Tortured Logic

Guest Blog by Jennifer McKitrick

[cross-posted at JenMc’s Blog]

1. Water boarding is torture.

2. The Bush administration authorized water boarding.

3. Authorizing torture is a punishable offense.

Therefore… ?

What’s the rationale for denying the claim that someone from the Bush administration is liable to criminal prosecution?

• We should look forward, not backward (Obama).

I tried telling that to the judge when I was in traffic court: “That speeding I did – that’s in the past. The important thing is that I will obey the speed limit in the future.” It didn’t fly.

• We shouldn’t criminalize policy disagreements (Holder).

But what if it’s someone’s policy to break the law? It’s not their disagreeing with you that’s criminal – it’s the crime that they committed.

• The Bush administration didn’t know that what they were doing was illegal.

Ignorance of the law is no excuse. I told the judge in traffic court that I didn’t know that going 60 mph on that particular stretch of road was illegal, but that didn’t work either.

• The Bush administration acted in accord with legal counsel that said that what they were doing was legal.

Oh! The lawyers said it was OK! Why didn’t you say so? So, if I hire a lawyer to tell me that speeding is legal, I can drive as fast as I want?! Yippee!

It seems to me that the laws that protect people from being tortured should be at least as strong as the laws that protect people from my driving too fast.

And it seems to me, if something is against the law now, and the reasons it is against the law were in play at time t, then that thing was against the law at time t.

So, are there any reasons that make water boarding against the law now that weren’t in play in the last several years?

A different administrative “policy”?

What was that I heard, once upon a time, about a separation of legislative and executive branches…? If Obama’s policies can deem water boarding to be against the law when it was previously not a punishable offense, then it would seem that they would be justified in not having those policies if that were their prerogative.

Lucky for us, they’re nice guys.
Let’s hope so, since they seem to basically agree with the Bush administration about the executive being above the law.

It reminds me of when my co-worker opined that our boss was a very judgmental person. When I told her that he didn’t seem that way to me, she said “Well, it’s not obvious, since most of his judgments are positive.”