What If The Torturers Win?


Tyler Cowen is against torture prosecutions:

At many blogs (Sullivan, Yglesias, DeLong, among others) you will find ongoing arguments for prosecuting the torturers who ran our government for a while.  I am in agreement with the moral stance of these critics but I don't agree with their practical conclusions.  I believe that a full investigation would lead the U.S. public to, ultimately, side with torture, side with the torturers, and side against the prosecutors.  That's why we can't proceed and Obama probably understands that.  If another attack happened this would be all the more true.

Yglesias responds:

I don’t really consider myself an enthusiast for torture prosecutions. In part for reasons related to what Cowen says, I’m less interested in seeing the guilty punished than in seeing at least some of them and their political supporters admit that they were wrong and acting unwisely under the influence of the atmosphere of panic that prevailed in the aftermath of 9/11. How exactly you achieve that isn’t totally clear to me. But I think it’s plausible that some threat of prosecution, coupled with the ready availability of clemency for people prepared to come clean, plays a role.

I find the current situation more dangerous than Tyler does. In our current world, the laws against torture, we now know, were over-ridden with impunity or, at the very least, treated as obstacles to be overcome by bad faith lawyering, Orwellian language and political brinksmanship. Absent any serious attempt to get to the bottom of this and prosecute the guilty, the US's commitment to the Geneva Conventions and to the UN Convention on Torture is transparently insincere - and the entire international legal edifice restraining such barbarism gutted by its ostensible global leader. Bush and Cheney will not just have destroyed the integrity of America, they will have done more to advance the use of torture worldwide than anyone since the Conventions were first set up. The civilizational consequences of America's endorsement of torture as a "no-brainer" in the words of the last vice-president are incalculable.

A conscious refusal to enforce Geneva and the UN Convention when there is no doubt at all that torture took place - and is celebrated as a "no-brainer" decision by the former vice-president - is to treat such treaties as null and void. It means this: the global power that set up the Geneva Conventions has declared them optional.

Cowen's position is what Glenn Reynolds' was: Americans are a bloodthirsty, lawless lot and any attempt to restrain torture on the downlow would lead to its unmitigated and enthusiastic legalization in the wide open. Better then to stay in a zone of law-free ambiguity and hypocrisy than a zone where the US is a global leader in "enhanced interrogation." Call me naive but I do not share their view of American depravity. And I do not believe that constitutional and democratic societies should encourage and excuse leadership that is openly committed to violating the laws.

We have two honest options: to investigate the torture and prosecute the guilty or to formally withdraw from Geneva and the UN Convention on Torture. I know it would be more convenient if we could all just move on and avoid this. But we can't. So which one?