Saturday, 18 April 2009

The Torture Memos

I had mixed feelings this week when the Obama administration took the bold step of releasing the Bush administration secret torture memos. Link.

On the one hand, I think it's more or less clear that releasing the memos is a positive step toward openness and resolution. We can get some verification and clarification of what had long been rumored, we can get clear on the attempted justifications, etc. (Some are arguing that it was a bad idea to make these procedures public because they worked. I've written before (sept. '06, jan. '05) what I think about these arguments so I'll leave that alone now.)

But, while I'm pleased that the memos have been released I've become increasingly troubled by Obama's decision and commitment not to prosecute any of these people. Here's some of what Obama said to explain why he didn't want to pursue prosecution of those who participated.

But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

There are a number of things I find objectionable here. (And, I refer interested readers to Keith Olbermann's commentary and a post by Chris Floyd that probably do a nicer job of articulating some of these concerns.) Let me try to spell out in three interrelated points.

1) The principle that "nothing will be gained by spending our time and energy laying blame for the past" seems to undermine a cornerstone of our system of justice, i.e., that crime cannot go unpunished. As Floyd notes "And cannot every criminal on the face of the earth now claim the Obama defense: 'Surely, your honor, nothing will be gained by spending our time and energy laying blame for the past. So let's forget the fact that I (raped/murdered/robbed/tortured), and move forward, shall we?' "

2) Anyone suspicious that the rules in the U.S. are only for the "little people"; that big finance and big auto and big brother can get away with flouting the rules, now has more basis for their concerns. If we contend that our government is above the law, that their illegal activity won't be prosecuted for whatever reasons, don't we undermine respect for the rule of law? Juxtapose this with recent data about the high incarceration rates in this country, particularly amongst African Americans and it suddenly becomes very difficult to argue that we don't have two sets of rules in this country.

3) Finally I'd like to further consider a point that Olbermann and Floyd have made, i.e., the concern that this response appears to appeal to the Nuremberg defense, i.e., the assumption that flouting the law is permissible when one is "simply following orders". It's useful to consider the reasons that we've rejected this defense. The Nuremberg defense suggests a very disturbing position on the role of law and the obligations of citizens. Laws, in this view, seem to be nothing more than manifestations of what the powerful want us to do. If, as I'd argue, laws implement and instantiate abstract principles of just practice, principles that we're all, qua humans and citizens, obligated to follow, then no dispensation from the powerful can override them. The Nuremberg defense is legitimate only if we assume that we're in a system in which laws are nothing more than rules and constraints put forward by 'the man", obligations created by and therefore retractable by those in power. If that's what we believe, then it's reasonable to allow that the government is allowed to make exceptions whenever it sees fit and the Nuremberg defense is a legitimate one. In the Nuremberg defense scenario, citizens are guilty if and only if they fail to do what the government tells them to do, there is no law beyond a base will to power. But we reject Nuremberg defenses if we hold that all people are citizens and all are obligated to follow the general principles of justice, rather than the pragmatic procedures decided on in secret by a small group of powerful men.

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