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No Accountability for Torture

Noah Feldman has a depressing legal analysis explaining why, even if it were politically feasible to put someone, anyone, on trial for torture, it will never happen. Excerpts:

Then there was another form of argument in the withdrawn memo, one that according to the Feinstein report was also discussed by CIA lawyers. This was the claim that, if interrogators broke the law, they could subsequently defend themselves at trial by arguing for a defense of necessity. Criminal law recognizes necessity as a justification or excuse against a criminal charge. In essence, the defendant argues that his actions were necessary to avoid a greater harm. The classic example would be a person who destroyed a dam to prevent property from being flooded: The crime of destroyed property might be excused or justified in light of the necessity of avoiding greater harm.

This time the harm was torture.


In short, then, the memos worked: The Department of Justice gave CIA free pass to torture without being punished. The legal analysis may have been wrong or morally monstrous, and the CIA appears to have lied to the Department of Justice. But even discounting the political factors that make it unlikely a president would prosecute the CIA, the legal ground for proceeding would be very rocky.

Serious crimes were committed. They’re going to go unpunished.

Just so you understand: our government reserves the right to do whatever it wants to another human being — fake-drown him, shove a hose up his butt and pump him full of hummus, make him think they are going to rape his mother in front of him, fun things like that — as long as they believe that doing so was a matter of national security.

They can do anything they want to you, and nobody can touch them.

And if anybody points out what they’ve done to you and says it’s wrong, there will be more than a few people, both in leadership and in the population, who say shut up, you, quit tearing the country down.

I suppose somebody is going to do a poll on this, so let me make a prediction now: 62 percent of the American people will have no objection to what the CIA did, and will say it was wrong to release the torture report. I hope I’m wrong.

You might say that this is something the CIA did to foreigners, so we American citizens don’t have to worry. You have more faith in the American government and in the American people than I do. If the CIA were doing this on American soil, to American citizens, and saying it was necessary to prevent another 9/11, the same Republican politicians would defend it, and just as many American citizens would agree with them.

It’s going to happen again, because most Americans don’t care if it happens again.

UPDATE: ‘Memba this?:

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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