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The End of the Necessity Defense

The only way to understand how the Bush administration could have waterboarded two detainees 266 times is to go back to footnote 27 of this 2005 torture memo, which Scott Shane pointed to in the New York Times. It discusses the “unnecessary use of enhanced” interrogation techniques—unnecessary because “although the on-scene interrogation team judged Zubaydah to be compliant elements within the CIA Headquarters still believed he was withholding information.”

The memo only admits to one instance of that kind of break between the agents on the scene and HQ. But since we know that detainee Abu Zubaydah--83 waterboardings in August 2002, right after an earlier torture memo gave permission--gave up his most useful information in the weeks after he was captured, before or possibly immediately after the torture began. And so that "unnecessary" line stands for a much larger disturbing truth: The people ordering the torture didn’t care about how much pain they inflicted for how little gain. Efficacy, humanity—all of this became beside the point. The Bush administration wasn’t really standing on the ground that torture was a terrible means to the virtuous end of saving lives, as it so often claimed. There simply was no necessity defense.

That footnote also demonstrates why if we’re going to investigate or prosecute anyone, it shouldn’t be the agents on the scene. In the wake of Obama’s carefully crafted statement fending off prosecution for anyone who relied in good-faith on the DoJ memos, some commentators have called for looking into whether CIA agents could go down for torturing before the memos were written in August 2002. This seems wrong to me. If we went that route, we’d get around version of Abu Ghraib: a few low-level scapegoats standing in for their far more culpable superiors. Much more interesting is another possibility Obama left open: going after the lawyers who wrote the memos and the officials who demanded and approved them—David Addington, Alberto Gonzales, Jim Haynes. Rahm Emanuel told George Stephanopoulos on Sunday that Obama believes that “those who devised policy… should not be prosecuted either." But what about disbarment? And impeachment for Jay Bybee, the torture memo author who got life tenure on the 9^th Circuit? It would be a start. If you think these memos are good lawyering, then you don’t deserve to be a lawyer. That’s a lesson the bar should desperately want to impart.