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 March 28, 2014, 12:32 pm

Scott Horton Debates John Rizzo on Democracy Now!

On CIA secrecy, torture, and war-making powers

No Comment November 4, 2013, 5:17 pm

The Torture Doctors

An expert panel concludes that the Pentagon and the CIA ordered physicians to violate the Hippocratic Oath

No Comment August 12, 2013, 7:55 am

Obama’s Snowden Dilemma

How will the Obama Administration handle Edward Snowden’s case in the long term?

Get access to 164 years of
Harper’s for only $34.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

May 2014

50,000 Life Coaches Can’t Be Wrong

= Subscribers only.
Sign in here.
Subscribe here.

The Quinoa Quarrel

= Subscribers only.
Sign in here.
Subscribe here.

You Had to Be There

= Subscribers only.
Sign in here.
Subscribe here.

A Study in Sherlock

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
“In Thunupa’s footsteps grew a miraculous plant that could withstand drought, cold, and even salt, and still produce a nutritious grain.”
Photograph by Lisa M. Hamilton
Article
A Study in Sherlock·

= Subscribers only.
Sign in here.
Subscribe here.

“It is central to the pleasure of the Sherlock Holmes stories that they invite play, and that they were never meant to be taken seriously.”
Illustration by Frederic Dorr Steele
Post
My Top 5 Metal Albums and Their Poetic Counterparts·

= Subscribers only.
Sign in here.
Subscribe here.

“1. Death, The Sound of Perseverance (Nuclear Blast, 1998)”
Photograph (detail) by Peter Beste
Article
Found Money·

= Subscribers only.
Sign in here.
Subscribe here.

“I have spent my entire adult existence in a recession. Like most people I talk to, I assume the forces that control the market are at best random and at worst rigged. The auction shows only confirm that suspicion.”
Illustration by Steven Dana
Post
The School of Permanent Revolución·

= Subscribers only.
Sign in here.
Subscribe here.

“The University of Venezuela has provided a consistent counterweight to governmental authority, but it has also reliably produced the elite of whatever group replaced the status quo.”
Photograph © Daniel Lansberg-Rodríguez

Amount of trash left in New York City’s Central Park by people attending Earth Day festivities, in tons:

100

High ocean acidity from rising sea temperatures was causing the ears of baby damselfish to develop improperly; without ears, baby damselfish cannot hear (and thus locate) the reefs where they are meant to grow up.

Colombian author and Nobel Laureate Gabriel García Márquez died at age 87. “You’d be at a bordello,” said the journalist Francisco Goldman, “and the woman would have one book by her bed and it would be Gabo’s.”

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

HARPER’S FINEST