Tortured logic

Attorney General Holder is going to prosecute those who tortured -- but only if they didn't do it right

August 10, 2009 7:11PM (UTC)
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U.S. Attorney General Eric Holder sits during a hearing at the House Appropriations Subcommittee on Capitol Hill in Washington April 23, 2009. Holder said on Thursday he was considering forming a financial fraud task force and that a "more comprehensive" view was needed.

(Updated below)

Editor's note: Glenn Greenwald is on vacation this week. Digby is guest-blogging today.

We weren't sure he was going to even go this far, but according to news reports over the weekend, Attorney General Holder has decided on a "narrow" investigation into torture. In fact, it's so narrow that it won't investigate any of the torture that was authorized by DOJ functionary John Yoo at all. Using inverted pretzel logic, they are apparently going to go after those who failed to follow John Yoo's directives.


For instance, according to the LA Times, Holder will not investigate allegations of waterboarding in themselves, but rather if they failed to properly follow their waterboarding instructions to the letter:

The inspector general also voiced alarm over how much water was being used. Rather than dripping liquid from a canteen, as the 2002 memo envisioned, CIA interrogators "applied large volumes of water," raising questions about whether the method "was either efficacious or medically safe." Because of such documented discrepancies, Justice Department officials and legal experts regard the waterboarding abuses as cases that hold the most promise for prosecution.

I think we can all see the problem here, can't we? By prosecuting waterboarding "abuses" we are essentially declaring waterboarding under John Yoo's only slightly less sadistic guidelines to be legal. Evidently, the new standard will be that if you're going to torture, you'd better do it right.

But it is actually worse than that. Buried in the LA Times story is an item I hadn't heard before, but which one would think would be important in all this:


Officials said it wasn't clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo. "A number of people could say honestly, correctly, 'I didn't know what was in it,' " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program. The CIA report also cites cases in which interrogators engaged in potentially illegal improvisations. One interrogator brandished a gun, former CIA officials said. Other prisoners were reportedly threatened with bodily harm, including being buried alive.

It's hard for me to see how these memos can be considered legally binding if the people who allegedly followed them didn't know they existed. And if they didn't know of the memos, the obvious question is what legal basis they thought they had for doing any of it? If they can't be held liable for "abuse" of the torture techniques because they didn't know the techniques could be abused, did they think they could do anything at all? These seem like questions worth asking.

If these questions aren't asked, you end up with an incoherent legal structure that says that if you waterboarded a prisoner "properly," that is by using the legally sanctioned amount of water to temporarily drown them, you cannot be prosecuted. But if you merely threatened the prisoner with bodily harm, you could be in big trouble:

The CIA report also cites cases in which interrogators engaged in potentially illegal improvisations. One interrogator brandished a gun, former CIA officials said. Other prisoners were reportedly threatened with bodily harm, including being buried alive.

Meanwhile, such truly horrible psychological techniques such as long term sleep deprivation escape scrutiny altogether.


One begins to see why the CIA is so threatened by all this. They are being asked to answer for something that makes no sense. (Obviously, they all have free will and could have declined to participate at all, but that's another subject.)

And, of course, even worse than all that (if that's possible) is the fact that by validating John Yoo's directives, they are also validating the idea that obscure Justice Department officials can be granted the authority to essentially immunize officials at all levels of the government, from the president down to the lowest field officer, by issuing a secret memo. This is very important new development in western jurisprudence and one that surely requires more study and consideration. If Richard Nixon and Ronald Reagan had known about this, they could have saved themselves a lot of trouble.


Andrew Sullivan says that Holder's plan is much worse than nothing because it is:

...the kind of split-the-difference pragmatism that will end up alienating everyone. It is vital that the Obama administration does nothing to imply that what was authorized within the rules under the Cheney torture program is in any way legal, defensible or moral.

It strikes me that this isn't actually pragmatism at all. It will protect Cheney and his lieutenants, to be sure, but doing this is going to cause a great deal of dissension among the intelligence services for no real purpose. The bad apple approach doesn't solve the political, legal or moral problems. Indeed, that seems so clear that you have to wonder if this isn't being done to serve some other purpose.

As it happens the UK is dealing with some similar issues right now, with the Binyam Mohammed case heating up with the revelation that the government lied about knowing he was imprisoned in Morocco. (MI5 is accused of being complicit in Mohammed's horrifying torture after he was "rendered" there in 2003.) As Glenn discussed at length when it was revealed, the Obama Administration issued a memo to the UK that the US would withhold vital anti-terrorism information from the British Government if they allowed their judges to release information to the public about the torture programs. I personally always felt this was unlikely to have been a real threat, but rather a result of collusion between the two governments to keep the information under wraps.


But one wonders, considering the recent activity on this front in both countries, if they both haven't decided that they are both better off conducting some show trials on the torture issue rather than trying to sweep the whole thing under the rug. If pragmatism is what's guiding the administration on this, I suspect it's this kind of Real Politic pragmatism rather than domestic political considerations. Otherwise they wouldn't be making the laws governing this issue even more obscure than they already are.

UPDATE: The ACLU produced this powerful video, also called Tortured Logic, featuring the actual words of the notorious OLC Memos.


You can go here to send a message to Attorney General Holder telling him that you want him to launch a comprehensive investigation of the torture regime.


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