By Ask Foldspang Neve
To the limited attention of the world outside New York City, Eric Garner was choked to death on July 17 of this year; he was suspected by police officers of the crime of selling ‘loosies’, single cigarettes, whereby he could have made a profit of several dollars. The case was not given wider attention until the common law system under whose jurisdiction Garner and his headsman found themselves, decided that immediate capital punishment without trial was not necessarily too harsh given the circumstances: Garner was, after all, standing while black (even if that same offence used to be punished only by arrest).
One should think that a legal system that defends without trial the immediate, violent death of a suspected loosie-dealer must have unfathomably harsh punishments in place for those responsible for those responsible for well-documented, systematic, organized, intentional torture and killing of prisoners?
Not so. The accused have already absolved themselves of any blame. This did not work well for the alleged cigarette-seller, but it does seem very likely that it will indeed be enough for the politicians and CIA leaders and operatives responsible for the American torture program. The defenses invoked so far have been mostly predictable, tired tropes: torture ‘saved American lives’, a fully unsubstantiated claim that rests on a counterfactual, the evidence about which the accused claim they have to keep to themselves; and, techniques such as waterboarding and “insects placed in a confinement box” did not constitute torture. (As if Orwell’s Winston would have reacted very differently in Room 101 had his phobia been about arthropods instead of rodents.)
There is, of course, no good reason to think that a bureaucrat or a politician, any more than other person, is simply speaking in his or her own interest when asked to witness about the factuality and circumstances of a crime in which he or she is suspected to be involved.
Just as any other individual is entitled to state his or her case, so is a government official, especially one that has been accused of anything as terrible as being responsible for a program of systematically torturing prisoners placed under their supervision. The idea that the facts of a case can be interpreted differently, and that a defendant’s stating his or her case can change the perception of whoever is judging the case, is integral to our interpretation of justice.
Yet just as such a defense should not be discounted in virtue of being the defendant’s claim, so it should not be counted as anything more than a defense. Whether the facts are disputed or not and whether the defendant is in fact – in the eyes of the system of law in question – culpable or not, such testimony should always be considered biased toward the interest of the speaker.
This does not become less true simply because you are a CIA boss and get to publish your defense in a Wall Street Journal op-ed where you invoke in your defense that your work environment “felt like the classic “ticking time bomb” scenario—every single day.” Stressful working conditions are of course a factor to be considered in wrongdoing, but it would hardly exonerate somebody from a speeding ticket, much less the tormenting to death of a man chained naked to the walls of what its director called “a dungeon”. Moreover, if establishing the torture program really was the right thing to do, why do you even need to invoke that you were under a lot of stress?
In other words, just because a former vice-president who has all along been a vocal advocate of torture calls a report clearly incriminating him “a bunch of hooey”, it does not mean that we should necessarily be swayed by his eloquence.
The same goes for Dr James Mitchell, who as a psychologist trained to understand the human psyche put those insights to use as the contracted developer of the CIA’s torture program, when he agrees with said vice-president that the report on torture is a “load of hooey”.
In fact, if we are in doubt about the verisimilitude of that statement, let us look at motives: Dr Mitchell and his partner, Dr Bruce Jessen, reaped rewards of $81m worth of contracts as the former Air Force psychologists sold their services to the CIA through a newly-established company.
As the New York Times reported back in 2009, the psychologists had no knowledge of either actual interrogations aimed at uncovering the truth, of Al Qaeda, or of Middle Eastern or Central Asian cultures. What they did know about was a variety of torture techniques employed on American POWs during the Korean and Vietnam wars, knowledge they had from dealing with returned, former prisoners. If they had listened to John McCain or any medical expertise on torture, they would also have known that torture is not efficient as a means of interrogation, but highly efficient as a means of terror and repression.
As for guilt, currently only power shields the perpetrators. A system of direct authority, such as in a military chain of command, exonerates neither the actual executioner nor the officer issuing the criminal order. Hence arguments, such as former (Obama-era) CIA director Leon Panetta’s, that say that assigning guilt would be unfair to CIA operatives who thought they acted under orders are misguided. It is the assigned-to-be torturer’s responsibility to back away from torturing, at the cost of his or her career if necessary. Most sensible souls should agree that even in the narrowest selfish terms, a career is not worth becoming a torturer for.
The same, of course, governs the mutual expectations of action that rests on economic incentives rather than on (or in addition to) traditional authority. Thus it does not help Mitchell at all to say that he was “”just a guy who got asked to do something for his country by people at the highest level of government, and I did the best that I could.”” That is an admission of guilt, not a defense.
(For progressives, it is hard not to be gleeful when reading in the same interview with the Guardian that Mitchell “also criticized Obama’s healthcare policy – a “shit sandwich” – and his administration’s approach to global warming. [He] believes it’s a myth.”
Yet taking down Bush-era policies was always easy, but inadequate: most CIA personnel are in intelligence as a vocation and have continued their careers under the current administration.)
This is important not only for the big fish such as the CIA directors, the torture entrepreneurs and the vice-president: as the Guardian reports, the tormenter responsible for the death of Gul Rahman ‘was recommended to receive a $2,500 cash bonus for his “consistently superior work”’, when, of course, he should have been charged with murder.
But apart from the truly applaudable fact that the open society struck back by publishing the report (something that would almost certainly never have happened in, say, Russia, Saudi Arabia, or Iran), maybe we are supposed to find consolation only in the fact that even torturers now have performance reviews and must see their jobs outsourced to freelancing hacks with dubious business plans to leech on the public purse.