Ultimately, here's the question: is torture a moral absolute, one that cannot be violated, forgiven, excused, or explained away? Or is it just another legal technicality?
Let's ask Alberto Gonzales:
AG: Here’s what I’ll say. I think that the U.S. government provided advice to CIA interrogators based upon the best legal reasoning by the lawyers in the Department of Justice. Was it torture, when that advice was given? No. Were the interrogations harsh? Yes. Did they save lives? Absolutely.You will note he deftly turns the question from one of legality (it was legal when we said so!) to one of efficacy: "Did they save lives? Absolutely.") Presumably, of course, we have to take his word for that, since to reveal how it saved lives would be to reveal important national security information. But it takes a real Christian to parse the law like a Pharisee.* Here's John Ashcroft on the subject:
Let me follow this. The U.S. military prosecuted our own troops for using waterboarding in the Philippines, tried the Japanese for war crimes for using it against the Allies and the U.S. troops in WWII. And yet, we’re suggesting that it’s not torture. [Applause]Because if we parse the definition carefully enough, if we twist and turn and mangle the ordinary meanings of words and make superfine distinctions that have no relevance to real-life situations or even to the concept of "interrogation," then what is "medieval" in the worst sense of that word is actually quite legal and American because, after all:
JA: First of all, the word waterboarding can be defined in a lot of ways.
Let’s talk about the definition that was used in these memos—this is a legal document—of the definition of waterboarding. “Lying on a gurney that is inclined with an angle of 10-15 degrees from horizontal, with the detainee on his back. . . head toward the head end of the gurney, cloth pasted over the detainees’ face, and cold water poured on the cloth approximately 16-18 inches—this is the definition. The question is—
AG: Dan, the opinions have been withdrawn. There are no longer binding position of the department…
I understand that, but that doesn’t mean, as lawyers, we can’t sit and discuss whether this was a correct legal assessment. Because it seems to me, in my opinion, that it is impossible to explain how this particular procedure would not be considered torture. [Applause]
JA: Members of the department went and underwent the procedure.
Once or twice, not 266 times.
JA: Many members of our military in training undergo the procedure—
Once or twice.
JA: Were you there?
No, the memos explain it. It’s once or twice.
JA: OK. I don’t know how many times they underwent it. Let me just put it this way. We relied—I relied—on the best judgments of the lawyers in the department. There are 110,000 employees in the department, the lawyers are expert, and they came up with an opinion that became part of a memo. Later, some lawyers came to me and said "We’re not confident that that memo best expresses the law here." And I said to myself, "Well, I’m the attorney general, and if we have stuff out there that’s not the best expression, we ought to amend it. We ought to get the best information we can." You know we’re in a war, you give it to the president, you give information to the other individuals, but you say, you know, they deserve the best judgment. They reworked the memo, and they came a second time, these professionals did, and according to the definition of torture, they came to the conclusion that the procedure as provided along with the advice to our personnel did not amount to legal torture.
Did they get it wrong?
JA: I don’t think they got it wrong. It’s different now.
It’s different in what sense?
JA: Because the law has been changed. [John Ashcroft called me after the event to correct a mistake he made. He wanted to let me know that, in retrospect and after conducting more research on the matter, he realized that no such change in the law was ever enacted.]
The definition of torture?
JA: Yes! The definition of torture.
So the answer then, it sounds like, is the only reason you still believe the legal assessment was correct was because there’s been a change in the law?
JA: I believe that the work of the department by these professionals came to the right conclusion.
That waterboarding is not torture.
JA: That, as described, and as commented on in their memorandum, that it was not torture.
We’re dealing with an enemy that has sworn that they want to destroy us. And they call us the Great Satan, and they have continued to say that they want to fight us and that they want to injure us, and I take them at their word on that.And, as Condi Rice said, al Qaeda is a greater threat to this country than Nazi Germany, which only overran all of Europe, invaded North Africa, went to war against Russia, and nearly succeeded in invading Britain. But al Qaeda (or somebody) has called us the "Great Satan," so that means torture is a-ok!
What is this all about? Start with the language of Wikipedia on the concept of "Universal Jurisdiction:"
Universal jurisdiction or universality principle is a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish, as it is too serious to tolerate jurisdictional arbitrage . The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens - that certain international law obligations are binding on all states and cannot be modified by treaty.It is a concept that has international recognition, even by the British in the Augusto Pinochet case. Its roots are clearly in the Nuremberg trials, and in the concept of a universal morality, or "human rights." Small wonder, then, the Bush Administration, in particular, didn't want to recognize it.
According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that states have a logical and moral duty to prosecute an individual responsible for it; no place should be a safe haven for those who have committed genocide, crimes against humanity, extrajudicial executions, war crimes, torture and forced disappearances.
Am I accusing Mr. Ashcroft, who has been very public in espousing his religious beliefs, of being a "bad Christian," or even a hypocrite? No. I am pointing out the paucity of his legal acumen, however, and the weakness of his reasoning. He is hoist on his own words. It is, however, odd that a man uncomfortable with the bare female breast of a statue representing Justice, would be so comfortable with carefully wrought rules delineating precisely which forms of pain inflicted on prisoners, is legally allowed. I am convinced the "Great Commission" overrules "Whatever you did for the least of these" for people like Ashcroft, but that's another argument.
When Reinhold Niebuhr published Moral Man and Immoral Society, his brother Richard chastised him for undermining Christian ethics, and giving a reason for people to profess Christianity without following it. Niebuhr didn't invent this line of excusing religious teachings for expediency's sake, of course; he merely described it more accurately than those who engaged in it ever could.
*I speak in anger, and employ the caricature of the Pharisees present in the New Testament. I do not use that term with any attempt at historical accuracy.