No Comment — December 11, 2008, 11:04 am

The Good-Faith Torturers

Attorney General Mukasey claims that President Bush doesn’t need to worry about pardoning members of his torture team because they face no serious criminal exposure. His latest statement came as my interview with Professor O’Connell was already in production. So I decided to put the question to her to get a real law scholar’s take on the question.

I asked:

Attorney General Mukasey stated that there was “absolutely no evidence” that anyone involved in developing the Bush Administration’s torture policies “did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.” His statement assumes that it is a defense to the crime of torture under the War Crimes Act and the Anti-Torture Act, as well as under international law that they implement, for a person to believe he is acting in the interests of national security and in the belief that torturing is lawful. Is Mukasey right about this?

O’Connell responded:

No. The prohibition on torture is absolute in all circumstances—it is a jus cogens or peremptory norm of international law. There are no exceptions to the prohibition. This is clear in the Geneva Conventions, the Convention Against Torture, and the International Civil and Political Rights Covenant. The United States is a party to all three. It is true that Israel’s Supreme Court in a very powerful decision upholding the prohibition on torture and cruel treatment did suggest that an individual interrogator might be able to mount a defense of necessity, but this part of the decision is against the clear weight of authority. It clashes with the fundamental reason for drafting the 1984 Convention Against Torture (CAT)–at that time no one doubted that torture as sport or cruelty was prohibited. The CAT was intended to clear away any last doubts that governments had the right to use torture or cruel measures to seek information for national security or to combat crime.

Even without the CAT, there is no necessity defense for coercive interrogation. Coercive methods are known to be unreliable–so how can they be “necessary”? Plus, the only interrogator who can have the intent to use coercion because it is “necessary” would have to be trained in the techniques. Otherwise, he cannot reasonably believe he will get better results than with the non-coercive methods in which we train our interrogators. Mukasey may want to preempt investigations or prosecutions by arguing that government officials received legal advice and so long as they acted in good faith on the basis of that advice, they will have a defense. He may be trying to send the message that the lawyers acted in good faith, too, in providing the advice. That’s a judgment that could only be made on the basis of all the facts and circumstances surrounding the opinions, but they remain clouded in secrecy, and Mukasey does not claim to have studied these facts and circumstances–he merely says he is “not aware” of facts that would suggest anything else. But Congressmen Conyers and Nadler immediately cited to him plenty of facts and circumstances that suggest otherwise, of which Mukasey is certainly aware. All of this makes Mukasey’s rush to a legally unsupportable judgment painfully obvious.

As I told one former CIA lawyer who asked me about the “good faith” defense in these cases, the quality of the memos is so poor, the process of producing them so at odds with government standards, and the general knowledge is so high that torture and cruelty are prohibited, that it difficult to see how good faith could possibly provide a defense.

Share
Single Page

More from Scott Horton:

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

No Comment March 28, 2014, 12:32 pm

Scott Horton Debates John Rizzo on Democracy Now!

On CIA secrecy, torture, and war-making powers

Get access to 164 years of
Harper’s for only $39.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2014

The End of Retirement

= Subscribers only.
Sign in here.
Subscribe here.

The Octopus and Its Grandchildren

= Subscribers only.
Sign in here.
Subscribe here.

Francis and the Nuns

= Subscribers only.
Sign in here.
Subscribe here.

Return of the Strongman

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
“Evidence of a chill was plain. People in Hailey spoke to me about Bergdahl in low voices, as if about a death.”
Fox & Friends, July 6, 2014
Article
The Seductive Catastrophe·

= Subscribers only.
Sign in here.
Subscribe here.

“The world’s leaders were moved by a populace fused into a forward phalanx, were shaken by a tidal wave of militancy jubilantly united.”
Photograph courtesy Mary Evans Picture Library
Post
The Glitch in the Video-Game Graveyard·

= Subscribers only.
Sign in here.
Subscribe here.

“From the nerd squabbles of Internet discussion threads rose an urban legend that culminated in a film that hinges on digging through my town’s trash.”
Illustration (detail) by Timothy Taranto
Article
What the Camera Saw·

= Subscribers only.
Sign in here.
Subscribe here.

“They shot him behind the left ear, and he fell.”
Article
Bounty·

= Subscribers only.
Sign in here.
Subscribe here.

“If I’d been one of the unprepared, I’d be desperate, too.”
Illustration (detail) by Simon Pemberton

Rolls of toilet paper Chicago’s city government has produced this year from recycled City Hall wastepaper:

19,000

Two thirds of U.S. teenagers experience uncontrollable rage.

Russia lost, then regained, contact with a satellite carrying five geckos sent to copulate in zero gravity.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

In Praise of Idleness

By

I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today