Loose torture ends: Pelosi and the criminalization of policy differences

Since it's torture week here at the blog of record, I thought it might be worth taking a few minutes to address a couple of wingnut talking points that have been making the rounds, but which haven't made their way into our exhaustive coverage.

Let's start with the claim that Democratic leaders in Congress -- and specifically Nancy Pelosi -- knew about the torture program and signed off on it. On one account, perhaps true and perhaps rumor, Pelosi even asked why we weren't using harsher techniques on men like Abu Zubaydah.

It's very difficult to know what precisely happened here. To read the wingnut blogs, Pelosi knew plenty at every step of the way and signed off without objection. That conclusion, however, seems to be based on a combination of cherry picked public statements by Pelosi and hearsay by the likes of Cheney. Perhaps more importantly, anything Pelosi knew about the torture program she would have known on the basis of briefings conducted by the Bush/Cheney executive branch. For my part, I'm not willing to assume that the information provided at those briefings was either true or complete.

But suppose we assume that the wingnut narrative is completely correct. Where does that leave us? It doesn't, I would say, leave us with the conclusion that the Democratic leadership in Congress bears the same kind of blame as those who designed, justified, oversaw, or ordered the creation of the torture program. A failure of oversight by Congress is not in the same league. Not even close.

All that said, if the wingnut narrative is correct, I'm more that willing to throw Pelosi under the bus. If she did, in fact, sign off without objection to the torture program while having a working knowledge of its operation, then she ought not to be in any kind of leadership position in the American government. And I say this as someone who has been impressed with her work throughout her tenure as Speaker.

Which brings me to the second wingnut talking point that I wanted to address. This is the one that says that any attempt to bring the architects of the Bush Administration torture program to justice would amount to the criminalization of policy difference. There is, to be sure, a coherent argument to be made on this general point. That argument would go roughly like this:

1. Laws do not interpret themselves, so each presidential administration must necessarily interpret the law and decide what practical constraints it places on action.

2. Separate administrations may disagree about the correct interpretation of law; in point of fact, a single administration may change its view over time even though there has been no change of law or facts.

3. Because administrations may disagree about the correct interpretation of law, any given administration may also sometimes interpret the law to allow policies which another administration might judge to be illegal.

4. To maintain that such policy differences could result in illegal acts would place in legal jeopardy officials who have done nothing other than what they must to fulfill the duties and obligations of their position.

5. Government officials ought not to be placed in legal jeopardy for fulfilling the duties and obligations of their position.

6. Thus, we ought not to maintain that policy differences resulting from competing interpretations of law could result in illegal acts.

Indeed, we wouldn't want something like an honest disagreement over whether CO2 falls within the scope of the EPA's enabling legislation to lead to criminal prosecutions. But what goes without saying in the argument, and ought to be able to go without saying in general, is that when presidential administrations interpret the law they have a duty to do their very best to interpret the law correctly. The crux of the complaint against the Bush Administration is that they manufactured specious legal justifications rather than interpreting the law in good faith. If that complaint is true, then the argument above would fail to go through. This is because officials who offer (or demand) specious justifications for clearly untenable interpretations of the law have not, in fact, "done nothing other than what they must to fulfill the duties and obligations of their position." On the contrary, they have knowingly and willfully subverted the law.

That's not a policy difference. That's a crime.

Adding: It's probably also worth noting that most of the actual arguments given for the criminalization-of-policy-differences claim are considerably less cogent than the one I've laid out above. Consider the following, posted earlier today at the fever swamp:

Whatever one's position on the propriety of the enhanced interrogation methods, there's no evidence that the use of the methods resulted in the death of a single American. On the contrary, several credible sources maintain that the methods kept Americans from being killed. Nonetheless, some partisans assert that those who crafted the enhanced interrogation policy should be imprisoned.

Contrast that with the position of those same partisans regarding the governmental officials who crafted the famous pre- 9/11 "Wall" — i.e., the Clinton-era policy that separated criminal investigations from intelligence operations, thereby impeding counter-terrorism investigations.

Among other things, the Wall prevented counter-terrorism investigators from accessing the computer of Zacarias Moussaoui, the 20th hijacker, days before 9/11. At the time one FBI investigator said, "Someday someone will die — and, wall or not — the public will not understand why we were not more effective and throwing every resource we had at certain problems."

The Wall went beyond what was legally necessary and indisputably rendered Americans more vulnerable to terrorist attacks (whether removal of the Wall would've prevented 9/11 can only be a matter of speculation). The Wall was kept in place by government officials who were on notice that terrorists planned to kill Americans. It was kept in place even after terrorists had succeeded — pre 9/11 — in killing Americans. Maintenance of the policy was reckless and inexcusable — some might even argue that it was criminal. |Peter Kirsanow|

Kirsanow has packed the nonsense so tightly here that he's risked the formation of a bullshit singularity. To pick out just one problem with the argument on offer, he's equivocating between standard and metaphorical uses of the word 'criminal'. The Bush administration knowingly and willfully subverted the law. The Clinton administration, in Kirsanow's own words, "went beyond what was legally necessary." These are different things, even if you work yourself up into a lather and declare that it's criminal to go beyond what is legally necessary.