According to today’s New York Times, Attorney General Holder is evidently considering assigning a proscecutor to determine if government personnel tortured anyone after September 11, 2001. This is a bit of a turnaround for the Obama Administration (sorry Obamaphiliacs, our man’s not great on this one), and may mean that we will hear new info about what was done to whom in the coming months. I agree with Philip Gourevitch that seeing more photos would probably result in further sensationalizing the issue (for an alternative view see Matthew Rothschild’s in the Progressive), but we do need to know more about who gave what orders to whom. With revelations this week that the CIA was told explicitly not to reveal information about interrogation plans to Congress, the need for an investigation into torture allegations becomes even more critical.
So, how will the Justice Department decide whether torture was inflicted or not and who should be held responsible? How will they operationalize these issues? I posted the US definition of torture a couple weeks ago on this site, but it’s probably worth posting again here:
“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or lawful control
18 U.S.C. 2340(1)
I am not a lawyer, so I won’t try and build a legal argument as to what facts Justice will need. What can healthcare professionals contribute? The obvious area of expertise involves determinining what gets counted as “severe” suffering. Maybe that’s a bit too obvious–is there any question whether forcing someone’s head into a barrel until they almost drown counts as inflicting severe mental suffering? See Christopher Hitchen’s now famous article in Vanity Fair if you have a questions. Sorry colleagues, but I don’t think you need an expert on this one.
Psychologists probably could be called upon for information about the “specifically intended” criteria. This seems to me a little more interesting. If we accept that Milgram’s electrocution experiements and Zimbardo’s Stanford Prison Experiments reflect realworld authority-subordinate phenomena, we have a few tricky questions to answer. (If you don’t know about these classic Social Psychology experiments, look them up–no single link will tell you what you need to know.)
First, and I think simplest, is the question of the place of intent to follow orders in the context of intent to inflict severe pain and suffering. Frightening as it may be, Milgram and Zimbardo seem to imply that most of us really don’t have a point at which our desire to not harm trumps our ability to displace responsibility. In the absence of orders not to follow orders violating specific behaviors (contravening the basic military ethic of following orders), this places blame in the hands of leadership, but I can’t say I’m too comfortable with what it says about the rank and file committing the acts.
Trickier is the situation in which many rank and file personnel apparently found themselves during the past seven years or so. Service personnel at Abu Ghraib (for instance) were reportedly told at times to get captives ready in vauge terms. How do we judge intent in this situation? There were no specific instructions, no guidebook, not even implicit orders based on visual cues. How does the following orders-torturing prisoners connection play out here?
Let me be clear here: I am not taking a stand here on whether someone should be held responsible (in either situation above) for torture given an order, however specific. As I said, I’m not lawyer, and I’m not an ethicist either (although I have been known to associate with a few at times). In some sense, we are all responsible, from those giving orders, those performing the acts, those sitting around reading about these things and saying nothing, to those who really don’t care. But that’s not a practical stand for justice (and certainly not for Justice). Practically speaking, those proximally linked to torture should be held accountable for those of us more distally responsible. The question is, how proximal should we get in this venture?