Monday, February 11, 2008

Mukasey and torture - part II

I'm sure some of you have heard that our Attorney General, Michael Mukasey, has refused to investigate possible lawbreaking by members of the CIA who tortured prisoners. He claims to feel it would be unjust to prosecute people who acted in accordance with a legal opinion that declared that it was legal.

How should we, the American people, feel about this?

I'll tell you: we should feel pissed off that he's peddling this kind of bullshit.

Mukasey is working from an idea that, if a person reasonably believes that an action is legal, based upon opinions rendered by the appropriate government agencies, then that person should not then be prosecuted. Which sounds reasonable, doesn't it? I mean, if you're a cop and you're told that you should strip search a prisoner, and you check and you're told by the legal folks that, yes, it's okay, it'd be terrible for you to then be accused of mistreating the prisoner for performing a strip search. And in that case, it would be... we all know that a prisoner might need to be strip searched, so we aren't surprised if a particular police officer was asked to do it.

So why should we be pissed off? Well, let me digress a bit.

Sometimes, a rape apologist will insist that it can only be rape if a woman has forcefully made her wishes known. Such a person might ask "if she doesn't say no, or fight back, how can a guy know that she doesn't consent?"

And if you read that, you might even be like I was a good number of years ago, and nod your head and say "yeah, how can a guy know if she doesn't say anything?" But if you think about it, and place it in the context of reality, you'll realize what a stupid statement it is.

I mean, *duh*! He's right there! He can look at her facial expression, her body language, her reactions to his touch! He can ask how she's doing, and if she doesn't answer (verbally or non-), make sure he knows what's going on. It's not like it's that difficult to tell the difference between a woman who's revved up and raring to go and one who is horrified by what's happening.

So, when you think about it, it's stone stupid to think that "if she doesn't specifically say 'no' or fight back, it can't be rape". If a person can't tell the difference between "I'm perfectly willing to let you have sex with me" and "oh my god I'm being raped!" without the words actually being spoken, there's something seriously wrong!

Okay, back to the subject of torture. Here's the thing. Bush and his administration have said, over and over, "we do not torture," and if you look at their track record, the way they played this game was that they defined torture almost out of existence. They used clever words and parsing of the law to declare that certain "interrogation techniques" would not be torture.

So, you see, we're in a different situation here than in the hypothetical strip search I referenced above. The interrogators know that they must not engage in torture, but have been told, by the OLC, that certain activities are not torture.

The interrogators were *not* told to torture, and assured that torture was okay. They were told that certain actions were not torture.

But they were right there, seeing the effects of their actions. They saw what they did, and the effects it had, and they knew it was torture.

This pretense that they couldn't figure out that it was torture is idiotic. I can, just barely, forgive a person who, upon reading a dry description of torture, decides that maybe it's not that bad - I now think of this as the "dry description fallacy - but we're talking about people who saw it happen right before them.

It's true, you should be (and almost always are) immune from prosecution when the appropriate government agencies say that your activities are lawful... but this only applies if a reasonable person would accept that opinion!

For example, if a soldier is told that a target is identified as hostile, and the soldier takes action appropriate to the situation, and kills civilians, well, it's reasonable for a soldier to attack a hostile target appropriately. But if a soldier is told to target civilians, no reassurance can be sufficient; the order is clearly illegal no matter what opinions have been rendered. Every reasonable soldier (and most unreasonable ones) know that such an order is patently illegal, and thus, must refuse it.

The same holds true for interrogators engaging in behavior they know to be torture. Mukasey is misapplying the law.

Comments:
On the rape point, I remember some years ago reading a woman who sarcastically noted that it was truly distressing to hear that guys couldn't tell the difference between "moist passivity and dry, rigid terror."

In the same way, I'd say that anyone who can't tell the difference between interrogation and torture shouldn't be dealing with prisoners of any kind at any time.
 
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