Editor's Notebook - David Crisp

It’s a shame that the state’s largest newspaper has taken so soft a stance on torture.

In an editorial on Sept. 4, The Billings Gazette called on U.S. Attorney General Eric Holder to hold off on investigations of CIA misconduct, at least until he gets a Senate committee report. That’s just wrong.

This is not a close call. The United States, like all other civilized nations, is obligated under the International Convention Against Torture, signed by President Reagan in 1988, to fully investigate credible allegations of torture committed by the U.S. government and its agents. We have no legal option under the convention except to investigate.

Remember that the attorney general already has decided not to prosecute CIA agents who relied on the so-called “torture memos” to justify using “enhanced interrogation” techniques against suspected terrorists.

Those techniques, a sad legacy of the Bush administration, were bad enough: They permitted, for example, detainees to be waterboarded, stripped naked, deprived of sleep, slammed against walls, handcuffed in stress positions while wearing only diapers and doused with water as cold as 41 degrees.

The lawyers who wrote those legal memos have been roundly criticized for their work by legal experts, who say that the memos are so badly drafted that they are, at best, inept enough to justify disbarment and, at worst, a deliberate attempt to subvert international and U.S. law.

But no matter. Holder isn’t going after people who adhered to those memos. He is investigating only those who transgressed even those generous guidelines, including carrying out mock executions, choking to the point of unconsciousness, beating prisoners with rifle butts, threatening prisoners with handguns and power drills, and threatening to kill the children and rape female relatives of prisoners. Dozens, perhaps even more than a hundred, prisoners died of abuse while in U.S. custody.

Those who oppose prosecution of these acts have a litany of weak defenses:

1. Prosecutions would damage the morale of the CIA. But the whole purpose of criminal prosecutions is to punish those who break the law and deter those who are thinking of breaking the law. Criminals ought to be demoralized.

2. Torture was effective. This is a dubious and irrelevant claim. Experienced interrogators have said that torture actually is ineffective because it produces large amounts of bogus information from victims willing to say anything to make the pain stop. There also is evidence that U.S. torture has been used as an effective recruiting tool by terrorist groups.

But that’s all beside the point: The torture convention holds that “no exceptional circumstances whatsoever” can be used to justify torture.

3. It wasn’t really torture. Clearly, much of what took place was torture, by any rational reading of U.S. law and international treaties. But let’s not play word games. President Reagan said explicitly that the goal of the Convention Against Torture was to prevent torture and “other inhuman treatment or punishment.” One wonders whether a candidate with such views could be elected to office in today’s Republican Party.

4. It’s all politics. No, it is politics only if we don’t follow our legal obligation to investigate because we fear political fallout. The Gazette properly said that President Obama has too much on his plate to get involved in investigating the previous administration.

That is correct; Obama should stay out of it, just as he should have stayed out of disorderly conduct disputes in Massachusetts. He should allow the Justice Department to do the work it is legally obligated to do, without interference.

5. Terrorists deserve to be tortured. I’ll leave it to philosophers and theologians to work out the moral dimensions. But the law is clear: No one can be tortured. Period.

And, sadly, there is little evidence that many of those who were tortured had done anything wrong. In at least a few cases, quite clearly, we have been guilty of torturing innocent people to death.

I repeat: This is not a difficult question. We have only two legal options: We can investigate torture allegations thoroughly and prosecute as needed, or we can renounce the Geneva Conventions, the Convention Against Torture and hundreds of years of American tradition and surrender our position among the world’s civilized nations.

The matter is hard only because the truth is painful. We suffered a terrible attack on Sept. 11, 2001, and we lost our nerve. When we lost our nerve, we lost our moral bearings, and we gave in to an old and profound human weakness: We wanted to hurt those who had hurt us, and damn the consequences.

Now we risk giving in to another human weakness: Pretending that the past never happened. But those who forget the past are condemned not only to repeat it but to be punished for it.

Our punishment, no matter how long we may try to evade it, will be sure and certain. The time to get back on the right path is now.