same.

All that said, though, I am glad to know there are people who have their heads screwed on properly and their hearts in the correct location--the amount of incomprehensible pro-torture bluster I've read and seen over the past few days has nauseated me.

[oddjob]

If Cheney et al. wanted to use torture and they actually gave a damn about the rule of law they would have done what Alan Dershowitz has advocated, and led us into a national debate about adopting torture officially as a tool of the state. To do that we would have had to formally walk away from several treaties that we have not only signed and ratified, but played central roles in crafting.

However, we could certainly do that if we collectively felt it was the best thing to do. (I would have been horrified by such actions, but I don't deny they would have been as legitimate as they were heinous.)

Cheney et al. didn't bother with that, and thus flouted the rule of law and became war criminals.

[oddjob]

This post of Sully's is relevant, although it doesn't directly address Thiessen. (Sully had several posts yesterday that eviscerated Thiessen's column.) I highly recommend you read it:

The Case of Richard Wilhelm Hermann Bruns, et al.

[Sir Charles]

oddjob,

Thanks for the link. I had not read Sullivan's stuff on this, but it is all quite good.

[big bad wolf]

very nice, SC. i especially like "We don't eschew torture for utilitarian reasons" that captures where we need to get (back) to.

[oddjob]

Thanks for the link. I had not read Sullivan's stuff on this, but it is all quite good.

I suspected you in particular would appreciate that. It's worth bookmarking for future reference, in case you should ever need the info.

It's remarkable to me that there are now those arguing that what we once regarded as a capital crime is now something we need to openly embrace as a tool of policy!

[oddjob]

Apparently (& if that was not already so) it's now a matter of public record (via the recorded dates) that the Bushies ordered up the Yoo/Bybee legal memos after the fact.

[oddjob]

OF COURSE! WHY DIDN'T I THINK OF THIS YEARS AGO?

...A former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that the interrogators find evidence of al Qaida-Iraq collaboration.

"There were two reasons why these interrogations were so persistent, and why extreme methods were used," the former senior intelligence official said on condition of anonymity because of the issue's sensitivity.

"The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."

It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 — according to a newly released Justice Department document....

[kathy a.]

of course you are correct, that torture is abhorrant no matter the circumstances. this is why the former administration insisted that its acts were not torture, and also worked ceaselessly to hide both policy decisions and their effects from the public, all the while fearmongering to keep public support for the war on terror.

at some basic level, the argument against torture is very simple: it is so outrageous and inhumane that it would be unacceptable if done to any of us, our relatives, our friends and neighbors. the pro-torture hotheads therefore must rely on classifying the victims of torture as "others," sub-human, deserving of it as a class -- regardless of guilt or innocence.

the point of torture is simply to get information useful to one's agenda. it matters not if the information is reliable, so long as it serves. there has been a considerable amount of work on false confessions here in the US, in the context of criminal cases. for a variety of reasons, people under pressure may falsely confess. for example, about 25% of the convicts who have been cleared of serious offenses via DNA testing had falsely confessed after arrest. http://www.innocenceproject.org/understand/False-Confessions.php

the previous adminstration worked hard to prevent any kind of meaningful judicial review of its detention of suspects. part of that had to be the desire to keep torture from the light of day; but the reliability of so-called intelligence obtained by these means is subject to serious question. we're not talking "technicalities" here; torture is a means of manufacturing lies out of the bodies of the unfortunate.

[Prup (aka Jim Benton)]

Sir Charles: First, don't think that my question means in any way that I disagree with a marvelous piece of writing. I agree 100%. But I was thinking about how the Theissens, et.al., come across as attorneys defending a (guilty) client. And I realized that you are a litigator. I am just curious about his, but:

If a participant in the torture, not a 'low-level functionary' but someone high on the decision chain, came to you and asked you to defend them in a prosecution for torture, would you

a) refuse the commission on the grounds of the public (if anonymous) statements you have made,

b) refuse the commission on the grounds that you knew, because of your strong feelings on the subject, you could not give them the whole-hearted defense any defendant deserves,

c) accept the commission -- but only if your clients were willing to plead guilty and provide information on those above them,

d) accept the commission, even if the clients insisted on pleading 'not guilty' and defending the Bush program?

And, if, d, how would you go about this?

(I'll be asking A.L. the same question in the same words. and no, it's not a trick or a trap, nor do I know how I would answer it were I a lawyer.)

[Sir Charles]

Prup,

e) I'd refuse the commission because I have the luxury of working only for clients whose mission I approve.

Seriously, although I am not always completely enamored of every case or task I end up working on, I devote 100% of my time working for unions, union-sponsored employee benefit plans, or individual employees. I am cause driven and a cynical true believer, although I like to be paid as well.

I am not someone who would have been comfortable doing criminal defense, although I like and respect a lot of people who do (like bigbadwolf and my former law school roommate). I think criminal defense takes a certain kind of mindset based on the important notion that everyone deserves a defense and that police and prosecutors make mistakes. It's an incredibly important role. Inevitably, however, a fair number of your clients are actually going to be guilty of some pretty nasty things and I don't think representing them would make me very happy.

[Prup (aka Jim Benton)]

Well put and thank you. Are there any criminal defense lawyers out there who have a different take on it? (I wonder, had i become a lawyer, if I would have chosen criminal defense, or preferred the more academic fields? Yes, next to playing third for the Pirates -- and then the Mets, my dream was to wind up on SCOTUS. None of the above did I have the capacity for though.)

And, as a spin-off from my question, if anyone is going to make a public defense of the President and the Torture Regime, what else can they say but what the Theissens et al. are saying? Maybe they should just STFU, but if they don't, what other defense had they than "it wasn't really torture" or 'it worked.' Neither being true...

[Sir Charles]

Prup,

Let me put myself in mercenary mindset. I think any defense lawyer worth his salt would a) invoke the horors of 9/11; b) note the "controlled circumstances" under which the interrogations occurred; c) stress the Presidential writ authorizing the interrogations; d) try and make some hay out of the neither fish nor fowl category in which these enemy combatants dwell; and e) did I mention 9/11?

I actually think a good defense lawyer could really have a field day with this case, even if it is rather clear that torture has been inflicted. Sad to say, I bet it would be extremely difficult for a prosecutor to get a unanimous jury verdict.

[litbrit]

Well, as someone who once aspired to a legal career (and who was accepted into just two of the six schools to which she applied, neither of which, sadly, were in my state), I thought long and hard about this myself, back in the day: would I--could I--be a criminal defense attorney knowing that a certain percentage of my clients would indeed be guilty of, as Sir C puts it, some pretty nasty things?

Well, not exactly: at the time, my legal hero was a DA under Janet Reno, and I thought I might do likewise: fight on the side of The People, perhaps in an environmental law capacity where I would be prosecuting evil big guys who pollute, deface, and otherwise destroy the delicate ecosystems of our once-ravishingly beautiful state (Florida). Yeah, I know, what a starry-eyed naïf. The other arena of law that interested me was representing the interests of abused and underprivileged children.

Even then, I knew myself quite well in that I doubted I could suppress my strong opinions about certain crimes--i.e. child abuse, animal abuse, and destruction of nature at the altars of development and corporate profiteering. If you're going to be a defense attorney, you must have a pure and unassailable devotion to the essence of the law itself, to the ideals of 1) due process for all and 2) justice taking the form of "better to have some guilty go free than a single innocent be unjustly incarcerated". Like Sir C, I have the utmost admiration and respect for this purism and professionalism--I just don't think I would've been capable of embodying it myself. I'll never know, though.

[litbrit]

Sad to say, I bet it would be extremely difficult for a prosecutor to get a unanimous jury verdict.

Not if he or she invoked precedent, i.e. previous war crimes trials, the circumstances of which have been bandied about a lot these past few days. Those defendants, too, claimed they were following the orders of higher-ups; they, too, claimed to have suffered their own 9/11's of sorts (certainly the times were beyond horrific for most of Europe's citizens in WWII, most saliently those faiths and ethnic groups targeted for capture and imprisonment in the concentration camps, as well as those who worried that their group would be next), thus even members of the Gestapo, for instance, might claim they were afraid and just did as they were told. But: there were numerous war crimes convictions just the same, because regardless of the circumstances pertaining thereto, these officers and doctors' and leaders' actions were judged to be crimes against humanity.

[anonymous lawyer]

Hi. I comment here every so often. I'm a criminal defense lawyer; actually, worse than that, I defend people on death row. This comment is anonymous because I don't publicly talk about my work, even under my pseudonym.

I would never be in the position of defending the architects of torture. All my clients are poor and lacking in power. Even for real money, which most defenders are not paid, it would be hard for me to make that kind of transition, and one of those impossible cases personally. Everything in me rails against the government inflicting unfairness, much less torture.

The adversary system is imperfect, especially in practice, but it is meant to sort rumors from facts; to let the state try to prove what is charged. Would you believe this evidence against your neighbor, and does it hold up against reasonable doubts? I wouldn't have particular problems representing underlings who carried out torture orders, or the ones who were tortured, because I do believe everyone needs a fair chance to defend, and everyone needs someone standing beside them.

Lawyers writing legal memos supposedly authorizing torture -- that boggles my mind. Someone will defend them, some TV lawyer. My stomach turns at the thought, though.

[Sir Charles]

a-l,

Death penalty work is incredibly important, given how capricious the imposition of capital punsihment is -- strangely enough my firm took on a pro bono death penalty habeas case a number of years ago. (Improbably enough, we ended up winning in the U.S. Supreme Court.)

And I hope I was clear that I have a lot of respect for the defense bar -- not my personal cup of tea, but an essential and honorable function.

[litbrit]

I would never be in the position of defending the architects of torture. All my clients are poor and lacking in power. Even for real money, which most defenders are not paid, it would be hard for me to make that kind of transition, and one of those impossible cases personally.

A very important distinction, anonymous lawyer; thank you for articulating it here. I think this gets to the guts of the matter with which we're wrestling here.

Everything in me rails against the government inflicting unfairness, much less torture.

Hear, hear.

[big bad wolf]

prup, i can tell you this for sure, if you had become a criminal defense lawyer, that would have ended your hopes of ever getting to the supreme court (or most other lower courts, state or federal, in the last 30 years). we are not beloved, but, then we are not all that loveable. we do drink more, but i think that has less to do with the job, then why we picked the job.

in 1996 after mcviegh blew up the oklahoma city federal building a friend of mine saying he'd love to take the case; i couldn't go that far. i guess that's why i am a public defender; i believe absoltuely in the job defense lawyers do, but i wouldn't want to have to evaluate my clients before i got them. you have to do that in private practice, weighing the big bankroll client against his (for a variety of reasons clients are mostly men) and it's really hard. for me, it's here he is and the question is: how do we get started and what should we do. i get to skip the "but i hate this guy" step. being able to skip that focuses the mind.

all of that is to say, that, were i a private criminal defense lawyer, my democratic-ness and distaste for torture would probably lead me to decline to take the case of a cheney or a yoo who wanted to pay me to represent him. everyone deserves a defense and people with money always get one. of course if i were appointed, i would go to the wall for the guy. that's what we do, because it is important that everyone get a defense. the fact is that the same government that in the name of creating freedom and safety tortures also hides evidence and shapes it in the name of protecting us.(i guarantee that every defense lawyer has stories about defense witnesses who were visited by an agent who reminded the witness that there could be a perjury prosecution if the prosecutor disbeleived the testimony. when a guy in a suit who is on the prosecution team tells you that, you tend to get nervous. especially since it doesn't take a law school education to know that prosecutors always believe anything that contradicts them is perjury (don't get me started on cop testilying) (rudy guiliani was a wildly successful and accomplished prosecutor; i rest my case) my guy may be guilty, but any conviction should be something earned, not an entitlement claimed by the government, any more than the ability to torture is.

i agree with SC that, if there are prosecutions, they will be anything but slam dunks; however, easy the case looks on a blog post (think john connally).

a step back to the OKC case. i thought the appointment process there was very interesting. mcveigh, whose case was pretty much hopeless, got an accomplished local criminal defense lawyer. nichols, who had a better case, got mike tigar (who cut his teeth with edward bennett williams, who got connnally off). tigar is almost as good a lawyer as he thinks he is, and that is saying a lot (to see love in its purest form, you had to see mike tigar talk at a legal seminar about mike tigar's work). it struck me that the judge, who was a very good judge, decided from the beginning that that the culpability of the accused in that case wasn't quite even. the personalities of judges, prosecutors, lawyers, accused, jurors all go into the rule of law.

another aside. the other night i mentioned the burr case. in it, john marshall, hero to all right thinking americans, played jefferson like a drum, partly to advance his own party's political fortunes. but he also, and this is very pertinent to the current issue, established in that case that the executive was subject to the courts and to process. that wasn't at all what jefferson had in mind, of course

[Sir Charles]

bbw,

I remember my firm consulting with Steve Jones, McVeigh's lawyer, on a criminal matter out in OKC. He's a very good attorney.

The power of prosecutors is pretty frightening. One of the unions that I used to do work for got caught up in a federal grand jury investigation and the level of coercion on innocent people was astonishing to watch. A bunch of people with whom I was friendly ended up spending thousands on defense attorneys despite having no culpability whatsoever.

[Stephen]

I gotta admit, it's very hard for me to maintain my usual levels of cynicism when it comes to defense lawyers, even the ones that get to choose their rich clients.

I hate the Yoo and Bybee and everyone else that were involved in Bush's torture regime. But I just as strongly believe that they deserve competent defense, and as long as their lawyers don't break the law in the course of defending them, I won't hold it against them if they're not convicted. That's what it means to be under the rule of law instead of under the rule of Stephen Suh or, for that matter, Barack Obama.

And y'all should be really happy we don't have the rule of Stephen Suh to deal with, because I've got three words for these people: Heads. On. Pikes.

[anonymous lawyer]

When the OKC bombing happened, I was out to inteview witnesses, and had to pull over because I was crying too hard.

Our government swung into action and passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which didn't do squat for fighting terrorism, but did make it harder for people who had unfair trials to get relief.

As for McVeigh? He gave up his appeals and was executed. We are all left to wonder how a kid who volunteered for the military wound up with a brain that could let him commit the worst act of domestic terrorism. Shouldn't we want to figure out what went wrong?

Sir Charles, yes; the power of prosecutors is incredible.

[anonymous lawyer]

Stephen: I assume you mean figuratively.

[Stephen]

Stephen: I assume you mean figuratively.

Um, sure. Let's go with that.

I try to be very consistent with my actions, but I reserve the right to be a huge hypocrite in my mind.

[big bad wolf]

we all could be prosecutors; we just lack the power. by that, i mean that there are very few among us who don't get very caught up in our own thoughts and beliefs and read the world selectively to find more support for those thoughts and beliefs. what keeps us from getting out of hand is that daily life keeps bringing us up short and reminding us that we don't get our own way. prosecutors in many places do not run into those kind of checks. they have the power and people usually---for good reasons---give into the power or, in the cases of judges and media, to the the rhetoric in which the power is dressed---safety, children, country. we need prosecutors, but prosecutors face a very, very dangerous temptation on the personal and political moral level to believe that everything they do is right and justified because they are the representatives of truth and justice and law on earth. (sound familiar? i think it is not inaccurate to think of prosecutions as hard power, and leading by example and suasion and going forward as soft power. i understand i am in a tiny minority on our side :))

criminal defense lawyers can be as sleazy as their reputations and even the best of them are not as noble as they'd sometimes paint themselves or are painted by others, usually liberals who are sympathetic to a particular case---oh he's young or poor. yeah, yeah, he's also a nut and dangerous. that doesn't keep me from advocating strongly and, i hope, effectively for him, but the systemic part of my job, which is very important i think, is to test the government's case,to make sure we put people in jail only after it is proved that they did something, to try to make sure the sentence is appropriate--get probation, counseling, treatment, much less jail---and to make people think about what they think they know and why they think they know it. it's fun, it's challenging, and i lose almost all the time, and that is not wrong and not because i am a bad lawyer (although i am ruling neither out, see above about what do we know). enough. i've talked way too much this week

SC, i meant nothing against stephen jones. i was trying to say only that, by appointing the national legal figure---tigar---to nichols, the judge was affecting the perception of the case from the outset.

A.L., no way it's a T.V. lawyer. not unless every other lawyer in the country turns them down. they are going to want to win, and they know you don't win with a t.v. lawyer

[Sean Matthews]

We don't eschew torture for utilitarian reasons --
we do it based on our deeply held belief in our
principles, in the rule of law, the dignity of man,
and our shared common humanity.

But you don't eschew torture. Otherwise there wouldn't still be a debate.

[Sir Charles]

Sean,

I am assume when you say "you don't eschew torture" you are speaking of the U.S.A. writ large -- I would like to think that most Americans if faced with the question of whether we should engage in torture (with none of the semantic bullshit about "enhanced interrogation techniques") would answer resoundingly in the negative, although I am sure that there are 20-25% of the population (the piss in my pants because of the scary muslims brigade) who would endorse it because it always works for Jack Bauer.

[Sean Matthews]

When I say that "you don't eschew torture" I mean that there is clearly no agreement in the USA about whether torture is an acceptable practice. If 75-80% of the population eschewed torture, then the current administration would not feel, as it has clearly does, that it had insufficient political capital to start criminal proceedings.

[Sir Charles]

Sean,

I think that your analysis is incorrect -- I don't think the Administration fears public opinion in the broad sense. I think they fear the combination of the Republican attack machine and the opinion of the Villagers, who will look askance at this attack on the very serious people who decided torture was necessary. I think they fear a media circus driven by Fox, Limbaugh, and the cable news stations, echoed by the Washington Post and Wall Street Journal editorial pages, plus the possibility of some Oliver North type spectacle in the proceedings themselves. They view it as a losing proposition politically.

Debate in this country on issues of this kind tend to be driven by elites. You saw that very much on Iraq, where the general public was ready to cut and run long before the David Broders of the world.

I share Obama's fear of this by the way -- I am incredibly angry about torture, but I think prosecutions could be extremely disruptive to his agenda in other areas.

[Sean Matthews]

Looks to me like you just rephrased my point: they feel they lack the political capital.

[Sir Charles]

Sean,

What are you, a lawyer? :-)

I think you're right about the political capital in the sense I described, but I think (maybe hope) that a substantial majority of Americans would not approve torture.

[Sean Matthews]

Cheap shot - sorry. But I personally see no reason to think that, outside the NYRB reading classes, there is strong majority objection, never mind deep, principled objection, to enhanced interrogation techniques in the USA. I don't think that the USA is particularly special in this respect: I come from Northern Ireland, and I have absolutely no illusions about what the man in the street (or my occasional blood relative, for that matter) is capable of thinking.

A well functioning democracy should keep this sort of thing under control. Or a Burkean democracy, at least, if not a populist one.

[Sir Charles]

Sean,

Well the people in Northern Ireland have certainly experienced the use of torture, among other ugly things. The Brits did not exactly shine in that environment either. (As the French did not in Algeria.) It's not like we're alone in our failings I suppose, but it's pretty disappointing nonetheless.

[litbrit]

A well functioning democracy should keep this sort of thing under control.

Well, yes, a well-functioning democracy should, and would.

The 2000 and 2004 elections--and various and many other episodes--were as regular blasts of birdshot to the face of Well Functioning Democracy for eight years. Repair work is under way, but it's going to take a while.

When the issue of torture is presented fully and fairly, with its history and ethical implications intact and its (non-)efficacy reported honestly, and the pertinent American and international laws are explained along with the likelihood that torture both intensifies foreign hatred of our country and risks the safety and lives of our own citizens held in foreign captivity, the vast majority of Americans, I have to believe, will object to the use of torture, certainly in all but the most extreme and abstract emergencies.

[Sean Matthews]

I was not thinking about what the British Authorities might have done to anybody (and I have no intention of going there in this discussion), or even what the people of NI might have done to each other. I was thinking of what the people of NI, who didn't actually do any violence themselves, were capable of seeing as reasonable or even justified.

Anyway, the point remains: the current administration has done lots of things in the face of 'Fox, Limbaugh, and the cable news stations, echoed by the Washington Post and Wall Street Journal editorial pages', but they have made it explicitly clear that no-one will be prosecuted for torture.

[oddjob]

No, they have not done that yet, not in the case of the torture implementers. What they have done is made it clear that they don't want to dwell on the matter while working on other pressing matters. They have also made it clear that they are reluctant to take this up, but they have not explicitly rejected prosecution.

As a matter of record Obama has indicated that decision is up to his Attorney General and has also said he does not want to prejudice the decision by commenting in advance.

Emmanuel's comment has gone through the classic not-completely-retracted-retraction of having it all spun as a misunderstanding of what he meant.

That's an indication not of an explicit rejection of prosecution, but of someone seeking wiggle room.

Yes, it's political double-talk, but that they are engaging in it indicates they feel the need not to, presently, explicitly reject torture prosecutions for those who installed or enabled the policy.

[big bad wolf]

sean, i think you might be mistaking an loud, opinionated, well-positioned right elite for a debate. i think SC and deborah are correct that a majority already oppose and that we can build that into an overwhelming majority with release of documents, discussion, and leadership. it's a teachable moment.

the nyrb has a circulation of only about 120,000; let's triple that cause we nyrb folks leave it on the train, at the gym, on the park bench, and at the school cafeteria. we feel we need to. we see people envying our copy. surely you don't think only 360,000 americans oppose torture?

[Sir Charles]

I think Emmanuel gave an off the cuff, political answer to a serious question (reflecting no doubt his own feelings about the benefits versus the burdens of undertaking such prosectuions).

I think the outrage of many made the administration understand that they needed to walk this back and at least pretend to give it an actual legal analysis. Where they go from here is anyone's guess.

[joel hanes]

And y'all should be really happy we don't have the rule of Stephen Suh to deal with, because I've got three words for these people: Heads. On. Pikes.

Hmmm. My own id wants "enhanced" interrogation of defendants Bush, Cheney, Rumsfeld, Yoo, Bybee, Gonzales, and Rice, until we get the confessions we seek. No torture, you understand -- merely stress positions, isolation, being trapped in a lightless box of insects, sleep deprivation, prolonged cold exposure, and hunger. And of course, waterboarding.
(Because these same people have assured me that such techniques are legitimate forms of interrogation, I'm sure they'll realize that estoppel does not allow them to seek relief when these methods are employed on them.)

[Sir Charles]

joel,

I think I see TV's next great reality show.