Deterring Torture Through the Law

"First, let's kill all the lawyers" may have made sense in that Shakespearian scene, but there is a far simpler solution to the legal ambiguities regarding what to do now about the torture approved by President George W. Bush. We suggest this variant: First, let's have the lawyers review their notes from Criminal Justice 101.

The professor whom Coleen Rowley had for that course at the University of Iowa was the consummate curmudgeon. He kept repeating himself. It is now clear why. The old fellow hammered home the basic purposes of the criminal justice system and the various kinds and degrees of criminal intent. For Rowley, 24 years as a FBI special agent and attorney helped make it all real.

Eight years of the Bush/Cheney administration have served to make the matter of criminal intent the first essay question on the final exam for Criminal Justice 101, so to speak. But obfuscation (much of it deliberate) reigns; worst of all, it impedes the important task of seeking accountability for those responsible for torture.

Criminal intent comes in essentially three kinds: No one needs much help understanding the "deliberate-premeditated-cold blooded" first-degree intent, because that's the stuff of the movies--the perfect murder scheme or elaborate plot to pull off the heist of the century. "Second-degree intent" is also easy to grasp. It is the usual label for what prompts people to commit unplanned crimes in the heat of passion, for example.

It was to that third type of guilty intent-"recklessness"-that the old law professor devoted most emphasis, using his favorite "Russian Roulette" hypothetical to distinguish it from the first two types and from mere negligence. His words still ring: "One cannot simply put a gun on a table knowing there is a bullet in the cylinder, spin the cylinder, point it at a person, pull the trigger and then say (when it goes off), 'It's not my fault, because I was hoping it would spin to one of the empty chambers.'"

The First and Third Degrees

The evidence on the Bush administration's torture decisions, which is becoming more abundant and damning as the weeks go by, rules out second-degree intent; i. e., unplanned crimes in the heat of passion. These decisions were much more deliberate. As the saying goes, after 9/11 "everything changed." With virtually no opposition, the president was allowed to declare the country in a "war on terror" and consider himself above the law.

Indeed, after his address to the nation on the very evening of 9/11, Bush assembled his top aides in the White House bunker and set a lawless path from the start. One of the aides present, Richard Clarke, has written in his memoir, Against All Enemies, that the president insisted: "[W]e are at war...Nothing else matters...Any barriers in your way, they're gone...I don't care what the international lawyers say, we are going to kick some ass."

A bipartisan report released on Dec. 15, Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, highlights in its "First Conclusion" the fact that on Feb. 7, 2002 the president issued a written determination that the Geneva protections for POWs did not apply to al-Qaeda or Taliban detainees; and that following that determination, techniques like water boarding were authorized for use in interrogation. The U.S. Supreme Court ruled in June 2006 that such detainees could not be exempted from the protections of Geneva, despite efforts to "redefine the law to create the appearance of legality" for aggressive techniques, as the recent Senate report puts it.

Sounds Premeditated, No?

Administration apologists, from Rush Limbaugh to Attorney General Michael Mukasey claim that none of those who approved or conducted torture had guilty intent, but were only trying to protect national security. (That's right-the same Mukasey who professes not to know whether water boarding is torture.)

Mukasey's sophistry calls to mind the disingenuous argument of other administration lawyers that one could apply harsh interrogation techniques to a detainee, as long as your intent is not to inflict pain but rather to obtain information. Not to mention the pithy hint provided by a CIA attorney: "If the detainee dies, you're doing it wrong."

Add to this mix the remarkable guidance of Justice Department counsel, Jay Bybee (now a federal judge), quoted in the Senate report:

"Violent acts aren't necessarily torture; if you do torture, you probably have a defense; and even if you don't have a defense, the torture law doesn't apply if you act under the color of presidential authority."

Clearly, the so-called "rotten apples" sat atop the proverbial barrel, as the Senate report demonstrates time and time again. If you'd like still more proof of premeditation and you missed Vice President Dick Cheney Monday on ABC TV bragging about his role in facilitating water boarding, please read the transcript.

Cheney's was the familiar above-the-law attitude, a reprise on his contemptuous "So?"-in this case meaning, "So what are you going to do about it?" With Cheney admitting to his key role in water boarding, Mukasey is no doubt relieved that during his confirmation hearing he obeyed White House instructions to stonewall all attempts to get him to concede what the whole world knows-that water boarding is torture.

Indeed, the law is not in question. Water boarding was wrong during the Spanish Inquisition and during the Spanish-American war in the Philippines. It was illegal during WW-II. Americans as well as Japanese have been convicted and severely punished for it.

Recklessness

For those, who despite the above prefer to give President Bush the benefit of the doubt regarding first-degree intent, should know that the third type of guilty intent, recklessness, also applies-in spades.

For example, Cheney's lawyer, David Addington, and then-White House Counsel Alberto Gonzales dissed the hapless former Gen. Colin Powell, who as secretary of state wrote to the White House in January 2002:

"A determination that Geneva does not apply could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries."

A pity Powell did not have the courage of his convictions, for he now has reason to be concerned about an eventual conviction of a different kind. Beneath the circumlocution quoted above is his clear appreciation that, if he did not fight against what was clearly in the cards, torture was likely to sully the Army and the nation to both of which he owed so much.

"Could introduce an element of uncertainty in the status of adversaries," writes Powell. Could introduce, say, reckless Russian roulette. In his interview with ABC, Cheney put the old law professor's hypothetical smoking gun right out there on the table.

Deterrence

A widespread lack of understanding regarding the purposes served by the criminal justice system-and the penal system-is a major obstacle to even entertaining the thought of prosecuting administration officials for torture. All too many pundits are claiming that the country should simply move on and just close the book on this painful chapter-and that to do otherwise would simply be to try to extract vengeance.

But it is not about vengeance. The key goal here is deterrence-the final and most important goal of our criminal justice and penal systems in such circumstances.

At this point, the emphasis needs to be on establishing the facts-not punishment. Priority must be given to determining how our country ended up torturing people. Just as Cheney has termed water boarding a "no brainer," it is equally a "no brainer" that we must focus now on his self-admitted role, as well as the revelations in the Senate report and other evidence that has come to light. An independent prosecutor like Patrick Fitzgerald would not need a lot of time to establish the facts.

Our country's values and the immorality of torture are important considerations. And the law, of course, is also key-or should be. Seldom have we seen it more cynically twisted and abused. But here is something else that must be thrust into public consciousness-the reality that, TV hero Jack Bauer's mythical exploits aside, torture never can be counted upon to yield reliable information.

THAT is the quintessential "no brainer." For, as the head of U.S. Army intelligence, Lt. Gen. John Kimmons, asserted on September 6, 2006: "No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that."

Stop Torture Now

Let us have no backsliding. Barack Obama must order an abrupt halt to torture, as he has promised-and preferably on January 20, right after he is sworn in as president. A timely report from an independent prosecutor would surely be helpful in buttressing and justifying that order.

Before the Senate Armed Services Committee's released a summary of its report on Dec. 11, and before Cheney threw down the gauntlet four days later, what seemed to make the most sense was the more gradual approach proposed by the insightful lawyer/writer, Scott Horton (see December issue of Harper's). Horton calls for the appointment of a commission peopled by men and women of unimpeachable integrity, in order to "provide a comprehensive narrative, setting out in detail how U.S. torture policy came to be formed and identifying the key actors and the decisions they made."

An excellent approach. And this, of course, is where the penal factors and deterrence would come very much to the fore.

It is important to point out that the independent prosecutor and the commission approaches are in no way mutually exclusive. If both can be done expeditiously, both should be approved. What Horton may not have anticipated is that, in releasing the shatteringly candid results of their Senate committee's two-year investigation, Senators Carl Levin and John McCain have named names, jump-starting-and hopefully shortening-deeper investigation.

It may be a hopeful sign of the times that on Dec. 18, even the editors of the New York Times lifted their heads out of the sand long enough to endorse the importance of doing what is necessary to deter crimes like torture:

"Unless the nation and its leaders know precisely what went wrong in the last seven years, it will be impossible to fix it and make sure those terrible mistakes are not repeated."