Torture Memos: Don’t Prosecute, But Change Law

what-me-worryThe recent release of memoranda used by the Bush administration to justify various aggressive interrogation techniques for use on suspected terrorists has led to widespread calls for prosecution, either against those who wrote the memos, those who approved them, or those who carried them out. The grounds for such prosecutions would be that the techniques in question amounted to legally prohibited torture.

President Obama was absolutely correct in pledging not to prosecute CIA agents who were operating under the authority of those memos, which constituted government policy at the time. Agents that exceeded the limits set by the memos could be subject to prosecution, like any other violation of the law.

However, should those who wrote the memos, or those (including, ultimately, President Bush) who approved them and made them official policy, be prosecuted? It is clear that the officials in the Justice Department who wrote the memos engaged in egregious legal casuistry to avoid labeling these practices as torture, the fact is that the law as it stood (and still stands) allowed them to do so. Similarly, the President, the Vice President, and their senior advisers bore ultimate political responsibility for the decision, but if their legal advisers were telling them that these techniques were legal, the basis for a prosecution would be weak.

What we need is the truth, and then we need to tighten the laws against torture to make sure that these abuses do not recur. Senator Patrick Leahy’s proposal of a truth commission with subpoena power would be the best way forward, but has lacked support from the Democratic leadership and has confronted strong Republican opposition. The alternative that is now taking shape is an array of investigations by committees of both houses of Congress. The Republicans will not cooperate, and will label any results as a partisan witch hunt, but this is a task that must be done. If a nonpartisan commission is not in the cards, then Congress must do it.

One part of the truth that we need is whether these techniques really did generate vital information that could not have been obtained by other means. These committees should be able to learn what information came out of these interrogations (though much may remain classified). Dick Cheney says that these aggressive interrogations did yield information vital to keeping the country safe. The evidence for that must be examined. Unfortunately, we can never know whether the same information could have been elicited by less aggressive means.

We, as a country, will need to decide how far to go with such an end-justifies-means doctrine, if it commits us to doing things abhorrent to our basic values. Those of Cheney’s persuasion would put security above anything, including values. Many Americans, though, are gravely worried about losing the essence of our humanitarian vision in pursuit of security, and wonder just what it is that we would secure at such a high price.

Those of us who worry about torture also ought to ask whether we should be equally concerned about the used of unmanned drones to bomb suspected terrorists in Pakistan and Afghanistan. If we torture a terror suspect, that is reprehensible, but he lives. And there is a high likelihood (not a certainty) that someone in our custody really is an enemy. If we bomb a Pakistani house where we think there are terrorists, it is virtually certain that innocent people will die, and not at all certain that the targeted terrorists will die. The evidence for the effectiveness of this tactic is strong, but does that justify its costs?

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Once we have gathered the information, through use of subpoena power with immunity from prosecution if necessary, then we should be able to amend the laws governing interrogations, tightening the language to block any repeat of the abuses committed by the Bush administration. Prosecutions would be a distraction from the larger issues.

President Obama could not have a better introduction to the mind of Latin America than this elegant classic.
John Peeler

LA Progressive

Published by the LA Progressive on April 23, 2009
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About John Peeler

John Peeler is a retired professor of political science at Bucknell University, specializing in Latin American and international affairs. His op-ed essays have appeared in The Christian Science Monitor and USA Today, as well as many in local papers in central Pennsylvania where he lives. He has had letters published in both the New York Times and the Washington Post.

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