Banality and Accountability April 27, 2009 By Rahul Mahajan If you were a prosecutor, would you have tried

Robert Duvall but let Al Pacino go? In the growing recent debate about torture, heavily fueled by the Obama administrations recent release of four legal memos, the only consensus position, at least on the side of those who want accountability, is that the consiglieres should be tried while the Mafia dons are let off. Its as if evil is to be punished more the more banal it is; neither the men and women actually brutalizing prisoners nor the men at the top who decided they wanted to torture prisoners are to be in the dock, just the lawyers who were told to come up with a legal justification of torture. And, in fact, the memos are all about the banality of evil. Youll all have your favorite parts; perhaps it is the idea of erecting cardboard walls and putting cervical collars on the prisoners to lessen the risk of permanent injury when their heads are slammed into said walls. Or the fact that waterboarding is to be done with saline solution, not pure water, to lessen the risk of hyponatremia if prisoners swallow too much. Personally, if I had to pick, it would be in Steven Bradburys discussion of sleep deprivation (which he scrupulously notes is never done for more than 96 hours at a time). Prisoners subjected to sleep deprivation are also often put in adult diapers, but, as Bradbury says, You have informed us that diapers are used solely for sanitary and health reasons and not in order to humiliate the detainee. After reading that, one feels like Seymour Hersh when he told audiences that he hoped the Bush administration was lying about WMD, because the alternative, that they were that far out of touch with reality, was scarier. I hope Bradbury and his colleagues were smirking, even sadistically, as they wrote that; the alternative is that they were utterly incapable of empathy with the prisoners. While the argument of the anti-accountability forces that giving ones honest legal opinion should not be criminalized is correct, this is not all that lawyers do. It is not exactly unknown for lawyers representing criminals gangsters, corporations, states to spend their effort strategizing on how to break the law and construct legal arguments to get away with it. Did Bradbury really think that, as he argued, signing the Convention against Torture placed no new obligations on U.S. conduct than those in the Constitution? In any case, legal culpability of the lawyers is for a court to decide. Obviously, Bybee, Yoo, Bradbury, and others should be investigated; in the process, it shouldnt be difficult to turn up evidence linking them to Rumsfeld, Cheney, and, dare I say it, Bush. In fact, Id be happy to offer some of the consiglieres immunity if they squeal on their dons.

Barack Obama has, characteristically, tried to put this all behind us and forgive and forget, but he has also, even more characteristically, waffled. After first saying there would be no prosecutions, someone reminded him that traditionally these decisions are the Attorney Generals prerogative, at which point he backtracked. Currently, whats undubtedly on his mind is that any blanket refusal to investigate will invigorate international efforts at accountability. While the Spanish attempt to indict six Bush administration lawyers (including Douglas Feith, who was not actually involved) seems dead, the U.N. Special Rapporteur for Torture Manfred Nowak recently made headlines when he said that the Convention against Torture requires that there be an investigation. Although the United States is of course not a party to the treaty creating the International Criminal Court, it can be argued that these cases are within the ICCs jurisdiction and this jurisdiction applies precisely when a states legal system is found to be unwilling or unable to provide accountability. While it is worth noting that one of the primary fears of Bush administration officials while they were committing their various crimes was that they might someday be brought to trial, the truth is that Obama is not going to allow international jurisdiction over American officials. But he has been selling himself, and has been sold, as the new internationalist, the anti-Bush, the man who has respect for international law and the international community. The last thing he wants is a bruising political fight in which he repeatedly asserts American sovereignty and legal exceptionalism. If there is too much noise about this, he may just cave and open an investigation himself. There is a real political opening here for those who are looking for something to do.