Since my first attempt to critique Clive Crook on torture seems to have ended rather badly, here’s a second go. NB that this post is not an obviation of the apology below for my initial misunderstanding and mischaracterization of his position. That stands – if I screwed up in reading him, I screwed up in reading him, and am perfectly prepared to take my lumps. It is, instead, a reflection of the fact that my perplexity has in part increased as he has sought to explain himself and his position further. I am quite confused about the logical connections that are supposed to pull key parts of his argument together. Now this confusion could be a reflection of my ‘remarkable incompetence’ as a reader, or alternatively of my ‘total lack of good faith.’ Or it could be a result of incoherencies either in Crook’s views themselves, or in his presentation of same. Because I simply don’t get the argument that he is making (and from the evidence of our comments section, at least some others are similarly confused). And I’ll try to present my understanding of it as non-snarkily as possible in the hope that if I don’t use words like ‘reprehensible,’ he won’t continue to suggest that I am an idiotic hack and a disgrace to the legacy of the blessed Isaiah Berlin, if indeed he bothers to reply at all.
As I understand Crook’s position – and I am open to correction here, it is as follows.
(1) That waterboarding is unequivocally torture, and should be criminalized. This was not clear to me in his initial op-ed – while he said that torture was ‘shameful’ and should be criminalized, I didn’t think that Crook thought it was torture. His exact words were:
But this already far from simple issue gets even more complicated when you turn from the question of justification to the law. Many just take it for granted that waterboarding is torture, and hence illegal. The convoluted legal defences in the memos are so false, in their view, that they compound the crime. The bizarre care the memos prescribe to guard against lasting physical harm to suspects, for instance, is dismissed as a sham that only makes the enterprise more disgusting. Not so fast. Common sense may tell you waterboarding is torture, but the law is less clear-cut.
This, together with his later suggestion that waterboarding differed in kind from flaying, finger-crushing and other things that journalists and YouTubers are reluctant to inflict upon themselves, led me to believe that Crook himself thought that the ‘common sense’ view was wrong. I am happy to accept his clarification that “Waterboarding is torture in the ordinary meaning of the word.”
(2) That the law is ambiguous over whether or not the officials who gave the green light to waterboarding can be prosecuted.
In the original piece:
It is worth noting that the methods in question were adopted from the training US soldiers undergo to resist interrogation. This underlines the fact that using these methods lowers the US to the level of its enemies. But it also suggests that distinctions may be made between waterboarding and, say, breaking on the rack. Unsurprisingly, US soldiers are not subjected to that technique as part of their training. Journalists and YouTube video-makers have undergone waterboarding, the better to pronounce it torture. None that I know of has volunteered to be flayed, or have his fingers crushed.
So far as moral and tactical justification goes, this can be set aside. Waterboarding is shameful, and one may leave it at that. To repeat, Mr Obama was right to forswear its use and that of other brutal measures. But the law does not set these points aside. If the lawyers who worked on the memos can show a court that they worked in good faith, under extreme pressure, to design methods that fell short of torture – in its legal, not commonsense, meaning – they would be innocent of knowingly shielding illegality. They have a strong case.
In Crook’s clarificatory blogpost:
Most of the non-abusive emails I have received about this rightly concentrate on (e). They say that domestic and international law on this is perfectly clear. They point out that the US has prosecuted foreigners and its own citizens for waterboarding in the past. A few have referred me to this much-cited paper by Evan Wallach, which I was familiar with before writing the column and which is well worth reading. The author also had a column in the Washington Post summarising his argument.
I acknowledge that I am not well qualified to judge this issue. I am not a lawyer, but I have wrestled with the law on it enough to know that it is far from simple and a matter of dispute among lawyers. As now seems to be mandatory on this and other issues, positions are stated with false certainty and with unyielding moral absolutism. It is necessary to read everything sceptically.
The earlier cases do not prove that waterboarding as practised during the Bush administration was illegal, only that waterboarding carried out in certain ways and under certain circumstances has been successfully prosecuted. The designers of the policy knew the law and manoeuvred—absurdly and offensively, perhaps, but they would not be the first lawyers to stoop to that—to stay within it. As for whether, regardless of domestic law, the international Convention Against Torture mandates prosecution, you have to understand the distinction between treaties that become the law of the land in and of themselves, and treaties that the US adopts, and in effect modifies, with a law of its own. The Convention Against Torture is of this second type. Arguably, therefore, relevant parts of the CAT are not enforceable in US courts.
Incidentally, there is further disagreement over whether the US government has discretion not to prosecute, even if it takes the view that a law has been broken. Some constitutional lawyers say it does not. The administration’s promise not to prosecute interrogators implies that it thinks either the law was not broken, or else that it does have discretion not to prosecute.
If prosecutions were brought, could one count on getting convictions? Because of the deliberate imprecision of current law, the defence has a case to make, and a jury, reminded of what was at stake in the aftermath of 9/11, might be inclined to listen to it sympathetically.
(3) Therefore we should not bring prosecutions. In the original article, his primary concern is that it would hurt America’s reputation abroad, and his second, wider concern is that it would hurt bipartisanship. I quote:
What would acquittals mean for US standing in the world? Those calling for prosecutions do not appear to have considered this possibility. They ought to. And that is by no means the only risk. The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice – and Mr Obama is wavering in the face of their rage. Already, little hope remains of a bipartisan approach to the myriad problems that confront his administration. If the president fails to get a grip on this new controversy, the prospect of any such co-operation will be nil.
In his later clarification, he brings forth a new concern, which is not expressed in the original piece.
So one at least needs to ask, what would be gained by prosecuting these crimes and seeing the defendants acquitted? Surely this would undermine rather than affirm a US commitment never to use these methods. And I think the same goes for the suggestion being made that culprits up to and including George W. Bush should be prosecuted and if found guilty pardoned. I admit, when I first read that I thought, “Only in America”. We stand on the principle that torture is a crime and will be prosecuted without fear or favour to the fullest extent of the law (with pardons to follow). How’s that for a clear message? But at least the rule of law has been upheld, you might reply. Well, as I have mentioned, the rule of law will also be upheld, according to one school of thought, if the Attorney General exercises his discretion not to prosecute.
As this leader in the FT notes, what matters most here is not to put George W. Bush and his team in jail, or to try them and then pardon them. It is to guard against such measures being used again. That is a political as much as a legal project—it requires the building of a moral consensus, the changing of many American hearts [and] minds—and in my view it is best advanced not by prosecutions but by the “look forward” approach Obama first said he wanted to follow.
Here, his claim is not the (pragmatic, and on its face value-neutral) one expressed in the original piece – that a failed prosecution would hurt America’s standing in the world, and damage bipartisanship. It is a quite different claim: that the major risk of failed prosecution would be to legitimize the future use of torture.
(4) That those who want to see prosecutions brought against torturers are rage-filled partisans who are more concerned with getting vengeance than with seeing justice done. I quote the relevant bit again:
The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice – and Mr Obama is wavering in the face of their rage.
So here are the two continuing problems with Crook’s position as I see them.
(1) Crook’s defence of not prosecuting the officials who authorized torture was originally twofold – that a failure to convict would hurt America’s international reputation, and that prosecuting these officials at all would damage the prospects for bipartisanship. Now it’s threefold. In addition to the aforementioned, Crook is now arguing that a failure to convict would make it more likely that torture would be legitimized in the future. The fundamental problem is that his arguments seem to me to be incoherent. His initial claim that prosecuting officials at all would further damage the already scanty prospects of bipartisanship cooperation suggests that when push comes to shove, we should value any prospect of bipartisan cooperation, however slight, over punishing the people who authorized waterboarding. But his explicit acknowledgment that waterboarding is torture – and that our aim should be to stop torture happening again – seems to suggest that stopping waterboarding should be our ultimate goal.
Now, he does present us with a possible resolution of this clash but it is not at all a convincing one. When he suggests that a ‘political project’ of ‘changing people’s hearts [and] minds’ would not only be less divisive but also more likely to stop torture happening again in the long run, he is saying that we can have our bipartisan waterboarding-banning cake and eat it too. But the problem is that the ‘we all need to sit down and build a moral consensus’ argument has much in common with the ‘all we need to solve the problem are more ponies! And fluffy baby unicorns!’ defence. In the absence of any actual, concrete proposals as to how such a consensus could be built, it’s more about wishing the problem away than about solving it.
The second problem has to do with claim (4), which is really rather a slur. Does Crook really believe that the people who want to see prosecutions of these officials are embittered partisans who don’t much care about justice? Crook himself says that waterboarding is unequivocally torture. As it happens, rather a lot of people agree with him on this, but either disagree on the likely legal outcome of prosecutions (as they are entitled to – Crook is, as he admits, not a lawyer, and doesn’t in any event try to argue that administration officials have a cast-iron defence), or on the downside risks of a failed prosecution, or on whether we should be taking a consequentialist approach to the prosecution of war crimes in the first place. To suggest that these people care about nothing more than sticking it to the Republicans is hardly a good example of the Isaiah Berlin style values of open-mindedness, tolerance, and civility that Crook says he admires. And even to the extent that some of the most vigorous proponents of prosecutions are associated with the Democratic left, there is a strong argument that Crook has the causality going the wrong way. Much of the divisive partisanship that Crook dislikes so much is the product of people’s quite justified anger at the previous administration’s war on Iraq, wilful disregard of human rights and concerted attacks on civil liberties. The last administration had a radicalizing impact on many people, including some of Crook’s fellow conservatives, who found themselves disgusted (as they should have been) at what their government was doing in their name. While I don’t agree with a lot of what he says, I am convinced that e.g. Andrew Sullivan was quite sincere in his Damascene conversion, and that it was motivated by his perception of the human rights abuses that the Bush regime was perpetrating. The same goes for many less well-known conservatives that I know.
Political passions can surely lead to many vices, but so too can a moderation that is overly deferential to a perceived bipartisan consensus, and which, even while it deplores human rights violations, simultaneously condemns those whom it sees as being a little too exercised by these abuses. If Crook wants to distinguish his position from this kind of moderation, I invite him to do so.