The Torture Memos: Indictment of America or Democracy More Generally?

I realize I'm going to get flak for this. Nevertheless, I encourage people to read them. Start with the 18 page memo signed by Jay Bybee, former head of the Justice Department's Office of Legal Counsel (OLC.)

There is much to digest. Andrew Sullivan is only a little hysterical when he calls the Bybee memo "as chilling an artefact as you are ever likely to read in a democratic society."

I haven't finished reading yet. To be honest, I didn't really want to read any more. The memos are disturbing (and the some of the documents housed on the ACLU's website are of poor quality for some reason, making reading even more difficult.)

The memos gave legal support to several interrogation methods the CIA used following 9/11, including waterboarding, the use of insects, sleep deprivation, stress positions, etc. CIA officials wanted to know if these techniques violated the prohibition on torture found in American and international law. Relying on the details provided by the CIA, the memos conclude -- after lengthy, albeit fascinating analysis -- that the interrogation techniques do not violate the law against torture.

Perhaps one of the most interesting and horrible sections of one of the memos is this one, images of which I've shamelessly stolen from Glenn Greenwald.

The footnote at the end of this excerpt reads as follows:

These excerpts are from the May 25, 2005 memo, authored by Steven Bradbury, head of the OLC. In short, the memo acknowledges (a) that the interrogation techniques used by the CIA (nudity, water dousing, sleep deprivation, etc) resemble practices that the U.S. has labeled torture when other countries use them, but (b) that this fact isn't, and needn't be, relevant.

I have a very hard time not interpreting this passage as the acknowledgment that inherently bad acts are permissible when the U.S. does them.

Some on the left who will undoubtedly view these memos as an indictment of the Bush administration, if not the United States in general. But that's insufficient. Any nation, not just the United States, might use coercive interrogation techniques after an event like 9/11. Some of those nations -- China, perhaps -- would not seek out legal advice before or after using them. In such cases, we wouldn't even have memos like these to look back on.

I am not, not saying that this makes torture right. If waterboarding interrogation subjects is wrong, it is wrong when anyone does it. But democracies consult their legal bureaucracies. Other societies torture in secret. The former reality gives rise to the pathetic hypocrisy the torture memos exhibit.

If Canada had its own 9/11, would it engage in torture? Maybe not. Would it allow torture to be used on its behalf? Almost certainly. Have Canadian intelligence agencies benefited from information gained through the use of torture? Probably.

To condemn the U.S. is to condemn politics in general. Clausewitz said that "war is a continuation of politics by other means." Foucault, developing the thought of Thomas Hobbes, has turned that saying on its head: "Politics is a continuation of war by other means." There is some truth to both these sayings, as shown by the American use of torture as an interrogation technique.

Torture, in fact, is the continuation of democratic politics by other means. To rule in a democracy, one must ensure that not too many of one's citizens die through the violence of terrorism. We have legal mechanisms, checks and balances, to curb the violence of the state against its citizens. These parchment barriers serve well enough to ensure that the state's violence breaks most severely against despised minorities, like drug users, and not the average citizen.

They do not -- and, as many of my American students tell me, should not -- protect those outside the polis. If non-citizens must be sacrificed to safeguard the polis, they will inevitably be sacrificed. Torture is the application of the logic of citizenship, taken to a conclusion that makes us squirm and recoil. Nevertheless, most of us do not take it to be a reductio of that logic, or of the state's unlimited capacity to inflict violence in order to achieve "necessary" social ends.

That is, perhaps, a mistake.

U.S President Barack Obama has done a curious thing. In releasing the memos, he also immunized the torturers. His attorney general has said that "officials who used the controversial interrogation tactics would be in the clear if their actions were consistent with the legal advice from the Justice Department under which they were operating at the time."

But, on second thought, this was to be expected: President Obama knows he will undoubtedly need the services of the torturers in the future. Democracy must be defended.

Cross-posted to the Shotgun blog.