Depraved Judgment

by digby

First of all, good for Obama for releasing these OLC memos. I know that he was under tremendous pressure from the intelligence community not to do it and it was an act of principle for him to defy them. Like dday, I reamin very, very disappointed that he refuses pursue charges against those who ordered these atrocities, but I am grateful that he's at least releasing this information.

Having said that, and only having read through the Bybee memo (pdf) authorizing the torture of Abu Zubayda, I feel like vomiting right now. This is the very definition of the banality of evil --- a dry, legalistic series of justifications for acts of barbaric cruelty.

The phrase "banality of evil" is very overused, I realized. But this is a case where it applies. Bybee writes as just another corporate-style lawyer finding a legal rationale for his client to do what he wants to do. Happens every day, no big deal. Except that he's writing memos justifying using techniques that have been known to be torture since at least the Spanish Inquisition.

Oh sure, he says it needs to be "medically supervised" and performed by only those who are "qualified" which makes it all bureaucratically neat and tidy. And he consistently asserts the twisted logic that because American military people had come through the SERE training without suffering any lasting harm, that prisoners would also suffer no lasting harm, which not only makes no sense, but gives him a quasi-legal and moral justification for perpetrating despicable acts. Everything is very sterile and very controlled. And that's what makes this opinion so chilling.

After the nonsensical use of the Hitler imagery at yesterday's events, I was hesitant to bring up Arendt again, who after all, most famously used her thesis observing the trial of Adolph Eichman. But reading a dry legal brief offering the opinion on the ways one can put a prisoner in a small dark box with an insect, without breaking any laws inexorably draws you to her work:

He operated unthinkingly, following orders, efficiently carrying them out, with no consideration of their effects upon those he targeted. The human dimension of these activities were not entertained, so the extermination of the Jews became indistinguishable from any other bureaucratically assigned and discharged responsibility for Eichmann and his cohorts.

Arendt concluded that Eichmann was constitutively incapable of exercising the kind of judgment that would have made his victims' suffering real or apparent for him. It was not the presence of hatred that enabled Eichmann to perpetrate the genocide, but the absence of the imaginative capacities that would have made the human and moral dimensions of his activities tangible for him. Eichmann failed to exercise his capacity of thinking, of having an internal dialogue with himself, which would have permitted self-awareness of the evil nature of his deeds. This amounted to a failure to use self-reflection as a basis for judgment, the faculty that would have required Eichmann to exercise his imagination so as to contemplate the nature of his deeds from the experiential standpoint of his victims. This connection between the complicity with political evil and the failure of thinking and judgment inspired the last phase of Arendt's work, which sought to explicate the nature of these faculties and their constitutive role for politically and morally responsible choices.

Bybee and Yoo and Addington and all those lawyers in the Bush administration who worked on this cannot actually be explained in quite this way. They obviously knew they were legally exposed, they researched the issue and in the course of that must have read the reasoning behind the laws they were seeking to circumvent. They weren't mere functionaries carrying out orders, as you might be able to argue the actual torturers were. (Which also wasn't considered adequate at Nuremberg, but never mind... )These were lawyers who were actively engaged in creating a legal rationale for something they clearly understood was controversial and which required them to think about what they were doing on a deeper level than someone like Eichman.

The psychology may have been the same --- they were just doing their jobs. But the act of doing their jobs required a consciousness that goes beyond the average bureaucrat, even the average Nazi bureaucrat ca. 1942. They thought it through.

The man who wrote that memo now sits on the Ninth Circuit Court of Appeals and his conscious judgment is at issue every single day. This country should not have anyone who authorized twisted and depraved behaviors sitting in judgment of anyone. If Obama refuses to take action against this man, the legal profession should do it for him and disbar him. And if the congress can impeach someone over illicit oral sex, they can surely impeach a federal judge for authorizing torture.

It's bad enough that we have war criminals running free. Having one of them sitting on one of the highest courts in the land is mind-boggling.

There will undoubtedly be more on this as we read through the rest of the memos.

Update: Andrew Sullivan makes the Arendt connection too,as will many others I'm sure.

Greenwald (see update) has delved into the Bradbury memos from 2005 and they may even be more shocking when you consider that Bradbury remained in the DOJ until just three months ago.

Update II: Point of clarification. Obama's memo today specifically said that they would not prosecute any CIA operatives who were operating on the basis of these memos. I'm not all that snaguine about that, but my main objection has always been to Obama's refusing to investigate and, if the evidence is there, try those who ordered the torture. He has reiterated to day that he doesn't want to look backwards, so I don't expect that he has changed his mind about an independent counsel to investigate the Bush adminstration for torture. but his memo today didn't specifically address that.