A Semi-Comprehensive Argument for Torture Prosecution

As a follow-up to JJ's two previous posts, I'm going to throw my meager weight into the ring on the "Enhanced Interrogation Techniques" issue. You can probably guess what I'm going to say:

1. Waterboarding a human being hundreds of times or placing them in a box with an insect after it had been revealed that this was a particular fear – months after any information they had would be relevant, I remind you – is TORTURE. To quote John McCain, "It's unacceptable. It's unacceptable. Once is too much. Waterboarding is torture. Period."

2. One hundred prisoners held by the United States have died during the War on Terror. At least eight, and possibly as many as twenty-six, of those were killed during the application of enhanced interrogation techniques. No, these techniques were not safely used to "scare" prisoners into talking.

3. Torture and homicide are illegal. The effectiveness of the techniques – which is doubtful, in any case – is not even relevant. They are illegal. Period. And not just illegal, but war crimes.


The fact that there are a range of culpable actors involved, and in a wide range of capacities, certainly complicates the assignment of blame. Until all of the facts are on the table – if they ever are all on the table – we cannot know exactly who was primarily responsible. And even if and when everything is known, we can debate whether the CIA agents who carried out the torture should be held blameless because they were merely following orders, or whether they are the most responsible of all.

But at this point, we can say this much: everyone whose name is on these memos should be in jail. That's Jay S. Bybee, John C. Yoo, Robert J. Delahunty and Steven G. Bradbury. Probably Condoleezza Rice as well. And possibly even Dick Cheney (PDF).

Lord knows who else. But I cannot be clearer about this: those people should be in jail. They're murderers. No, that's not hyperbole: that's precisely what's at stake here: they knowingly worked around the rule of law to justify serious bodily assault that ended up killing eight or more people. It does not matter that the tortured were suspected terrorists with potentially life-saving information. It does not matter. To quote Fox News commentator Shep Smith: "We are AMERICA! We do not fucking torture!"

At the very least, these four people could be convicted of war crimes and then pardoned in the interest of partisan reconciliation. What matters is that their guilt be crystal clear and arrived at through the established legal procedures that we have for dealing with war criminals. In the meantime, they should be stripped of their posts (Bybee has been appointed a federal judge; John Yoo teaches law at the University of California).


As for the Kos diarist JJ talked about, who argued that we should just let this slide so as to spend political capital elsewhere: people like that are what made the crimes of the Bush Administration possible in the first place.

In this respect, I like the position being developed at the Atlantic by Ta-Nehisi Coates and Andrew Sullivan: that to view prosecutions as a mere expenditure of political capital, rather than the pursuit of justice that would bring America back under the rule of law, is shockingly narrow thinking. Strong action on this issue, by an administration as symbolically powerful as Obama's, in a way that makes us more safe, is exactly what this country needs on every level. This is not a political liability, it is an opportunity to do what is very deeply right.

In any case, it's not Obama's decision: it's Eric Holder's, or that of the special prosecutor he could choose to appoint. There's no need to make this a political issue at all.

Jail, motherfucker. Let's make this happen.