Wednesday, July 29, 2009

Our View - Torture, by any other name, is just as illegal

(Iowa City Press-Citizen "Our View," April 28, 2009)

The next time we hear a president of the United States say, "We do not torture," we'd love to be able to believe him. We'd love to able to trust that he is not playing a rhetorical game and trying to cover up interrogation techniques that, in any other time and situation, would be labeled as torture.

After all, from the vantage point of seven years, it's hard not to be shocked and dismayed when reading through some recently released 2002 memos that provided the Bush administration with the legal support it needed to allow for waterboarding and other brutal interrogation techniques.

Because much of the information already had been made public, the memos themselves only reinforce what we long knew: That in the wake of 9/11, the Bush administration had a bad case of what University of Iowa law professor Tung Yin called "Jack Bauer Syndrome."

The Obama administration's flip-flopping since the release of the memos, however, suggests a new and equally frightening phase of that syndrome.

Last year Yin published an article, "Jack Bauer Syndrome: Hollywood's Depiction of National Security Law," in which he documented how many federal officials had referenced the TV show "24" -- a list that included then Homeland Security Secretary Michael Chertoff, former CIA Director James Woolsey and Supreme Court Justice Antonin Scalia. Many officials defended the actions of the show's main character, Jack Bauer, an on-again/off-again federal agent who has tortured suspects to gain information deemed necessary for national security.

On the other side, Yin noted how the dean of West Point had contacted the producers of "24" pleading with them to stop depicting torture as a successful interrogation technique for fear that too many soldiers and officers in the field would think that it works -- especially if they've been given the legal green light through memos like the one recently released.

Before the memos were released, we already knew the problem with "Jack Bauer Syndrome" is that the fictional Jack Bauer never makes a mistake. He never tortures the innocent -- unless he needs to do so to get the bad guys to comply. In real life, however, government-approved torturers won't have the luxury of being right all the time, and any information provided under duress -- even from acknowledged bad guys -- would be highly untrustworthy in the short-term and most likely inadmissible as evidence later on.

But we now know a later consequence of "Jack Bauer Syndrome": Torture, when done under the proper legal cover, is all but nonprosecutable as long there is any chance that it provided information to save lives. President Obama isn't likely to prosecute the actual interrogators because they were just following orders (which is always a dubious defense) and because he'll need CIA support in the future. And Obama, rather than outline a clear course of action, has said he'll leave it up to the Justice Department to decide whether to go after the lawyers who wrote the memos: Jay S. Bybee, Steven G. Bradbury and John C. Yoo.

In discussing the memos Thursday, Yin said prosecutors probably won't be willing to prosecute unless they have proof that Bybee, Bradbury and Yoo were providing bad faith legal advice rather than expressing their actual opinions. And because the memos make legal arguments very similar to those found in at least Yoo's earlier academic writing, it would seem hard to make a case that Yoo et al were being sinisterly Machiavellian as opposed to just being staunchly ideological.

And even if prosecutors were to move forward with charges, it would all be for naught if one juror decided the information provided was worth the price to those interrogated, to those doing the interrogating and to the nation's moral authority.

"Jack Bauer Syndrome" seems to be one syndrome in which prevention is the only cure.

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