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.