A lengthy e-mail exchange with a reader who took issue with the tone of this post and some others made it clear to me that I ought to state my position on the relevant issues a bit more clearly (and calmly). In no particular order, then:
(1) I do think it’s possible for people of good faith to have reasonable disagreements over whether the legal advice provided in the OLC memos could have been offered in good faith, and indeed over whether it was as shoddy as many have claimed.
(2) I also think it’s similarly possible for such people to have such disagreements over whether the specific tactics approved in those memos, carried out as the memos stipulated, constituted torture. The same does not go, though, for the question of whether the tactics constituted cruel, inhumane, or degrading treatment, at least in the moral sense – it may be, though I would be surprised to find out, that these latter terms have a much narrower definition under the relevant national and international laws.
(3) I find it much harder, though, to think that there can be reasonable and good-faith disagreements over whether the sorts of tactics that the OLC memos approved were ones that would have a tendency to encourage torture and otherwise abusive and illegal behaviors down the line. There perhaps can, however, be some such disagreements over whether the right response to this tendency would be an outright banning of the tactics in question (which is my position), as opposed to the imposition of careful oversight of and clear legal consequences for those who were employing them.
(4) I absolutely don’t think it’s possible for people of good faith to have reasonable disagreements over whether what was in fact done by agents of the US government to significant numbers of detainees amounted to torture. It was really this point that I was driving at in the post in question, where I was trying to argue for the disjunction: either you have looked at the accounts of what we did and concluded it wasn’t torture, in which case you’re arguing in bad faith; or you’ve ignored the accounts, in which case your ignorance is culpable. Or, of course, you may have looked at the accounts and concluded that we did torture, in which case nothing short of head-splitting outrage is appropriate. And it’s only against the background of such outrage, I was further suggesting, that debates about the niceties of (1)-(3) above and (4)-(6) below can seriously be carried out, as opposed to functioning – as I think they often do – as attempts to keep people distracted from the underlying moral horrors.
(5) Granting (4), and granting the systematic and widespread nature of the abuses that have been revealed, I find it very hard to see how people of good faith can reasonably believe that responsibility for those abuses lies only with low-level agents and officers; it seems clear that a broader policy of torture was coordinated, even if – as seems unlikely to me, but see (1) and (2) above – the OLC memos weren’t intended to provide legal cover for it.
(6) Granting (5), I find it similarly hard to see how there can be reasonable and good-faith disagreements over whether there should be an investigation aimed at uncovering the relevant sources of authority and then punishing them as the law permits. And just as the Nuremburg Defense does not exempt the torturers themselves for responsibility from what they did, so appeals to legal cover or the circumstances they face does not exempt those who gave or ordered the giving of the orders.
(7) I do, however, think it is possible for there to be such disagreements over exactly what form such an investigation should take: whether a special prosecutor, or a truth commission, or a congressional committee, etc. The truth needs to be uncovered and the responsible parties prosecuted, but not without unnecessarily destroying innocent reputations or careers along the way.
Finally: It’s worth emphasizing that, as Mark Thompson has movingly written, all of this is about love for this country, and not – as so many have absurdly suggested – any sort of “hatred” for it. While I wouldn’t style myself an exceptionalist in the vein that Mark describes, it remains that I’m an American, and have as such a great love for this country. And it is precisely this love that leaves me so sickened by what we have done, and so committed to bringing to justice those who have committed such evil in our name. Sometimes it’s only by really, truly hating the sin that one can really, truly love the sinner.
* Edited to insert the new point (3) above – JS.