ScienceBloglings Greg Laden and John Wilkins have discussed whether or not CIA employees complicit in torture should be exempt from prosecution. The debate has revolved around the 'following orders' issue. But this misses a key point:
CIA personnel are not military personnel.
There is a specific reason the CIA is a civilian agency and not a military command (in fact, there are strict regulations about the percentage of military personnel that can work for the CIA). In a military command, soldiers can disobey orders if those orders are found to be unethical. However, if the orders are found to be ethical and not in violation of military law, the soldier in question can be prosecuted for disobeying orders. Now, this wouldn't be such a big deal if soldiers could resign at will. For obvious reasons, they can't.
But CIA employees are just federal employees (with lots of security clearances). They can walk. There are no legal impediments to quitting if confronted with the prospect of being complicit with torture. Yes, they would have to sign lots of non-disclosure agreements. Their federal pensions would be smaller. They probably wouldn't be able to line up a cushy, lucrative job with a private intelligence contractor. But those objections aren't about law or the obligation to follow orders, they are about careers and money.
In other words, those who claim they were following orders, were complicit in torture for money. If that is not the definition of the banality of evil, I don't know what is. The alternative is that they believed torture was the right thing to do.
Either way, the Republic is not safe until we prosecute these criminals.
Update: Daniel De Groot makes a similar point. And, on a related note, maha asks, "If torture is so good at extracting information, why did it need to be applied 183 times in one month?
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It would be interesting to know the process of selection for the CIA ops chosen for these positions. A good guess would be that the employees most likely to question the legality/morality/appropriateness of these actions were the ones least likely to be given the assignments.
Sociopaths? Probably not. Least likely to question authority, most likely to believe the notion of the ends justifying the means? Probably.
Marginally related note: In the late 80s, early 90s, I knew a fellow who taught at a local small college (a catholic school). He had served with the marines in Viet Nam; re-upped for three additional tours, because, as he put it, "I was good at my job, and having me there was better than having another green kid there." In part of his third term he took part in Operation Phoenix. He gave, as his primary reason for leaving the Marines, the fact that "the attitude, operatives, and behavior the CIA brought to that program scared the hell out of me".
His comment, as well as the stories that show how the Phoenix program spiraled out of control with CIA involvement, indicate to me that the behaviors shown in the current "war on terror" have to be eliminated, lest the allure of the "good ol' days" get a foothold in the agency.
In addition, a fair few "interrogators" involved were civilian contractors for the CIA, not even CIA civilians.
Good old CACI(A) whose website proudly proclaims them "Best in Ethics Training and Communications; Best in Ethics Internal Control Systems" was a big one.
While I agree with you that this makes the issue more complex, I think it remains the case that the military as much as the intelligence agents, and any individual acting under US orders, should be prosecuted for torturing anyone at all. Under any circumstances. They may be acquitted, but at least it will be tested in law.
I think this might be a straw man. The issue, as I understand it, is not that folks were acting under orders, but that there were opinions from the Justice Department to the effect that certain tactics were not torture.
I wonât argue that the Justice Department opinions were correct, or even rational; that would be silly. The point, as Iâve heard it made, is that some of the torturers might have thought that their behavior was legal.
Iâm all for going after the authors of the goofy opinions, though. At a minimum, they ought to be shamed and kicked out of law, for the same reasons that goofy or fradulent scientists are shamed and kicked out of science.
Thing is, when an abuse like this becomes institutionalized as it was, the people doing the actual deed aren't the problem: the institution is. It's all well and good to insist that the CIA personell involved in this should have refused, quit their jobs, sacrificed their carreers, etc. But I think a good bit of our distaste for "letting them get away with it" comes from the realization that there was a point in time when, I believe, a *majority* of Americans were in favor of torture. And deep down, we were in favor of it not because we believed it was a necessary evil, and the only way to save lives and Protect Our Freedom (tm), but because we'd been hurt, and it felt good to inflict pain on others. The argument from the top was "Ticking time bomb! No choice but to torture!", but the feeling on the streets was "These people are monsters and deserve to feel pain."
And I think if we prosecuted those involved in the torture, we wouldn't be making restitution, we wouldn't be rehabilitating the torturers, we wouldn't be deterring others from doing the same. We'd be relieving our collective conscience by making a group of people far removed from the actual decision into convenient scapegoats -- we'd, in all honesty, be doing almost the same thing to the torturers as we did to the torturees: making ourselves feel better by stringing someone else up by their thumbs.
It'd make America feel better to have someone specific to blame. "A few bad apples" sound familiar?
I'm not sure that you are totally correct in the military non-military distinction for CIA field agents. It may be slightly more complicated than that. But it is an interesting point.
Also, from my perspective, this is not about the "I'm only following orders" defense. A number of people over on my site have made that mistake. This is not about defense at all, but rather, prosecutorial strategy.
But alas, what I was hoping for seems to not be the case after all. See this for much much worse news.
It may be slightly more complicated than that. But it is an interesting point.
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