On torture outrage, let’s take a step back
By Harvey Silverglate | Thursday, April 23, 2009 | The Boston Globe
“…Unless we are prepared to allow the war on terror to inflict further damage on our legal system, we need to step back and ask if perhaps better sense, and cooler heads, should prevail in the face of righteous outrage at our government’s conduct. Steps might be taken short of prosecution. Ethics investigations could be (and indeed are being) conducted of the Department of Justice lawyers who drafted the memos – among them current Berkley law professor John Yoo and sitting federal appellate judge Jay Bybee. Discipline could include disbarment as well as judicial impeachment. But prosecutions could, and likely would, wreak havoc on principles that civil libertarians should seek to protect, not evade….”…BS
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There was a former chief prosecutor on the Rachel Maddow Show last night who suggested that appointing a special prosecutor right now would actually be counterproductive, since it could (i) keep others who planned to come forward as “whistleblowers” from doing so, (ii) interrupt the “public story” as it is unfolding (and needs to be heard), and (iii) could limit the investigation and potential indictments and prosecutions to a small number of people and crimes.
As a general matter, I also think we all need to step back, but for a different reason.
I am no fan of Bush, Cheney, Rumsfeld, Rice, torture, etc. But I have read the memos and I believe that all of the hyperventilating on the left is overblown. Yes, torture was used. Yes, it was justified as the result of a combination of “bad law,” and political chicanery. Yes, it was illegal and wrong and morally repugnant, and heads should roll – all the way to Bush if necessary. Yet perhaps most salient is that according to almost every top-level interrogator in both the CIA and the military, “enhanced techniques” – and particularly violence and torture – do NOT generate accurate intelligence; they lead almost inevitably to either even stronger resistance, or to “bad” intelligence.
However, of the 10 or so “techniques” used, only waterboarding is actually “torture.” The other techniques – face slapping, stomach slapping, walling, confinement (even with insects), sleep deprivation, etc. – as repugnant and minimally physically painful as they may be, simply do not rise to the level of “torture.” Yet the left is making no distinction here: they are using the word “torture” as an “umbrella,” despite the fact that only waterboarding rises to that level.
So yes, I think we all need to step back and re-assess what’s happening here. As noted, there is no question that torture was used and inappropriately legally justified, and that people should be held accountable – including criminally – for this. But we do ourselves no favors by taking an “extremist” position based on our outrage. If we want or expect the “other side” to be honest and forthright, WE cannot then be dishonest in the way we discuss and approach the issue.
Peace.
Posted on 23-Apr-09 at 10:18 am | Permalink