Wednesday, February 17, 2010

Getting side-tracked ... Yoo and Bybee

My latest post on torture was intended to discuss the foolishness of payback and the evil of torture.

It got sidetracked into a discussion about how if an attorney gives an opinion someone doesn't like, then the attorney should be prosecuted. In the case of Yoo, he authored an opinion that resulted in a policy implementation. After the policy was implemented, Bybee signed off on the opinion.

I think the opinion was wrong. Basically it starts with a concept everyone agrees with: intent matters. I know of a case of a martial arts trained linebacker who interrupted a gang rape. In most circumstances what he did, in attacking fifteen punks, would be assault and battery. Since he was rescuing someone, he was considered heroic instead. But the concept is that if you are seeking information rather than seeking to cause pain, it changes what you are doing.

Then, given that intimidation and interrogation are allowed, they followed a definition that separates conduct by whether it causes permanent physical harm or not. No one faults giving sugar free cookies to a diabetic (something the FBI did). Eventually that argument can take you to very evil places.

I think the combination of arguments that was used were wrong. People who have implemented the policy have committed suicide over the feelings they've had after participating in "harsh interrogation tactics." Those in training who take the opportunity to experience the receiving end of the tactics are likely to drop out -- once they have been on the other side they can't bring themselves to do those things to others.

No one would think it acceptable for the police, or for a congressional inquiry panel, to question witnesses in that fashion.

But, prosecuting people for arguing for a position, especially Yoo who has taken a set of positions as a long standing academic approach? I have real problems with that.

My biggest problem is that there are a number of people who advocate trying people for being on the other side of the debate -- they are advocating trying people for treason. Their argument is that it aids the enemy to attack people, such as Yoo, and that even discussing what is wrong with torture is an act of treason.

Those people, when polls are taken, get more than half of the respondents in favor the treason trials. On the other hand, when prosecuting Yoo is suggested, the number is far less than half.

My suspicion is that if "payback" starts and if we start prosecuting people for opinions, it will not take long before the prosecutions are of those the majority favors prosecuting. That is how it goes and how McCarthy and others gained so much power. I see such an approach as dangerous and foolish.

Further, it distracts from the real debate: the one about both the evil and the futility of torture. FBI critics have been consistent in their challenges to the claims that torture works, to the individual cases (pointing out that torture failed and cookies worked, for example) and to the illegality. To allow the matter to be sidetracked into the politics of retaliation is likely to result in a complete rout of those who oppose torture.

As an aside, Bybee has spoken out that he thinks the position he took is very problematic. He was faced with a policy already in place and people in the military who had relied on the memorandum being signed to do things that if it was not signed were criminal. So he signed off. Should he have protected people who were following orders? That is a part of the Nuremberg question, after all. Just how far do we go in chasing down those whose thoughts we disagree with? That is our question now.

So, that is my opinion, that is where it takes us.


djinn said...

So is your argument that those Geneva convention rights against treason in a treaty we signed are just inconveniences? That if we kill the occassional brown person it's just hunky dory because--because why?

This is how it went down.
People in the US as you just admitted were committing war crimes. We're not supposed to do that. The Yoo and Bybee memos were explicitly cover for the known problems. This does not make the fact of the torture go awayl.

Governement--I want to somethiing illegal like waterboard someone 80 some-odd times!

Hmm. what to do? Oh, I know, I'll a legal opinion to say it's not torture!

Now I have my legal opinion, I'm safe, no more torture! Torture, uh I mean enhanced interrogage ho!

You see under such a formulation the whole concept of torture has been erased, because all you have to do is get some garbage (and I use that word deliberately) legal opinion that says X actually equals Y, said opinion ignoring pretty much every legal precedent, including the most important ones, and poof! You're off the hook.

And that excuse you gave for Bybee is criminal. Did you just say he knew that there were CIA agents out there that tortured people, and so he was deliberately ex post facto giving them cover? You find all of this admirable behavior? Good to know.

Under such a formulation, the government can do whatever they want, as long as they can find a justice official that they can dangle an appropriately-sized bribe in front of to get the opinion they want.

Is this really the country you want to live in? Apparently so.

djinn said...

I am horrified that you compare the Bybee torture memo--official governmental policy--as equivalent to giving a diabetic a cookie. How dare you. How dare you. Let's look at a bit of the wording:

To be torture, physical pain "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Bybee is currently being investigated for war crimes in Spain, so my admittedly poorly worded comments have some basis in actual fact.

djinn said...

This is the essence of our disagreement. You said:
"But, prosecuting people for arguing for a position, especially Yoo who has taken a set of positions as a long standing academic approach? I have real problems with that."

I agree that prosecuting people for simply and only arguing a position is very wrong. But Bybee did not argue a position. HE SET A POLICY. HE ESSENTIALLY DEFINED THE LAW OF TORTURE. This is not arguing a position, which then implies someone will determine if they agree with the position

He was setting US policy. This is the problem. Not only did he set the policy but he signed his name to it. It could be argued that John Yoo was arguing a position. In my further reading, I find that his name was not on the torture memo.

So, your argument that a mere argument is not actionable i could maybe agree with in the case of John Yoo, if, in fact, he did not set the police.

Jay Bybee, not so much.

Stephen said...

No, I will say it again. I think that torturing anyone is an obscenity. You may think the color of their skin makes a difference, I do not. It is not an excuse of any type that the person being tortured is of any racial, ethnic, social or religious group (or any other group).

There is no excuse.

You also missed the point on the comparison.

The comparison was that giving a sugar free cookie to a diabetic (which did not harm him at all) worked, whereas torturing him for months did not -- not that giving him a cookie or giving him a waterboarding session are the same thing.

I must really not be communicating well.

I argue that torture is both obscene and counterproductive. I'm not in favor of either things that are obscene or things that are counterproductive.

Stephen said...

And I definitely do not feel that the free speech rights against treason in a treaty we signed are just inconveniences though I see them as based in the constitution, not treaties.

djinn said...

I seriously don't understand your position. Saying something, "free speech," is different than implementing a policy. Your continued conflation of the two I find bewildering, One (talking) is protected, one (providing the legal underpinnings for what even you admit is not such a good idea) is not.

Tom and Suzanne said...


A thoughtful post, well stated. One question I have is how those responsible for torture can be somehow held to account without the whole exercise being portrayed as (or simply becoming) political payback. Have we become so fractured as a nation that we are unable to come to consensus on a subject as basic to our nature as this? And when dissent against something as evil and antithetical to American values as torture is construed as treason by some, it beggars belief. What kind of state do these demagogues want? Freedom of speech, tolerance of dissent, and assent to the rule of law even as we struggle in the manufacture of those laws--these are essential to our nation's survival.

I always enjoy your posts, Stephen. Best wishes to you, Win, and family.


Anonymous said...

So, you naive Americans got to find out about the dirty stuff that keeps you safe... And by god you just find it obscene! Heaven forbid any of you get your hands dirty in the dirty game of national security. But you'll be sure to condemn those who do. It's not your * on the line, right?

Think we've never tortured anyone until now? Think intelligence isn't vital? Think torture is always counter-productive? I don't.