The Torture Memo

If you are living under a rock, you might be unaware that a memorandum from the Defense Department was recently leaked, and in this memo techniques for avoiding the law so as to "justify"¹ torture are put forth. Phil Carter has some excellent commentary. However, I have yet to see anyone make one point: whether this was actually implemented as policy, or whether it was merely advice. This renders his analysis suspect.

For example, let's say that I am SecDef Rumsfeld, and I put forth to my advisors the following propositions to defend:

1. Advisor Smith: The government has the authority to torture terrorists whenever it wants for whatever reason it wants (and assumes the authority to define who is and is not a terrorist).
   
2. Advisor Jones: The government has the authority to torture terrorists in extremis; for example, to detect a suicide squad heading for the President's motorcade.
   
3. Advisor Doe: The government never has the authority to torture anyone under any circumstance.

Now assume that my advisors come back with memos, and I accept the advice of Advisor Doe, with some caveats added from Advisor Jones' memo and some additional conditions added by myself. Assume then that Agent Smith's memo is leaked.

If I am the press secretary, I might make remarks such as:

White House press secretary Scott McClellan said yesterday that Bush set broad guidelines, rather than dealing with specific techniques. "While we will seek to gather intelligence from al Qaeda terrorists who seek to inflict mass harm on the American people, the president expects that we do so in a way that is consistent with our laws," McClellan said.

White House Counsel Alberto R. Gonzales said in a May 21 interview with The Washington Post: "Anytime a discussion came up about interrogations with the president, . . . the directive was, 'Make sure it is lawful. Make sure it meets all of our obligations under the Constitution, U.S. federal statutes and applicable treaties.' "

And they would be "directly contradicted by the plain language of the memoranda". So it seems to me that the key question in analyzing this is what other memoranda were presented on the topic, and what policy was adopted? Without that, no analysis could be complete. (Though judgements, including most assuredly the judgement that torture is never justified, do not require any such additional evidence.)

¹This is in scare quotes because there is almost never any reason for torture to be committed, and in those few cases there is still no justification in the sense of escaping responsibility. Let me clarify what I mean: should we torture a person - even a citizen - if that's what is necessary in order to save a city from, say, a nuclear bomb with a ticking timer? Yes, absolutely. But the people who make that call, and the people who obey the order and perform the torture, cannot be excused the law. They may be justified - a jury might even let them off - but they should certainly be impeached and/or tried (depending on whether or not they are officers of government) for the act. The pitfall of great power in a representative society is large accountability for your actions.

Posted by Jeff at June 9, 2004 07:29 PM | Link Cosmos