Weighing the torturers' defense

Any ambiguity about the significance of the newly declassified memos on torture is due only to the moral incapacity of the subservient media—these documents are incontrovertible evidence of conspiracy to commit heinous crimes. It is also a clear indication of the political corruption of our judicial system, and the crippling of constitutional restraints on executive power, that

Dick Cheney is defending his actions on Fox News rather than in a courtroom.

That being the case, it seems likely that this trial-by-punditry is the closest Mr. Cheney and his co-defendants will ever come to answering for their crimes (at least in this country), and as we the people are being appealed to, however cynically, to judge the case, we should be diligent in doing so. So I have three points for us all to consider that I haven’t heard made elsewhere. The first is that Cheney is not contesting his guilt of the crime. Rather, he is basing his argument on the so-called “necessity defense.” Defendants in trials involving crimes of nonviolent civil disobedience have used this tactic many times over the years, not disputing that crimes were committed, but that they were necessary actions to prevent far worse crimes. To my knowledge, no judge, at least at the federal level, has acquitted on the basis of this defense. Most often, evidence of the crimes--nuclear holocaust, genocide, etc. that protesters tried to prevent, was disallowed in the courtroom. Are we, then, to establish a legal precedent for a principle of necessity in the commission of war crimes and torture that does not apply in cases of trespass and destruction of property? The second point is that when Cheney and the other torturer masterminds were in power they sought to suppress evidence of their crimes, saying that it would threaten national security to reveal information about their techniques to those who might someday be tortured. It seemed a feeble and self-serving argument at the time. How curious it is that the same people are now crying out for the declassification of evidence obtained through those techniques, to build the case for their necessity defense. Never mind that common sense tells us that intelligence about the working of terrorist organizations, their members and methods, is of far more tactical importance to the anti-terrorist campaign, and has a far more legitimate claim to classification, than information about how it was extracted. It is curious to see so-called “hardliners” demanding that the wall of secrecy they erected be heedlessly dismantled in the hope of bringing exculpatory details to light. Finally, the torture apologists decry the President’s action in declassifying this information on the grounds that this helps terrorists resist torture. If the tortured know the limits beyond which the torturers will not go, they say, they are better able to maintain their psychological resistance to torture, and conceal information that could save lives. Leaving aside the question of the efficacy of torture as an interrogation technique, which, though highly pertinent, others are more qualified to address, I am prepared to concede that this argument makes sense. However, it only underscores the fundamental illegality of what Cheney, Tennant, and their lawyers conspired to do. The limits of humane treatment of prisoners under interrogation are not for CIA operatives, or the CIA director, or the Vice President of the United States, or the Office of Special Counsel, to decide. They are established by international humanitarian conventions, to which the United States is signatory, and further codified in United States statute and a massive body of precedent. The argument that the freedom to exceed those limits was expedient for the torturers in extracting information is no doubt factually true. It is also a naked admission of guilt.