Torture and the Law


A quick comment on this from Daphne Eviatar:

As I pointed out yesterday, whether policymakers had strong, convincing evidence that these techniques were actually going to deter the next terrorist attack is critical to the legal analyses that justified them.

It’s a little hard to tell precisely what she means.  If she’s just making a factual statement about the nature of the OLC memos that “justified” torture, she’s correct.  I think that is what she means.

However, her post could also be read to mean that the question of whether or not policymakers had strong, convincing evidence that these techniques worked is crucial to a fair and accurate evaluation of their legality.  That reading would be clearly wrong.

These techniques were — and are — illegal.  Illegal by statute, and illegal by treaty (which has the same legal standing as a statute).  Whether or not they work is irrelevant to the legal analysis.  The statutes and treaties are not conditioned on torture’s efficacy.  They flatly forbid it.

If the relevant parties in the executive branch had tried these techniques, found that they produced intelligence vital to saving large numbers of American lives, and wanted to routinize their use, there was a process available to them to make that legal.  You go to congress and ask them to pass the necessary legislation and withdraw from the relevant treaties.

That’s how you get from illegal to legal in this country: you follow the constitutional procedures to get the law changed.  Period.

If you feel you shouldn’t have to do that because, by gum, you’re the king president, then you bring a case to the courts, make your constitutional argument, and get a ruling.

That’s the fundamental problem with the Bush administration and those who continue defending it: their fantasy that the executive can change the law at will on nothing but his own say-so.  Their attachment to that fantasy is precisely why they didn’t, in fact, go to congress (or the courts) on these issues.  They would have had no difficulty whatsoever getting anything they wanted from congress, from 2000-2006 (and later, in all likelihood; recall that telecom immunity was passed in 2008).  Republicans in congress are still tripping over each other to see who can be the first and loudest to support torture, indefinite detention, and warrantless domestic spying.  If Pres. Bush had asked on a Tuesday to have the torture laws changed, he’d have had the legislation on his desk on Thursday.

They didn’t want to ask.  They didn’t want it voted on.  They didn’t want it debated.  They wanted to make the laws by fiat: it is so because I say it is so.  It’s every 6-year-old’s dream.  Every 16-year-old’s dream.  Grown-ups are supposed to know better.

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