Tuesday, May 29, 2007
One of Those Rare Instances in Which the Nazi Analogy is Unavoidable
Marty Lederman
Andrew Sullivan describes the uncanny and chilling correspondence between the Gestapo's "enhanced" (or "sharpened") interrogation techniques, and those that have been officially authorized and used by the United States over the past few years. Not only are the techniques, and the nomenclature, of a piece -- but so are the legal and ethical justifications offered in their defense.
In general, I'm a big believer in Godwin's Law. And the fact that what we're doing is eerily reminiscent of the Gestapo -- and of conduct that the United States has readily and uncontroversially deemed "torture" and war crimes when employed by repressive regimes (and U.S. forces) in the past -- should not be the final word, cutting off all further discussion. Of course, the fact that the Gestapo did something -- even something that was treated as a war crime -- does not necessarily mean that it is wrong or that we should condemn it.
But surely it ought to give one pause. And make one wonder about a major political party debate in which the candidates eagerly brag of their willingness to emulate the Gestapo -- and in which the audience lustily cheers them along.
Andrew Sullivan:
Critics will no doubt say I am accusing the Bush administration of being Hitler. I'm not. There is no comparison between the political system in Germany in 1937 and the U.S. in 2007. What I am reporting is a simple empirical fact: the interrogation methods approved and defended by this president are not new. Many have been used in the past. The very phrase used by the president to describe torture-that-isn't-somehow-torture - "enhanced interrogation techniques" - is a term originally coined by the Nazis. The techniques are indistinguishable. The methods were clearly understood in 1948 as war-crimes. The punishment for them was death.
One other thing, of a more legal nature:
As Andrew has argued repeatedly, and as Greg Djerejian has recently explained, some of these techniques do constitute "torture" under federal law, at least in some circumstances. Unfortunately, however, Congress imposed some limiting elements on the statutory definition of torture that are not found in international law, which makes the legal question in some cases more complicated than it ought to be; and, more importantly, OLC has gone even further, and come up with a reading of the torture statute under which even waterboarding would not be torture -- a reading that I've argued is plainly wrong.
Be that as it may, however, Andrew and Greg are asking the wrong question. Metaphysical and political debates about where, exactly, the line is between torture and quasi-torture may matter for purposes of criminal penalties. But such line-drawing is unnecessary if the primary question is, as it should be, whether the President can authorize the CIA to use these techniques going forward.
Even if some of these techniques are arguably short of legally defined "torture" in some cases, surely they are the sort of "cruel treatment" that the Geneva Conventions prohibit -- particularly when one recalls that those treaties were written largely with Germany's practices in mind. (The techniques might also, at least in many cases, violate the federal assault law and the McCain Amendment, as well.) And therefore the techniques are plainly unlawful -- and a President committed to faithful execution of the law would not authorize their use by the CIA -- whether or not they are subject to the criminal sanctions reserved for "torture" as such.
Posted 1:20 PM by Marty Lederman [link]
http://balkin.blogspot.com/2007/05/one-of-those-rare-instances-in-which.html
