On Prosecuting Torturers (And The Like)

Given the recent headlines regarding the OPR Report on Yoo & Bybee, I figured I’d run the risk of repetition and whip some of my previous comments into an actual post regarding whether we should prosecute those who tortured.[1] If you’ve no desire for exposure to repetition, I’ll save you the trouble by presenting my conclusion up front:  I don’t think prosecutions are a good idea.

It’s not that I don’t think the potential targets of such prosecutions are guilty; though I’ve not looked into the question in detail, my SWAG is that yes, interrogators & the like did indeed [insert favored torture euphemism] detainees, prisoners, etc.  Nor would I be surprised if explicit or implicit approval of such behavior extended up the chains of command.  Well, torture is illegal, isn’t it?  If we truly believe in the rule of law, why shouldn’t we prosecute the torturers & their accomplices?

The rule of law is important, but it is not an end in itself.  It is a means to several ends, among them being the maintenance of social peace.  Strictly speaking, the “upholding the rule of law” would have required prosecuting every Confederate veteran for treason; this was not done, for the sake of social peace.  Strictly speaking, “upholding the rule of law” would require rounding up & deporting every single illegal alien; arguably, we’d be better off not doing that, again, for the sake of social peace.[2] As Gregory Rodriguez noted (albeit in a different context):

It is true that the failure to punish lawbreakers challenges the rule of law and our collective sense of fair play. When we abrogate that rule, we threaten to undermine the social contract. And yet the very idea of pardons and amnesties presupposes that law has its limits and that, on occasion, it is trumped by other values – social cohesion, for one, and a larger view of justice, for another. If the hunger for judgment and punishment is driven – and I believe it is – by a sense of resentment toward lawbreakers, then acts of political forgiveness represent the lifting of that resentment.

As a means to keep the peace, in 1795 President Washington pardoned the leaders of a rebellion against the whiskey tax, a controversial law that was later repealed. In order to “bind up our nation’s wounds” during and after the Civil War, Abraham Lincoln and Andrew Johnson issued more than 200,000 presidential pardons to Union deserters and Confederate soldiers. Indeed, Johnson’s 1868 Christmas amnesty proclamation granted unconditional pardons to all participants in the war.

In 1947, President Truman issued pardons to 1,500 World War II draft resisters. A few years later, he granted amnesty to 9,000 deserters from the Korean War. A generation later, in 1974, Ford offered a conditional amnesty to men who evaded the draft during the Vietnam War. In 1977, in one of his first acts as president, Jimmy Carter granted draft evaders a “full, complete and unconditional pardon.” His act was meant to put the divisions and antagonisms of the war behind us.

If there was a near-universal domestic consensus that the Bush et al committed/condoned criminal actions worthy of prosecution, then I’d be far less leery of impeachment.  As it is, I see no such consensus.  When I look at polls[3] regarding torture (and the prosecution thereof), what’s striking to me isn’t the (occasional, sometimes-slim) majorities in that oppose torture & favor prosecutions, but rather the substantial minorities that support torture and oppose prosecution.

Having read about Jacksonians a while back, this frankly doesn’t surprise me.  Nevertheless, given the existence of such division amongst Americans, I fear that prosecutions of Bush et al, particularly if conducted by the other party, would be viewed by a non-trivial portion of the public not as “upholding the rule of law”, but rather the pursuit of a partisan political vendetta.  From which the take-home message would not be “Don’t do illegal stuff”, or even “Don’t get caught”, but rather, “If you hold political office, never let go of power, lest your enemies hound you ’till you’re in chains”.  This would not be a healthy development for the Republic.

I would say more along these lines, but John Hawkins already said it a while back:

Trying to prosecute key Bush Administration officials on what are viewed as trumped up, politically based charges would create a firestorm of partisanship and outright hatred that would surpass anything in American history since the Civil War. Members of a political party in the United States, whether it be Republican or Democrat, are simply not going to stand by idly with their hands in their pockets while their political views are criminalized.

At best, this would lead to tit-for-tat prosecutions. By that, I mean if Democrats throw George W. Bush in jail for ten years, Republicans will do their best to find an excuse to throw Barack Obama in jail for ten years — and don’t think it can’t happen. The American political system tends to be cyclical and so today the Democrats may be on top — but in four to eight years, when Obama leaves office, it’s entirely possible the GOP could be in charge of both Houses of Congress — and looking for an opportunity to get payback for Bush. Again, that is the best case scenario. The worst case scenario could mean blood in the streets, riots, and a breakdown of the “orderly transfer of power” that has always been a hallmark of American democracy.

One of the reasons that has never been an issue previously is precisely because the loss of power for an American politician doesn’t mean that he’s threatened with the loss of his life or liberty. If we throw the rule of law out the window and leaving office may mean a prison sentence or worse, those “orderly transfers of power” we have in this country are going to begin to break down — and politicians will use any means necessary to remain in charge. It’s understandable if that sounds farfetched since events of that sort haven’t happened on a widespread scale here since the Civil War, but there are many nations across the world where a change of leadership is a terrifying and violent ordeal for the populace. There’s very little to be said for potentially joining their ranks.

Ultimately, I’m more inclined to echo Matthew Yglesias’s opinion that, if we’re concerned about preventing torture in the future, we should be less concerned about prosecuting past torture than shrinking those aforementioned “substantial minorities” into the consistently-low-single-digit range.  Granted, on the one hand, it’s possible that torture prosecutions would present a “teachable moment” & further this goal.  OTOH, however, it’s also possible that they could indeed be seen as another data point on a trendline of using the criminal justice system to harass political opponents.[4] Does the risk of the latter outweigh the potential benefit of the former?  I’m not sure, but my gut tells me no.[5]

Interesting aside:  Brad Wendel notes the relevance of the torture memos debate to the question of legal (in)determinacy.  More on that rather dry & abstract question from Lawrence Solum here.


[1] Or “used enhanced interrogation techniques”.

[2] I fully recognize that there were/are other factors militating against prosecution in both of the cases.

[3] See, e.g., here, here, and here.

[4] And on the gripping hand, as Tyler Cowen points out, it’s possible that we might throw a torture trial, and the torturers might actually win.

[5] I wish I had more supporting evidence than a SWAG, but absent a handy-dandy alternate universe upon which I could run controlled socio-political experiments, it seems guesswork is all I’ve got to go on.  Alas.

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