I haven’t read all the newly released torture memos. It takes an effort of will to get through them. And I haven’t read the statutory or case law that the authors purport to cite. But I can smell intellectual and lawyerly dishonesty when it gives off this much stench.
The stench is particularly offensive if you happen to be a lawyer, and therefore familiar with the legalistic conventions that are being perverted in these memos. In measured, lawyerly prose, the authors proceed to legalize the patently illegal, and eviscerate the constitution.
It’s not hard to arrive at a predetermined conclusion if you get to define both the facts and the law. From the definition of “high value detainee” to the CIA assurances that each proposed technique will be applied just short of torture, it is pure fiction, but fiction in the service of a lower cause. If we accept certain factual premises we can abolish any possibility that any given action is torture. If, for instance, we presume that a psychologist will, or can, ascertain just how much abuse a person can take without sustaining the degree of harm necessary to qualify the act as torture, then we can safely conclude that we are not engaging in torture, so long as we all promise to adhere to the psychologist’s decrees. We know, of course, that any psychologist, or any human being, who would participate in such an exercise is by definition a sadist, but let that go. Nor does it matter that the scientific evidence or legal basis upon which the conclusions rest is a deliberate distortion of that science or law. So long as we can all pretend we are acting in good faith we are home safe. And indeed, it’s turned out that way. These memos were kept secret not because their release would endanger national security, but because their reasoning cannot withstand the light of day, something both their authors and recipients knew all along.
Real legal memos are written by an interested party trying to convince a disinterested party. That’s why they can’t stray too far from the facts, or go too far in distorting the law. If one departs too much from reality one loses the case.
These people were judges in their own cause, so they had only to convince themselves, or pretend to be convinced. And if, as has happened, the memos became public, the recipients could always earnestly insist that they acted in good faith reliance on a legal opinion they in fact knew was a fraud, and the authors could piously insist that they honestly believed that their analysis was correct, and the very top criminals could always get a platform at the Wall Street Journal from which to attack those that revealed their crimes.
So it goes. And we must wonder. Which of the folks who engaged in this conspiracy will be the Dick Cheney or Donald Rumsfeld of the next Republican Administration, intent on “restoring” absolute power to the executive, just as Dick and Don did in the Bush Administration? To which Ring of Hell will he (it’s usually a he) drag this country when he gets power commensurate with what they got in the past eight? Wouldn’t our chances of avoiding such an one be enhanced if that person or person served hard time?
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