Why the Torture Memos Upset Me


I got in a furious 140-character-at-a-time argument on Twitter with Mark Jakubik, author of the Philadelphia Criminal Defense Lawyer Blog (and the Pennsylvania Estate Planning Blog, and the Philadelphia Litigation Blog, and the Pennsylvania Family Law Blog . . . hrm) yesterday about waterboarding and torture. Stepping back, I had to ask myself: Why am I so upset up about the torture memos?

When we were recording a radio show today, Judge Ken Wise, arguing for waterboarding, said “it’s a big world out there,” as though there were things that we cloistered Americans couldn’t understand.

Unlike most Americans, I’ve lived in that big world: I spent half of my childhood overseas. My dad worked for the CIA for 25 years, and his work took the family to postings in Germany, in India, and in Thailand. So much of my view of America is  based on how it looks from  outside. Way outside — in 1987, the world was much rounder than it is now, and India was a lot farther from the U.S. There was no email or internet, and mail between New Delhi and the U.S. — through the State Department — took two weeks each way.

The threat of terrorism was constant and real during my formative years overseas. The world did not change on 9/11; Americans’ perception of the world changed. 9/11 taught Americans at home something that those of us abroad had known for a long time: the world is a dangerous place. Be watchful, and live your life.

We saw, in India in the 80s, people lined up early every day outside the Embassy to try to get visas to the United States; they’re probably still lining up there today. They weren’t there because America is safe, but because America is free.

We knew, growing up in India in the 80s, about countries that were not free. The Soviet Union, East Germany, and the rest of the Eastern Bloc, where neighbors informed on neighbors, brothers on sisters, and children on parents. Syria, Iran, Uganda, and much of the rest of the non-Western world, where brutal governments tortured accused criminals before show trials.

And we knew, we knew that America was different. America was better than that. America was the good guy. America was Jimmy Stewart and Gary Cooper and John Wayne. America didn’t have a KGB encouraging people to inform on each other. Americans didn’t torture. Good guys help the less fortunate, good guys don’t pick fights, and good guys don’t torture. There was never really any question about that. Did it make us less safe? The question didn’t even come up. It was a matter of principle.

America is free not because of government, but despite it — because, government be damned, we hold some truths to be self-evident, and Americans have been willing to defend those principles for 233 years with their lives, their fortunes, and their sacred honor.

A man needs a code to live by; so does a nation, and America isn’t living by its code. Maybe these principles have been illusory from the beginning, or maybe I’m naive to hold on to them when everyone else is willing to sacrifice them to the exigencies of the imaginary post-9/11 world. But even if they never were, or no longer are, America’s principles, they are still mine.

So I’m mad about the torture memos like I’m mad about our government turning the United States into a nation of informers, and for the same reason: because something entirely contrary to my principles has been done in my name.

As a criminal-defense lawyer, I’m doing what little I can about our slow decline into a nation of informants. There’s something more immediate I can do about our faster decline into a nation that tortures.

I have no animus against the CIA or those who work there. While I was in high school, I used to take some of the local CIA officers’ money in the Wednesday night poker game; I worked in the Office of Technical Services at CIA’s New Headquarters Building for the summer after my freshman year in college. The CIA was, and no doubt still is, staffed by good people doing tough jobs well for a lot less money than they could have earned in the private sector.

That was a long time ago — more than 20 years — but some of my friends might well have been involved in torturing KSM. I’m motivated not by a desire for retribution, but for deterrence. I don’t want to see more human beings put in prison if it can be avoided, but something has to be done so that our principles are not betrayed again.


0 responses to “Why the Torture Memos Upset Me”

  1. As usual, important issues well presented and supported. Reading it, I was stuck by how similar, perhaps worse, things are happening with regards to the Fourth Amendment, and are subject to the same arguments. The warrantless wiretapping lawbreaking has also been claimed necessary to make everyone safe, but in this case it’s only through the disclosure by a few whistleblowers that it has even come to light. No memos or legal opinions have been released; in fact, the Obama administration in Jewel v NSA is now claiming even the government can’t be sued, let alone the telecoms, in order to find out how the wiretapping was/is done, and how extensively. Another example of a freedom, hard won, diligently defended, and admired from abroad, being unlawfully abrogated by bigger government which is “saving us” by turning “us” into the very “them” we set ourselves apart from.

    Practically every argument in your post applies to this situation as well; the civil liberties that engender our freedom are what foreigners admire, not the safety their absence might enable. America is not living by its laws with respect to wiretapping either. If we are a nation of laws, someone had better start enforcing them before an objective observer won’t be able to discern how we differ from those we purport to differ from.

  2. Excellent, Mark. As usual, you make me proud.

    However, I can assure you that none of your friends — or mine — were involving in dunking KSM.

  3. There is a saying that goes something like this: America has been great because America has been good. When America ceases to be good, America will cease to be great.

    Growing up, America’s goodness and its freedom were instilled deep inside me. I don’t have kids, but if I did, I would wonder if they would think nothing is more important than safety. To hell with with safety: give me Liberty or give me death.

    Good post.

  4. And people say voting out judges like Wise was a bad thing. Never did like Wise. His sense left him with his hair.

    After hearing that he said that the only positive thing I can say about him is that he was a civil court judge and thankfully not in charge of someone’s life or liberty.

  5. This post reminds me of the speech Pericles gave in Athens (as “recalled” by Thucydides) after the city was struck by a plague during the Peloponesian war. The same sentiments of honor apply. We’re losing our freedom in other ways as well though, and those ways are just as dangerous.

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