I have some quibbles with the Hiroshima analogy. Mostly because I think there's a modest utilitarian argument to be made that the nukes saved some lives in the end calculation and reduced the overall suffering in the process. And the net effect of them was to be so terrifying, so horrible in power, that it more or less ended the major (in particular European) world powers fighting each other in massive destructive conflicts as they had for centuries prior as the cause of much world suffering. It didn't end war, and really, what will? But the types of wars it ended make the devastation in Iraq from the "shock and awe campaign" of wanton destruction we engaged in look like a picnic.
I don't think it's the best case to be made. It's possible there were other ways to end the war just as swiftly. My actual "numerical" or utilitarian concern isn't necessarily even massive American casualties from the enormous two phased invasion that we had planned for the main islands of Japan and the sustained bombing and naval campaigns alongside them, but for Japanese civilians from starvation and continued firebombing, as well as any eventual invasion deaths they would suffer in needless combat, all of which would vastly exceed our own pain and tolls, to the possibility of millions of deaths, not "mere" hundreds of thousands. We were blockading Japan with unrestricted submarine warfare. Rather successfully at that. So much so that we were unable to press the German navy for using the same tactics as a war crime because the Japanese lawyers would argue at their own war crimes tribunal, quite reasonably, that Chester Nimitz should be brought up on the same charge. I also don't think the fact that the Japanese leadership and generalship was brought up as heinous war criminals, many of them executed or imprisoned for their crimes, makes any difference in this calculation, other than to suggest that it would have been difficult to secure the surrender of their nation prior to compounding suffering and defeats. That we were fighting "evil men" with the powers of a large and powerful nation and its resources behind them doesn't make our own evil tactic or strategy any better.
The same is true now. Al Qaeda and its leaders may indeed be "evil men" in the same vein, criminals of a different order, but it is no better of us to resort to barbarous tactics and strategy to defeat them. To compare it to torture, I think I can see the moral equivalency involved in claiming "anything goes in war" and that these two should be equally regarded as falling under that umbrella. I'm not so sure I would say that "anything goes" in order to defend the atomic bomb. It's by far one of the weaker arguments in its favor and it doesn't excuse other things we were doing, also deemed out of military necessities at the time, that may have been just as bad if not worse (blockades, firebombing of Dresden and Tokyo for example). If it might "save lives" or more broadly reduce suffering of all involved, then I'm prepared to defend something as the least bad option of a bad situation (and a global shooting war is, quite simply, one of the worst "bad situations" you could imagine).
I don't think torture can save lives, certainly not enough lives and suffering to merit the excuses. As with the atomic bomb, there are other alternatives that might have worked or might have been more useful. Unlike the bomb, we have long experience with counter-factuals that supply us with the idea that these alternatives DO work, DID work, and WILL work in the form of other methods of interrogation that have provided us with intelligence and verifiable results across the entire scope of human history giving us far less uncertainty and far less moral quibbling to say that something is still clearly a violation of humanity to undertake. That's even before acknowledging that torturing prisoners in the immediate tactic sense to prevent some major attack from happening say, does not do much to prevent the next one. The atomic bomb at least ended the war. It's possible to say with a counter-factual that we could have done it with a lesser price, but I am not sure that the facts prior to Hiroshima and the invasion of Manchuria bear that out. Perhaps that assessment is incorrect. I do think lots of historians disagree with me. I'm not really sure that I am convinced of it myself (as I said, it is a modest calculation rather than a strong one). I am convinced that there isn't significant evidence to suggest that we need to abuse captured and helpless enemies of the state. Either to elicit strategically important information from them or to satisfy some bloodlust vendetta against them.
I didn't need another 280 pages to tell me that Yoo and Bybee (and others) made this possible simply because they didn't care about the law or the justice system that they were supposed to uphold out of legal and political expediency to justify something that they were told and assured we needed to do. The view of the President's national security power as unchecked and dictatorial, even to the point of threatening a man's family with bodily harms or the inflicting of actual pain and suffering upon that same man, is not something we should want Presidents to actually possess. There is no price and no "worst bad situation" for which that becomes justified as official state policy. If some CIA agent goes rogue and beats the living hell out of a terrorist someday, and somehow saves New York from blowing up, then we can have this discussion about whether or not to charge that agent (I still think we should. Though it's possible we wouldn't be able to bring ourselves, as a society, to convict this person of a crime). But if someone tells him its okay and, indeed necessary, ahead of time, someone in charge, that person should be tried and convicted of a crime. Cruelty should not be made into official state policy. To do that invites the image of a boot crushing a man's face for an eternity. To use a weapon of mass destruction, a bomb of immense power, upon a city while engaged in a war, is indeed a hateful and cruel act. As is the act of engaging in the war itself. It might still be regarded, in some small measure, as a necessary one. For that, we have the misfortune of not possessing good counter-factual evidence with which to argue against ourselves for an eternity. I can suggest, as with the history of torture, that we now at least may have the opportunity to have learned from that event, drawing out from it as an error if we wish to do so, and accepting that we must work diligently and dedicate ourselves to the eradication and prevention of massive wars between the nations while we possess the weapons capable of annihilating one another. Of the arguments against torture, this is the strongest one against using the atomic bomb in August 1945: that it must never again happen and be permitted in our names. We have learned from a considerable body of history of what use is torture to the state and its people, and that history is less than favorable to the view that it "saves lives" or is "necessary" to gather intelligence.
All this does is add to that considerable ledger. At some point, I imagine people will be able to read more of it. The stuff that's already been released (the original torture memos which this investigation was looking at), should chill one's blood with the amount of unchecked authority it allows for by the President and his agents in the pursuit of "national security", and in the specific and grotesque manner that each approval is "tested" against whatever legal or ideological principle was applied and ultimately found acceptable.
As to the revised version, it sounds like it boils down to "you had to be there" as the excuse. I think, in so far as the rogue agent using torture in the field on a captured prisoner, this is correct. We can still reasonably disagree that their judgment was correct and could argue that merit or demerit of that case and its particulars in a court room or a Congressional hearing or some like forum. But those rogue agents weren't the ones targeted for investigation by the OPR. "Their" lawyers were. The people who are supposed to provide dispassionate advice on whether their actions could be interpreted as a violation of the law or not. I don't think we can reasonably approve of state empowered actors removed from the emotion and tension of that terrible situation being face to face with a man who wants to kill American citizens and knows (with a certainty which we never have possessed) how or where they might do it next, that we can construct an appropriate legal architecture to protect the men in the room from "doing whatever they feel they need to do" that would protect the men who are abused in that room from being abused with malice and impunity rather than with the understanding that it would have to be justified at some later date and held to account. It would seem more appropriate to let the American public decide this after the fact in accordance with the established laws of our country and those international treaties which we have ratified on the subject of torture and let our ideals govern over our passions and values.
Yoo's argument, rather than the OPR's justification of it, appears instead to be something like "we don't know what 'is' is". Which was laughable when Clinton tried it (over something far more humorous than the dark and twisted world of John Yoo). We perfectly well knew what was and wasn't torture in the legal sense because we had tried or attempted to try people in a court of law for doing many of the things we did. We even tried some of the Americans who did them at Abu Ghraib. You don't need to be Eric Blair to describe and figure out these things.
Goldberg on McCloskey and Spencer
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