Posted by: Jeff | August 30, 2009

On Torture: What Yglesias Said

It’s the weekend, and while I can’t speak for Joe, that means blogging for me is light to non-existent. However, I’ve been meaning to do a post on the investigations into the Bush Administration’s torture policies, and this bit Matt Yglesias put up today is good enough that, in lieu of actually writing something myself, I’ll just link to it.

Not the most repugnant, but certainly the most bizarre, aspect of the most recent twists in the torture debate has been the willingness of the press to take seriously the argument that criminals who also happen to be CIA employees should not be held account for breaking the law because holding them to account might discourage them from breaking the law in the future. To wit:

Krongard, one of the few active or retired CIA officers with direct knowledge of the program willing to voice publicly what many officers are saying privately, said agency personnel now may back away from controversial programs that could place them in personal legal jeopardy should their work be exposed. “The old saying goes, ‘Big operation, big risk; small operation, small risk; no operation, no risk.’”

If you’re not in the intelligence business to be forward-leaning, you might as well not be in it,” Krongard said.

If one of the higher-ups at CAP asked me to do something that could place me in personal legal jeopardy, I would back away from doing it. That might be unfortunate for my would-be law-breaking boss, but from a social point of view this is the whole reason we have laws. If my bosses want me to commit a crime on their behalf, we as a society want me to say “sorry, I don’t want to go to jail.” But the view of the intelligence community seems to be that it would be a huge problem if this same principle applied to the CIA. Instead, they think people should feel that there will be no consequences for following illegal orders. That way, people will be more likely to follow illegal orders in the future!

It’s completely insane. But I think that direct quote from Krongard captures the essence of a mindset that seems dangerous prevalent in the intelligence world—the idea that breaking the law is their job, and that anyone who expects them to do otherwise is just being naive.

While it can be said that the symbolic point of the law is to embody a society’s values, as Yglesias says the practical purpose of the law is undeniably to deter. To discourage certain classes of behavior or action. To produce, as some opponents of further investigations have ominously called it, a “chilling effect.” Making intelligence agents second guess their actions, making them suffer angst or uncertainty over whether what they’re doing is legal, is precisely the effect we’re after. It’s a feature, not a bug.

As far as certain portions of our political and media establishment are concerned, the reason for having laws in the first place seems to have become one of those things which, as Orwell pointed out, lie right in front of one’s nose, yet require constant struggle to spot.

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