Of Law And Conscience

Much of the Conservatist reaction to releasing what are being called the “torture memos” is making a lot of noise about how future interrogators will feel unsure of their methods even though the DOJ has approved them. This is a highly troublesome position.

First, it assumes that the interrogators themselves are at some sort of risk by default. This is not all that irrational: interrogation is a highly subjective process, and the methods used are continually revisited as standards of conduct change. One would expect that any guidance received on the matter is temporary and likely to be revised or replaced in some future set of guidelines. However, the instances where individual interrogators have actually faced substantial prosecution and/or recrimination are few, and nearly all of those cases are against interrogators who stepped far beyond the lines of decency. There were, for example, very few if any such prosecutions following World War One, and while there have been many following World War Two those were for unnecessary cruelty in the Stalags, concentration camps and other similar sites and compelled by the ideologies that drove the governments responsible for them. In contrast, there have been relatively few such trials of interrogators in Chile, El Salvador or Guatemala, where such practices were not uncommon: the key culprits such as Pinochet have been the primary targets of legal proceedings.

Second, it assumes that personal ethics and sense of humanity are subordinate to the rule of law. If an individual interrogator is sufficiently disturbed by a particular technique to inquire as to its legality, that should in itself be a clear warning that, whether legal or not, the technique is probably not moral. It is not reasonable that an interrogator posing such a question should, on the assurances of his/her superiors, proceed blithely and unthinkingly with the technique following any such assurance. “It's OK – the AG signed off on this” may be an assurance of support from the administration, but it does not necessarily carry the force necessary to proceed without at least some questioning of moral rectitude.

Third, by implying that it is the interrogator, rather than the policymaker, that is to blame for any consequences of a particular technique. This would be true if the interrogator proceeded with a particular technique without discussing it with superiors, but far less so if the interrogator requests and is given explicit approval, and far less so if that technique is explicitly permitted in guidance proactively forwarded to the interrogator by the leadership. The implication is disingenuous, and dishonest, since it suggests that interrogators operate in a legal and moral vacuum unless provided guidance. By that suggestion, the first two listed assumptions are mooted simply because they remove the instruction deemed so fearful in them and hold the interrogator apart from the agency responsible for the interrogation. Questioning of detainees is rarely done without a reasonable understanding of the procedures, and acceptable conduct, of the process by those doing the questioning: this implication denies both that sensibility and the specific education required to perform such questioning.

Fourth, it addresses as piecemeal what has been implemented as policy. If a particular interrogation technique is employed without specific guidance or without specific prohibition, there is of course a risk to the interrogator that his/her methods may be questioned. However, if he technique is specifically listed as “approved” by agency or government policy, substantial risk to the interrogator is removed, and instead obtains to the agency or government that advocated the procedure in the first place. The authors of most of the statements denouncing the memos' release either do not or will not see this distinction: the moment a procedure becomes policy it mitigates the risk to the individuals employing it, thereby shielding them at least somewhat from pursuit should that policy change. Conversely, an agency or government that advocates more severe interrogation techniques runs a greater risk for that advocacy than one that does not, and risks (at least) its reputation and legality; while one that does not, regardless of the success or failure of its intelligence gathering efforts, will be far less susceptible to censure or prosecution for that.

Fifth, there are additional constraints in the US on what is acceptable behaviour than the opinions of the Department of Justice. The UCMJ, federal laws, codes of conduct and international treaty all bear on the the prosecution of war, the collection of intelligence, and the treatment of detainees. The behaviour of gaolkeepers should fall inside the constraints of the sum of these various instruments, not step outside certain ones as convenient. However, awareness of all such items requires a substantial level of education. This is where the guidance factors, though it depends on the honesty and integrity of the entities interpreting the sum of these codes. Action taken in ignorance of the obligations outlined in the sum of this guidance can be somewhat excused on the grounds of that ignorance: guidance given to those ignorant of the various laws and treaties that knowingly contradicts the sum of jurisprudence cannot. This is true whether the guidance given was given in somewhat less ignorance, or whether the guidance is in deliberate attempt to circumvent the letter and/or spirit of that jurisprudence, though the latter case is more egregious than the former and should be viewed as a more serious breach.

Last, and most importantly, interrogation should never be a process with which one is comfortable. The critics imply broadly that there will be a level of uncertainty in the intelligence community as to what is or will remain acceptable: for some reason the critics see this as unwise. Interrogation is a dangerous, morally challenging thing. It should always contain a certain level of discomfort: anyone involved in it who loses that runs the very great risk of becoming the kind of monster illustrated in countless tales of incarceration in places like Vietnam, North Korea, Nazi Germany and the like. For the critics to imply as they do that an interrogator can cheerfully go back to whatever inmate s/he was interrogating with a completely clear conscience after being given approval for the techniques being used is the pinnacle of impropriety.

Critics of the memo release have not created a straw man to argue for continued secrecy in interrogation techniques. However, they have sought to misdirect the concern away from the government that designed, approved and advocated some of the most horrendous practices in recent memory and toward the footsoldiers of the interrogation community tasked with applying them. This is dishonest, misleading and counterproductive.