I have several reactions to the torture memos and the frenzy that has erupted since their publication. On the one hand, some of the behavior at issue—like pushing a prisoner against a wall designed to yield to pressure—seem far too mild to deserve the label “torture.” Using that word to describe such tactics cheapens the concept. On the other hand, two of the tactics described in Jay Bybee’s memo—waterboarding and extended sleep deprivation—seem to me qualitatively different. Those tactics strike me as transparently evil, the sort of thing civilized societies should not tolerate in others and should never do themselves. When governments practice such evil, they should be called to account. That is the great benefit of the rule of law: rulers are held to the same standards as those they rule. On yet another hand (I’m hearing the music for “Fiddler on the Roof” as I type this), there is something grossly unfair about punishing people who were striving to do right in extraordinarily difficult circumstances. Mercy is a virtue not much seen in America’s legal system these days. This setting seems to me a good place to begin practicing that virtue.
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