The Wrong Argument Over Torture

The calls currently heard for an independent commission to investigate America’s use of torture in George Bush’s war on terror usually argue that a congressional investigation, or a straightforward criminal investigation under the authority of the Department of Justice, would become so politicized, or be so widely subjected to partisan attack, as to be hopelessly compromised.

I am not sure this is true, especially if it is a criminal investigation dealing strictly with existing law. What laws were broken? This can be ascertained in a straightforward way. Who broke them? Who can be charged with criminal responsibility? Such an investigation is already under way but may fail when it runs into the defense already generally offered by those who led and executed the torture: "I was only obeying orders."

Since the Nuremberg trials, that is not in law a valid defense.

Individual officials or soldiers are considered responsible for their acts. But it is probably a persuasive defense to a majority of the public, certainly in a situation, like this one, where the person charged with the crime usually had reason to think that the orders came ultimately from the White House.

The orders, presumably having passed down a chain of command, were in that respect legitimate, against which the moral scruples or legal opinions of the subordinates counted for nothing. To refuse was a career-ender. The military lawyers who challenged the system usually found that out, even though they were theoretically protected by their professional responsibility to defend the law as it exists.

Against them was the Bush administration claim that wartime executive power overrides all. This is nothing but an academic theory, with no standing in existing American law and untested in the courts. But it was the argument the president’s and vice president’s lawyers cited, and they nearly always prevailed.

Against the objectors was also the argument that torture works.

Virtually no one of those involved in this argument was in a position conclusively to prove or disprove a claim that the president and vice president wanted mightily to believe was true. Their view was backed up by the mass media and popular opinion. The pro-torture television program 24 was for a time the most popular entertainment on American television.

There were plenty of unofficial or quasi-official "expert" opinions to defend torture. The New York Times has just published a report on ABC’s broadcast in December 2007 of a claim by a former CIA officer, John Kiriakou, that waterboarding caused the suspected terrorist Abu Zubaydah to crack after "probably 30, 35 seconds" and to tell all.

Kiriakou claimed that "maybe dozens of attacks" were thereby disrupted. His claim was repeated in every major newspaper or broadcast medium in the United States, and by dozens of commentators. It’s reported that just last week the conservative Fox commentator, Sean Hannity, offered to be water-boarded for charity. (He didn’t say how many times.)

It turns out that Kiriakou had no firsthand knowledge of the matter, was repeating hearsay, and, according to the Justice Department, Zubaydah actually was subjected to the torture "at least 83 times."

The torture issue now has largely been turned into one of whether it "works." The question of law was dealt with by the Bush administration by saying that existing law is outmoded and yields to presidential prerogatives and national security interests. The argument cited against torture is that the damage it did to America’s reputation, and the aid and comfort it gave the enemy, outweighed its claimed advantages.

You can say that the Bush-Cheney position reflects the situation in much contemporary philosophy, which has renounced classical, religious, and other appeals to natural law or "eternal" or innate principles, in its attempt to establish a modern theory of justice.

Bush-Cheney-CIA empiricism asserts that torture "works." The Bush opponent, who shares this philosophical position, must claim that torture doesn’t work, or that the costs are too high.

I am reminded of a cruel joke. A man asks a woman seated next to him at a dinner if she would sleep with him for a million dollars.

With whatever hesitation or flirtatiousness, she ends saying yes she would. He then asks if she would do so for five dollars. She angrily asks if he thinks she is a prostitute. He replies, "We have established what you are; we are now dickering over the price."

(c) 2009 Tribune Media Services, Inc.

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