Update: In response to Cedric Green, I should make it clear that the ban on Michael Turner was not because he voiced opinions that were unpopular on CT. It was because of his repeated unwillingness to abide by the rules. I had asked people to stop the personalized back-and-forth – he jumped back in again shortly thereafer. I then imposed a 48 hour cooling off ban on him – he immediately violated it. I told him that he was on his last warning (this is rather more leeway than we usually grant in these situations) – and he started commenting again before his cooling off ban was up. If we are to have structured conversations here, people need to abide by rules, especially when they are told that the conversation is degenerating. None of us get paid to do this – we write posts and moderate comments sections purely on a volunteer basis, and our time and patience are limited. When commenters make it clear that they are unwilling to abide by the quite clear rules we have set, they get booted. It is as simple as that. If it was a simple case of banning someone for acting like an arsehole, I very likely would have banned Turner – but would have banned Rich Puchalsky and Righteous Bubba too.

When working through this issue, I have wondered what I would do if my young daughter was abducted and held captive

As for the rest, I’ll propose another point of view. Why should we argue with people who support torture? I think that we should just condemn them. If that leads to greater divisiveness within society, good. If it leads to pro-torture belief being adopted as a core element of the GOP —which, to be honest, it already has—good. If it has to be a political issue, let’s let everyone see the options and make their choice. It’s a choice between civilization and a disgusting evil that combines both decadence and barbarism. By all means let the GOP become the party of torture, and let all of their works be tainted, when the public eventually comes to its senses, with that association. Or if the public doesn’t, as I said before—fair warning to the rest of the world.

On my reading, MT was arguing in good faith, and in any case has a practical point that it is difficult to prevent torture if you are not prepared to argue with the, unfortunately, many people who support it, in some form or other.

It is frustrating and terribly wrong that public debate on this issue is still in large measure focused on Ticking Time Bomb scenaria. But that is a fact we must deal with to prevent the use of torture.

On this, one of the discussions at Balkinization is particularly inspiring and useful:
http://balkin.blogspot.com/2006/10/torture-and-ticking-time-bomb.html

Especially Brian Tamanaha’s comment to Stephen Griffin:
“You have written a compelling response to the Ticking Time Bomb Scenario. The TTB is used to score rhetorical points, and to justify heinous conduct. However, although I fully agree with your argument, and am absolutely against torture, I wonder whether there is a response that better acknowledges and meets the intuitive appeal of the scenario. In order to do this, one must accept the basic premises of the TTB scenario (recognizing that it is unrealistic and stacked and faulty in many ways).

When working through this issue, I have wondered what I would do if my young daughter was abducted and held captive in an undisclosed location by a bad guy. If I happened to get my hands on that guy, how far would I be willing to go to find out where my daughter was being held? Time and again, my honest answer was that I would do whatever it takes, including inflicting severe pain and permanent bodily injury, if necessary, to get this information from the bad guy.

If I am willing to do that, then it must be acknowledged that there are situations in which torture would be considered even by those opposed to torture (assuming other opponents share my position). Although there are big differences between these scenarios, the TTB scenario intuitively works the same way: by placing on the scales an extraordinarily compelling cause that outweighs the normal absolute ban against torture.

Now comes the key difference with TTB and how it is being used by proponents of torture. The people who invoke TTB want to whitewash their conduct, making it legal and moral, and ordering someone else to do it. In my scenario, in contrast, I did what I did directly, with my own hands, and I would not claim that it was either legal or morally justified. My actions—imagine the worst—were evil. But I did it because I felt it was absolutely necessary, given the stakes. I broke the law and should be punished.

If Bush Administration officials approached the issue the same way—that is, they would have to do it with their own hands and they would thereafter suffer the legal punishment—they would not be pushing for torture. And if that is indeed the case, it demonstrates the lie perpetuated by the TTB scenario.”

Did you have something substantive to say, about the subject at hand?

This idea that the Obama administration has basically let everybody off the hook just didn’t pass the sniff test with me, so I went looking and found pretty much the kind of thing I expected they would say (Rahm Emanuel’s pathetic on-air fumbling excepted). But why does it seem like I’m the only one in this discussion who does things like that? After all, Crooked Timber is an academic blog. Is the academic habit of turning up, quoting, parsing and commenting on primary sources just more “verbal diarrhea” when it comes to blog comments, at least on this issue? I guess so. At least, if Martin Wisse’s diagnosis of me @ 81 is correct. (Thanks for that one, Martin, by the way. I love you too.)

That’s not the commitment of the AG statement. Nor, as far as I can tell, does it square quite with anything Obama has said. What AG press release says (in part) is:

. . . intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.

And it’s those, and only those, who would get DoJ protection from the legal action of others.

Officials who sought—after the fact or at the time—to shape Bush DoJ legal counsel around crimes already committed . . . Henri, please tell me, how does that fit any possible definition of relying on “authoritative legal advice” in “good faith”?

And what about officials who exceeded the ostensibly-legal mandate? (I suppose you could exceed it even by going one second over the supposed 40-second limit on water applications in waterboarding.) How would such conduct represent “conform[ing] their conduct to that advice”?

As I understand it, such misconduct was rife. I mean, lots of people in the CIA secret prisons died under interrogation or as a result of it. Say what you want about waterboarding, walling, stress positions and sleep deprivation as prescribed by the memos—it would take an awful lot of that kind of torture to actually kill anybody, assuming you even could. Permanent mental disability, yes. But death?

It may well turn out that the Obama/Holder position only lets a smallish fraction actual torturers off the hook. Among those who are legally in the clear, there might be dozens who backed away from opportunities to do worse, who saw horrible things, and who realized they could only preserve both their careers and their sanity by getting reassigned. Among those on the borderline of compliance with Bush DoJ, or just beyond it, there might be some who realize (or have been told by their lawyers, at least) that there’s no reasonable doubt of the case against them. They might exchange testimony in exchange for immunity. Among those who went well beyond the Bush DoJ limits, there might be some who have (or in the case of the real sociopaths, merely claim) resulting psychiatric conditions, who could hope to win a case against culpable figures in the erstwhile administration. The hope should be that this kind of thing snowballs into a real case against those who architected the system, and who ordered it made in the first place. I imagine that’s a realistic hope because I imagine—silly me—that Barack Obama and Eric Holder are much better lawyers than I could ever be, and have even more such lawyers on tap.

As for the Bush DoJ lawyers, who knows what can be proven? As lawyers, they are CYA experts. However, the testimony of an apparently guilt-stricken and contrite Bybee could net you the obviously unrepentant Woo. I think this is one of those rare cases when Krugman could have gotten it slightly wrong (but maybe only because he relied on the usually very reliable Adam Serwer). Is Bybee “completely shocked to find that the rules have changed”? Serwer apparently assumes that the WaPo piece is the fruit of a sudden and recent organized PR campaign on Bybee’s behalf (and maybe Krugman swallowed that assumption whole). But why couldn’t the story equally have been the fruit of investigative journalism? That WaPo piece suggests Bybee’s misgivings go back as far as 2002. Maye time to stick a fork in him, not incinerate him. Or maybe a little more basting is in order? I’d rather leave that judgment call to expert meat roasters, frankly.

And the lawyers? They won’t defend the opinions expressed in the memos, they will admit it was a mistake. They will regret and explain how these mistakes were made, how their intentions were pure, and how they acted in good faith. Is it possible to prove they didn’t? I doubt it.

My apology if I was part of the disconvenience. ‘Nuff said indeed.