The Torture Memos

The Bush Torture Memos recently released (available at TPM) are not fascinating reads. As literature they are repetitive and soulless, more so than your average legal document. What was striking to me was the similarity in tone to the coldly efficient way the Nazis discussed their most despicable practices in their internal documents.

The experimental subjects were placed in the water, dressed in complete flying uniform, winter or summer combination, and with an aviator's helmet. A life jacket made out of rubber kapok was to prevent submerging. The experiments were carried out at water temperatures varying from from 2.5 to 12 Centigrade. In one experimental series, the occiput (brain stem) protruded above the water, while in another series of experiments the occiput (brain stem) and back of the head were submerged in water. ~ Dachau medical 'experiment' description

In this technique, the detainee is lying on a gurney that is inclined at an angle of 10 to 15 degrees to the horizontal, with the detainee on his back and his head toward the lower end of the gurney. A cloth is placed over the detainee's face, and cold water is poured onto the cloth from a height of approximately 6 to 18 inches. The wet cloth creates a barrier through which it is difficult - or in some cases not possible - to breath. ~ Waterboarding as described in the Steven Bradbury memo

Even the conservative legal blog The Volokh Conspiracy found the memo's subject matter 'grotesque.'

The current question is whether the people who carried out these tortures should be prosecuted. President Obama says no. The military and CIA officials were merely following orders in executing torture and are not to be expected to use their own calm, rational, moral judgment. This is the Befehl ist Befehl (Orders are orders) defense that was used during the Nuremberg War Crimes trials. While Americans did not accept that defense when it was used by Nazis it has been a very effective defense through the years when used by Americans.

The defense is that they asked Bush Administration lawyers and the lawyers said it was legal. Yet one Bush lawyer famously claims that crushing a child's testicles is legal and I am curious how many of these military and CIA officials would commit that act if ordered?

War crimes are prosecuted so that war crimes will not occur in the future. It is clear from these memos that the military and CIA officials wanted to commit torture and were only seeking lawyerly permission. If we cannot stomach prosecuting the torturers themselves then we should prosecute those who gave the orders. At the very, very, very least we must disbar the lawyers who tortured the law to justify acts of inhumanity.