And here’s the circular firing squad. John Yoo (yeah, THAT John Yoo) calls Bush admin torture policies…torture. http://t.co/R7d8HSqaxE …
— Zeddonymous (@ZeddRebel) December 14, 2014
The key distortion in the above statement is that John Yoo, in the article linked, quite specifically distinguishes between the policy itself and incidents that are reported to have occurred in the course of implementing it. The distinction is regularly ignored by critics of the CIA and the Bush Administration, no matter how prominently would-be defenders of the CIA, the Bush Administration, or both try to feature it.
To illustrate the difference, one could imagine a policy openly committed to the idea of torture – perhaps a “torture warrants” policy of the sort once proposed by Alan Dershowitz – that was not ever actually implemented for lack of torturable captives or captives who fulfilled its requirements. It is also not hard to imagine a policy meant to prevent torture under a broad definition that included all so-called enhanced interrogation techniques, and that strove to err on the side of non-aggressive interrogation, but that still produced torture or put individuals in a position to engage in torture (especially as broadly defined…): Arguably, we have had just such a policy or set of anti-torture or non-torture policies, and just such a set of torturous results, since long before the Bush War on Terror. Along parallel lines, unless the lines are in fact the same lines, some participants in the torture discussion have openly suggested, as an answer to the much-abused ticking time bomb dilemma, that torture should remain illegal, but that officials should be expected in extremis to break the law, then offer themselves to the mercy of whatever court. Dershowitz’s proposal was intended in part to respond to problems with this open hypocrisy proposal – which, as noted, may finally be indistinguishable from actual policy all along.
Perhaps the underlying argument against the “torture program” might be that excesses should have been expected, or that any policy intended to stretch the definition should have been expected to produce results that crossed over the line dividing “harsh but to be permitted” from “impermissible.” The rejoinder would be obvious, and at least subject to adjudication: that the goal, in this case a national security goal deemed vital, was important enough to override the probability of abuses, in quite the same way that under military logic we conventionally, if not always uncontroversially, discount “collateral damage” to civilians.
I do not mean to single “Zeddonymous” out. The above tweet could stand for countless pseudo-arguments put forth in the course of the torture discussion or non-discussion or pseudo-discussion. The same can be said for this other tweet on his time-line, also concerning John Yoo:
Previously John Yoo had said Bush had the legal authority to sexually mutilate the children of terror suspects. http://t.co/MHnsLFXpsD
— Zeddonymous (@ZeddRebel) December 14, 2014
Zeddonymous is here converting a particular constitutional argument, a reference to a matter or question on which the Constitution in Yoo’s interpretation is effectively silent, into a positive statement that Yoo seems clearly not to have made or intended. The relevant portion of the linked entry reads as follows – a description of an exchange during a debate in Chicago in 2005:
“If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?”, to which Yoo replied “No treaty.” [Notre Dame law professor] Cassel followed up with “Also no law by Congress—that is what you wrote in the August 2002 memo”, to which Yoo replied “I think it depends on why the President thinks he needs to do that.”
Yoo does not state that George W Bush actually had the legal authority specified. His point is that, for better or worse, the Constitution cannot pre-empt executive discretion. You may view the limitations to which Yoo refers as finally insuperable limitations of governance, or as flaws in the Constitution or the law, but, either way, Yoo was not the one proposing a “legal authority to sexually mutilate the children of terror suspects.” The notion occurred to his debate opponent, and Yoo was responding to a hypothetical.
I have followed Zeddonymous long enough to suspect that on some level he knows exactly what he is doing, and anyway that he is quite capable of understanding it. Like many others, however, perhaps like all of us sooner or later, he seems to prefer to set aside the philosophical difficulty, and instead seek to exercise an influence on the course of political determinations that have to be made even in the absence of a coherent or self-consistent rationale – in fact another version of the position that Yoo has just described. The danger for torture opponents in accepting collateral damage to the bases of public discussion, not least in the involvement of the proponents of public reason in habitual defamation of designated enemy political combatants, is the topic for a different discussion, or, more likely, non-discussion.