The Torturers and the Memo-Writers

The Hour

By Leonard Fein

Published April 22, 2009, issue of May 01, 2009.
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In his statement regarding the release of the shocking Department of Justice memos justifying America’s use of torture during the interrogation of terrorism suspects, President Obama said, “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

I was entirely comfortable with the president’s decision, but I wondered about his silence regarding those who provided the legal advice. The country would not benefit from a prolonged legal proceeding against the CIA and other personnel who did the waterboarding and the other heinous acts described in the memos. Even the American Civil Liberties Union apparently agreed: In a recent e-mail soliciting support, Anthony Romero, the ACLU’s executive director, wrote, “We need your continued support to make sure those who broke the law by authorizing these heinous crimes are brought to justice.” In other words, it is those who authorized the crimes rather than those who directly perpetrated them who should be brought to justice.

That would be no small thing, since those who authorized the crimes include not only senior Department of Justice officials but also, it more than seems, the prior vice president of the United States; former secretaries of defense, justice and state, and, quite possibly, the previous president himself.

But whatever the disposition of future investigations and prosecutions, there is a very different issue raised by President Obama’s original formulation. It was simply too close to “I was just following orders” for comfort. Does there not come a point at which a soldier, or an interrogator or anyone whose conventional responsibility is to do as told is required instead to withhold consent? And: Is there a point at which an underling may say that an order, no matter how auspicious its source, is manifestly illegal?

The current issue is complicated by the flow of authority. The authors of the Department of Justice memoranda were responding to queries from agents in the field, some of whom seemed to be pressing for expansive definitions of the permissible while others were counseling restraint. CIA headquarters was also involved in managing what the agents did. And the actual perpetrators, it turns out, were contract employees; the torture was outsourced. So while ultimate responsibility for the “legal authorizations” is clear, the rest — who was ordering whom, and under what authority — is murky.

Which brings me back to the issue of moral responsibility. Here there is a mountain of precedent, going all the way back to the 15th century and accelerating rapidly after World War I. The claim of subalterns that they were “only” following orders had special prominence at the Nuremberg trials, so much so that the claim is now known as “the Nuremberg defense.” And the claim figured prominently in Israel’s early years, both at the Kafr Qassem trials and the Eichmann trial.

Kafr Qassem, 1956: On the eve of Israel’s invasion of Sinai, a special curfew was imposed on those areas of Israel inhabited by Israeli Arabs. No one was permitted out of doors between 5 p.m. and 6 a.m. On the first day of the curfew, some Arabs were away from home when the restrictions were announced. When they returned to Kafr Qassem, where they lived, Israeli border police, in line with the orders they’d received, opened fire and killed 48 of them — 19 men, 6 women and 23 children.

It took two years, but finally 11 border policemen were indicted and eight, including the two officers in charge, were convicted of murder; the Nuremberg defense was explicitly rejected. Still, punishment of the eight turned into a bad joke: The original sentences of the two officers were for 17 and 15 years in prison. On appeal, these were reduced to 14 and 10 years. Then the army chief of staff reduced them to 10 and 8 years; Israel’s president reduced them to 5 years each and, finally, the Committee for the Release of Prisoners ordered the remission of one-third of the prison sentences, resulting in all the convicted persons being released from prison by November 1959, 13 months after their convictions.

Later, during the Eichmann trial in 1961, the Israeli court could and did draw on the Kafr Qassem precedent in rejecting Eichmann’s effort to introduce the Nuremberg defense. (And Eichmann, of course, was hanged, the only instance of capital punishment in Israel’s history.)

But all that is not adequate as analogy to the current American case, since we are now dealing with orders proclaimed to be legal by the very people charged with deciding what “legal” means in specific circumstances. It is those people who argued that the Geneva Conventions were not applicable and who went on to provide and even encourage a free ride to “harsh treatment” and torture. It makes no difference that they may have been searching for ways to justify the express policy preferences of their own superiors, since they were charged with providing expert and independent interpretation of legal requirements under the Constitution and applicable international law.

The president has now apparently come to the right, albeit awkward, conclusion: He does not rule out the possibility of action against the key former Justice Department officials. Though Obama has repeatedly said that he vastly prefers to face forward rather than backward, he seems to understand that to take a pass in the face of what the memos revealed is no longer, if ever it was, an option. For what (read: who?) would then stand in the way of future legal officers yet again relaxing the definition of torture, denying the relevance of Geneva?

Still, awkward: What happens if and when the former officials who drafted the memos plead “superior orders,” and point to Dick Cheney as the lead culprit?


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