More on War Crimes

Phil of Plumb Bob Blog thoughtfully responded to my last war crimes post. His comments are emboldened My responses to his critique are interspersed in his text.

From Phil (Plumb bob Blog):

Hi, Joe, and welcome to Plumb Bob Blog.

Thanks.

First of all, please don’t worry about whether or not I was offended by being told my priorities were askew. I’m a member of the human race, just like you. Moral-infractions-R-us. Like nearly everybody, I’m a lot more likely to get upset about a charge like that when I’m convinced, at some level, that it’s at least partly true. Consequently, anybody who takes on themselves the role of prophet for another man’s decisions has to be ready for some kickback.

That’s very mature of you. But I did want to be clear.

Fortunately, I’m pretty confident that you’re wrong on this one. Truth is, I wasn’t paying very close attention to the news cycle this week, and didn’t even catch Cheney’s remarks until several days after he made them. I wouldn’t have reacted, though, because I know that the handful of incidents we’re talking about took place in 2003 and not thereafter, that the leading politicians making the most noise about it were privy to the decisions at the time (more than 30 consultations with the CIA) and raised not a single word of objection, and thus conclude that most of the noise about “torture” is pure, political theater designed to inflame the credulous and gain partisan advantage. I didn’t even know his involvement in the discussions was in dispute; I had long since taken it as granted that he was.

Lots to respond to Phil. First, you seem to think it important that there were only a “handful of incidents” that “took place in 2003,” and the leading politicians now complaining about the program knew about it and affirmed it. Assuming that all these claims are true (which I don’t - we only know what has been publicly acknowledged so far), how is any of this relevant? There is no statute of limitations on war crimes, so the “when” is irrelevant. The fact that a war crime was committed only a “handful of times” is also irrelevant. If other politicians played a role in authorizing waterboarding, they too are guilty of war crimes and should be prosecuted. If they are hypocrites for denouncing policies that they tacitly (or expressly) supported, how is that exculpatory regarding the authorization of torture?

You also dismiss the outrage over Cheney’s admissions as “political theater” designed to “gain partisan advantage.” Of course it is political theater designed to gain partisan advantage, but that’s exactly as it should be. You fail to understand the genius of our political system. Our system bestows partisan advantage when one party exposes corruption and/or illegality on the part of the other party. This practically guarantees that misbehavior in government, or by politicians personally, will be exposed. That is an unmistakably good thing!

Our electorate also tends to punish perceived overreach (think back to the Clinton impeachment and Republican electoral losses). This motivates partisans to level their charges responsibly and to get their facts straight.

Frankly, your dismissive remarks about “political theater” and “partisan advantage” are telling. We all benefit when partisans expose illegality for political advantage. Dismissing criticism as “partisan” is a venerable strategy of those who want to change the subject.

Most importantly, you suggest that there was no opposition to the administration’s torture policies. There you’re dead wrong. In her book “The Dark Side,”Jane Mayer meticulously documented the opposition of many figures within the administration. There were lots of voices within the administration that attempted to stop the torture program (which went far beyond waterboarding). I’ll leave it to you to read the book.

Besides, your description of what I was concerned about regarding Obama is off, as I explained in my comments on your blog (for those of you who are interested in the discussion, here’s the link.) My concern is about the declining virtue of the culture, and about a gradually-building, decades-long, culture-wide, habitual choice to call good “evil” and evil “good,” not just the President-elect’s treatment of his associates. I can’t imagine a Christian regarding this as a small matter, regardless of what you think of waterboarding.

I’m not convinced that your criticisms of Obama are legitimate. But if I thought they were legitimate, I would not consider it a small matter. I also agree that calling evil "good" and good "evil" would have a corrupting effect on any culture. However, I could never think that pedestrian character flaws were as important as an admission by our government that it had intentionally tortured U.S. detainees.

Now, concerning war and evil, you say I fail to notice several possible meanings of the word “evil.” This is not correct. Not only do I not fail to distinguish between different meanings of “evil” (the horror of war vs. inner moral depravity,) that difference is the central point of my essay. Perhaps you missed it because I devoted only two sentences to the “depravity” side of the equation.

Sometimes hatred, envy, rage, or a desire for revenge motivate a person to carry out plans to make another person hurt. That’s evil. Sometimes more complex emotional distortions make a person enjoy the pain of others, and they cause pain to entertain themselves. That’s also evil. This sort of evil almost always warrants punishment (although when it shows up on the battlefield it’s sometimes useful. That’s a different discussion.) As I said in the essay, if I thought the Vice President was motivated by something like this, I’d want to see him punished. Here, I was drawing precisely the moral distinction you claim I don’t think is possible.

I did not miss your distinction between inner moral depravity and the horrors of war. I thought it irrelevant to the question of Cheney’s criminality, which concerns the character of Cheney’s actions rather than his motives. But you’re correct in thinking that your distinction deserves a response, so here goes.

Moral analysis distinguishes between acts and motives. No one disputes that a person can do morally good things with bad motives, or do bad things with good motives. Ordinarily, we focus on motive when we evaluate the moral status of a person’s character. If you know that I visit my grandmother in her nursing home because I want to encourage her and bring her cheer, you think of me as a good person. If you subsequently discover that I’m after her money, you’ll think less well of me as a person. In both cases my action is the same, but my motive determines the state of my character.

To the contrary, we focus on what a person actually did when we evaluate the moral status of his actions. We operate under the premise that certain acts are morally wrong, unless otherwise justified, and that a person that commits such acts without sufficient justification acts wrongly. (Motives are not justifications. Justifications are circumstantial factors that override a prohibition).

Criminally illegal acts divide into two types: Malum in se and malum prohibitum. Malum prohibitum refers to acts that are illegal by regulation, but not immoral by nature. It is not immoral to sleep in a public park, but doing so is frequently prohibited by law. Malum in se refers to acts that are prohibited because they are intrinsically immoral. Prohibitions against torture are examples of very serious malum in se illegality, given that torture is both morally barbaric and, for that reason, has been made a felony punishable by decades of imprisonment for each offense.

For the most part, the law is uninterested in a person’s motives, except in so far as motive provides evidentiary support for guilt or mitigates culpability for the purpose of sentencing. The law is mainly concerned with what a person did and whether the person did what they did with the requisite level of intent; e.g., did they do what they did knowingly, or purposely, or recklessly, etc., according to the standard specified in the applicable criminal statute.

Your defense of Cheney focuses entirely on his motives. I cannot know Cheney’s motives, but concede that you have good reasons to think he was not sadistically motivated. In fact, he probably had good intentions. This means that I and others calling for his prosecution have no grounds for thinking that Cheney is a bad person, at least with regards to this issue. Fair enough.

What you fail to realize is that the laws of war anticipate that leaders may have good intentions when they order their subordinates to perform prohibited acts. In fact, leaders frequently have good intentions when they commit war crimes. That is why the torture laws contain no “good motive” exception. We decided (democratically) that torture is such an abhorrent act that we simply will not allow it, and we will imprison anyone who is convicted of performing or ordering torture, regardless of their motives.

I’m not claiming that Cheney is an intrinsically evil man. I am claiming that he, by his own admission, intentionally and knowingly violated multiple felony laws prohibiting torture. For this he should be prosecuted, irrespective of his motives, just like everyone else. That’s what the rule of law requires.

The point of the essay is that it’s perfectly clear — beyond dispute, in fact — that Vice President Cheney was not motivated by this sort of misguided passion. On the contrary, there was a sober discussion among the involved players to determine which procedures were legal and which were not, and which were effective and which were not. Not only were they motivated by proper concern for the safety of the nation, they were clearly intending to remain within the rule of law, both national and international. There exists not the slightest hint of the sort of depravity that we call “evil.” That the acts themselves caused immense fright to the two prisoners who experienced them is precisely the sort of evil I described in my essay — an unfortunate requirement of war, and no different morally from ordering a soldier to run his adversary through with a bayonet.

In the passage above, you continue your defense of Cheney based on his motives. But you also assert as fact highly debatable propositions. For example, I’m not at all convinced that “there was a sober discussion among the involved players to determine which procedures were legal and which were not, and which were effective and which were not.” Nor am I convinced that Bush administration officials were clearly intending to remain within the rule of law. In fact, I am convinced of exactly the opposite.

There is strong evidence that the administration wanted to engage in practices that they knew were illegal, or thought might be illegal (they certainly knew that waterboarding was illegal, given that we’d prosecuted Japanese commanders who waterboarded our soldiers). There is also evidence that Bush administration officials sought to create legal cover for their torture regime (which, as I said before, goes well beyond waterboarding), by tasking a secret legal cabal to draft secret memoranda redefining “torture” so as to allow previously prohibited techniques. These officials also ignored strong internal criticism from senior military and state department officials who warned that their techniques were both illegal and ineffective (See Jane Mayer’s “The Dark Side” for a list of these officials).

More importantly, the claim that Bush administration officials employed their questionable techniques in good faith, based on a reasonable interpretation of the law as supplied to them by their legal counsel, is a question of fact to be determined first by a prosecutor (who must decide if there is an evidentiary basis for charges) and ultimately by a jury. The claim that they acted in good faith cannot preclude an investigation of apparent criminal activity, because the plausibility of that defense is what needs to be investigated. If such a “good faith” claim were able to preclude an investigation into lawbreaking, a president could have the Office of Legal Counsel draft a memorandum telling her that she could do anything she wanted, and then cite to the memo to thwart any criminal investigation as to whether she committed apparently criminal acts in good faith. But that would be absurd.

The failure to distinguish properly is yours. You fail to distinguish between stepping over legal boundaries and stepping over moral ones. You seem to think that as soon as you see the slightest possibility that a legal boundary has been crossed, you are immediately justified in lumping the offender together, morally, with Josef Stalin and Richard Speck. Legal boundaries and moral boundaries are not the same.

Not at all. legal boundaries and moral boundaries sometimes coincide, as they do here. Torture is and was legally prohibited because it is, and always was, barbaric. Cheney admitted authorizing waterboarding, which has been a recognized form of torture since the Spanish Inquisition. I'm not concerned, as you say, over the “slightest possibility that a legal boundary has been crossed.” I'm confronting a blunt and unapologetic admission by our Vice President that he and other Bush administration officials intentionally violated very serious felony statutes. Cheney’s no Joseph Stalin or Richard Speck, but he is, by his own admission, a criminal.

Moreover, you seem to think that legal boundaries are hard, solid, and clearly marked, and never ambiguous or open to interpretation. Legal boundaries are seldom so clearly defined.

My readers here may not know you’re an attorney, but I do, and I find these to be astounding errors for a lawyer to make. You’re not even that far removed from law school; you have to know that the law is a fluid thing, that it’s not fixed, that it’s wildly subject to interpretation, and that the decision whether it’s been crossed or not can turn on tiny distinctions in verbiage, disputes in interpretation, conflicting applications of precedent, or sometimes on the philosophy of the judge.

To this I would reply, sometimes, but not in this case. It is true that the law is murky in many areas, and there are often reasonable grounds for dispute about what the law requires or prohibits. But torture is not one of those areas. Prior to the revelation that we’d waterboarded detainees in our war on terror, no one thought or argued that such conduct was legal. Absolutely no one.

Not even you are confident that its legal, since you go to some length to emphasize that we only waterboarded a few really bad guys, a long time ago, and the practice has since been discontinued. If the practice were legal, or even arguably legal, why hide it? Why hide the legal memorandum allegedly justifying it? Why discontinue the practice? Why does it count favorably for the Administration that we've done so?

Consequently, it should be obvious to you that Vice President Cheney’s acts, which were clearly taken soberly and with the intent of remaining within the law, do not come within light years of the sort of depravity with which you’re charging him. You might be able to win a moot court discussion on the definition of “torture,” but I can’t imagine how you can be so exercised over matters of debatable legal interpretation, thinking that your own interpretation of a law that your opponent disputes justifies you in calling him a moral monster. I mean, good grief, Lend-Lease wasn’t entirely kosher, either, and the bombers and ships that we sent were used to pulverize German sailors with whom we were not at war; was Roosevelt a monster, too?

If you had some evidence that Vice President Cheney was motivated by the sort of inner distortion that leads serial murderers to torture their victims and enjoy it, then I could see your moral agitation, and I would be joining it. From where I sit, though, the Bush administration was scrupulous in knowing where the boundaries were, and in pushing right up to them but going no farther. I don’t think we can ask for more from our leaders, and I think the attempt to prosecute them because you disagree with the Attorney General’s legal interpretation, let alone the attempt to paint them as having committed serious war crimes, corrodes the public discourse horribly, and endangers the peace.

I’ve answered most of these points previously, so I’m going to let most of these remarks pass without comment. With regards to the Attorney General’s legal interpretation (Ashcroft indeed signed off on the “torture memo'), its not just that I disagree with his legal opinion. EVERYONE DISAGREES WITH HIS LEGAL OPINION! That’s what the political dilemma is all about. Everyone knows that waterboarding is torture and violates multiple felony statutes. Cheney is defiantly daring the political establishment to do anything about it (or perhaps attempting to force Bush to preemptively pardon everyone involved by admitting that they authorized torture from the top).

Can you name anyone trained in the law who is willing to publicly defend Yoo’s legal reasoning, reasoning which concluded that torture necessarily requires pain of an intensity and duration similar to that approaching death or organ failure? Of course not. The Bush administration officials have never attempted to defend Yoo’s reasoning. They simply assert that they relied on it in good faith, and should not, therefore, be prosecuted.

That's, with all due respect, baloney.

Anyway, best wishes Phil

Joe H.