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The Senate’s torture report reads like a hypothetical case study illustrating why torture should be illegal. There’s the tendency to use it where much less violent methods would do, the unreliability of the information obtained, the difficulty of controlling officially sanctioned torture, and, above all, the intrinsic moral horror of using these methods on people, especially innocent people.
But torture, under both domestic and international law, is illegal. And there is almost no one left willing to argue that worst activities described in the report don’t constitute torture. Even Cheney—who still resists describing the near drowning involved in waterboarding as torture—had trouble answering when asked if “rectal feeding” counts. Presumably, he would also struggle to reclassify mock burials, forcing people with broken hands or feet into stress positions, and inducing fatal hypothermia by chaining a partially naked detainee to a freezing floor. If these things aren’t torture, nothing is torture.
So, shouldn’t those responsible be prosecuted? The case for prosecution is on its face strong: there is a clear legal standard violated and strong policy reasons to enforce that standard, so that we don’t find ourselves reading another report like this one again soon. And yet major political and legal theorists argue that proceeding with prosecution would be not only difficult but also undemocratic—a violation of principle. Michael Walzer made this case when prosecution was first considered at the beginning of President Obama’s tenure and Eric Posner recently reiterated it in light of the Senate report.
The argument goes like this (I quote from Posner): “Obama’s best argument for letting matters rest is the principle against criminalizing politics. This is the idea that you don’t try to gain political advantage by prosecuting political opponents—as governments around the world do when authoritarian leaders seek to subvert democratic institutions.” So, you should prosecute a “Republican senator [who] takes bribes or murders his valet,” but not a member of the executive who “takes actions that he sincerely believes advance national security.” Prosecute for “private crimes,” committed as a private individual and for personal gain, don’t prosecute “political crimes,” committed in one’s capacity as an official and for public ends.
Why do so many legal theorists think prosecuting would be undemocratic?
There are at least two reasons to reject the argument that prosecution would be undemocratic. First, Posner’s argument tells us nothing about the prosecution of individual CIA agents. According to the report, there are clear instances of agents going well beyond what they were authorized to do and in ways that show a reckless disregard for the well being of their prisoners. Even if Posner were right that we should avoid prosecuting politicians who are sincerely motivated by the common good (he’s not), CIA agents are not politicians. Relatedly, Walzer suggests that there would be a violation of equality before the law if we prosecuted the agents and not the members of the government who authorized torture. Maybe so, but it would be no worse a violation of equality than failing to punish the agents for actions that would certainly see you or I in jail. And ultimately this bespeaks the fairness of punishing both the agents and the politicians involved.
Second, I agree that there is something undemocratic about politicians seeking to gain power not by winning elections, but by manipulating the criminal justice system to harass and incarcerate their opponents. But the distinction between trying to lock up your opponents for private crimes (like embezzling government funds) and trying to lock them up for political crimes doesn’t follow. The original principle concerns the motivations of the people doing the prosecuting/punishing. We need to make sure that politicians are not simply making a grab for power or trying to enact revenge on their ideological opponents: if they are, then we’ll end up with politics being conducted through the criminal justice system.
It is not about what kinds of action should be prosecuted or punished: A new executive could hound predecessors over their personal tax returns as much as their conduct in office. Similarly, the current executive might punish former officials for war crimes with extreme reluctance and only out of public pressure, not partisan goals. This is exactly what would be going on if Obama were to authorize prosecution in the cases at hand: given the administration’s clear reluctance to prosecute, it would not be plausible to interpret prosecution as an attempt to hound political opponents. Moreover, a trial would not be an easy means of hounding them: the defendants would, as Posner says, be represented by “the best lawyers in the country, who would flock to these high-profile cases and scrutinize the government investigation for errors.” There is every reason to think that they would receive a fair trial.
Finally, there is a familiar thought endorsed by many legal theorists that courts ought to show a lot of deference to the executive in the exercise of war powers. So, it might be complained, all such criminal investigations would interfere with the executive’s ability to use any available means to protect security during wartime. But this complaint just assumes that the executive should be left free to use torture, or to kill people, as it sees fit.
Democratic principles don’t prohibit prosecution, they tell favor of it: Prosecution should be a way of ensuring that the executive does not exercise power in ways that go well beyond what the people have authorized. If defenders of torture want it to be authorized, they can seek congressional approval and advocate for backing out of the U.N. Convention Against Torture. But they will have to make their case in light of the report and what allowing torture really looks like. And there is also an important reason to be cautious about emphasizing democracy as the main value here: the people getting tortured have no say in U.S. policy and so should be protected under international standards that constrain the use of force against foreigners.
Along with most commentators, I have been talking about our reasons to prohibit and prosecute torture as a general matter. But I think this leaves out an important piece of the moral context. Less discussed, though also relevant, is what the actions described in the report express to Muslims and people from Muslim countries about their status. Those uses of torture imply that these people’s bodies are worthy of the worst degradation, treatment that would be inconceivable for white Americans. When Dick Cheney insinuated that pretty much everyone who got tortured had it coming, even though the report explicitly identified some innocent victims, he implicitly said that they had already committed the crime of having the wrong face, the wrong religion, and/or the wrong country. When thinking about impact on the public good, this racism may, as many people have suggested, make torture counter-productive, by aiding the recruitment efforts of terrorists. But it also harms innocent Muslims and people from Muslim countries by undermining their ability to trust their own government or the dominant power in the world.
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