While it was happening we nerds debated the methods being used to extract intelligence form terrorist prisoners.
Many strongly expressed the view that anything done to these people that resulted in information that could save American lives was justified. Others were concerned about the moral and legal implications. Considerable damage was done to the image of Americans abroad and perhaps also to their self-image. The photos of Muslims being tortured by people in US uniforms are confronting and powerful images that will color attitudes to Americans for decades. The statistics of how many times some individuals were water-boarded (up to 160 times) belies the effectiveness argument and begins to look like punishment or vengeance.
Now we have a new administration that is trying to turn the page on that era but has to find an effective way to do so. No doubt many Americans would suggest simply leaving it there and trying to forget it ever happened. Others would feel that it is a matter of historical record and therefore subject to the worst interpretation if not investigated and resolved in a lawful manner.
The President has said that the junior officers and enlisted men who followed formal legal advice from the Administration will not have to face legal charges. I think most of us would agree with that, but it is sobering to reflect that the Nuremberg defense (I was ordered to do it) did not work for the Nazis at the post WWII war crimes trials – and this was largely due to the influence of American justice advisers. The perpetrators were hanged for their crimes.
However, there is a difference. Those American service people accused of torturing terror suspects were not simply following orders that had come down the military chain of command. They were acting on official legal advice coming from the top level of the USA administration.
Now we have the former AG actually saying words to the effect that
- I did not give a legal opinion on this.
- I simply passed on the authorization of the President.
- Torture is a crime.
- If the President authorizes it then it is not a crime
- Therefore it was not torture in this case
This is from the highest legal authority in the land at that time!
Will this line of argument stand up to close legal scrutiny? Would we have accepted it from the Nazis because Herr Hitler authorized it?
The man who had the highest profile leadership role in the “torture” was then the Vice President of the USA. He had classified all the documentation relating to the treatment. Now he is saying that it should be released to the public because it will reveal that, contrary to popular opinion, torture does work, and it provided valuable intelligence in the fight against terrorism. Or, is he really? The CIA denies it claiming that
“There were claims from inside the agency’s ranks that the move had undermined its ability to extract vital intelligence from America’s enemies, and could even blow the cover of some secret operatives.
Michael Hayden, who ran the CIA under President Bush, said before Mr Obama’s visit that the release of the memos had compromised the CIA’s intelligence gathering work and, in effect, aided America’s enemies.
Essentially this is a confession from the VP with an end justifies the means plea in mitigation.
The president now says that the Justice Department is considering whether charges should be laid against the people in the administration who gave the advice to our troops, the CIA, and FBI that torture was permitted and should be conducted in appropriate circumstances.
Perhaps this is a wise way to go. Discover whether any crimes were committed, and if so, prosecute them in the usual manner.
Should there also be an upper limit on indictments? (President; VP; AG, SecDEF)
What do the nerds think?
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