As the recent revelations of the torture memos prepared by the US Department of Justice (DOJ) to the CIA arguing the legality of waterboarding and other highly questionable techniques have come to light over the past couple of weeks, there has been much criticism, particularly from political commentators from the left, about the Obama administration's decision not to prosecute individuals who used unlawful interrogation methods to extract information. The issue of prosecuting or the decision not to prosecute such operatives raises certain issues about resistance that I shall briefly address.
First, the calls for the prosecution of these operatives speak to an (reasonable) expectation that CIA operatives should have known better than to engage in such methods, even if based on a specious set of documents prepared by the DOJ. Implied from the critiques is that the operatives had an obligation to (conscientiously) refuse to carry out the orders. Such critiques certainly reinforce the idea that resistance to (manifestly?) illegal orders is not only legitimate but expected and required.
Second, President Obama's decision not to prosecute the operatives (who stayed within the four corners of the legal memos as though the operatives weren't given latitude to act in a brutal fashion already) delegitimizes resistance. It does so in that such operatives, who should have defied orders to use unlawful interrogations techniques are now told that there will not be any adverse consequences for engaging in unlawful orders, regardless of the speciousness of the legal advice justifying the tactics. It sends the implicit signal that operatives and interrogators are expected to follow orders notwithstanding their illegality and contravention of international agreements that the United States is party to. Oddly and tragically, if there are no prosecutions of Bush administration officials under the Obama administration, it will have managed to however legitimize the Bush administrations flagrant defiance of international law.
As Frederic's postings below demonstrate of course, not all government employees/actors supported such illegal measures. But defiance to such illegal orders can come with great costs, both personally and professionally. Moreover, the President's decision to not pursue prosecutions of those who committed the torture sends the message that there are no criminal repercussion from refusing to comply with illegal orders.
First, the calls for the prosecution of these operatives speak to an (reasonable) expectation that CIA operatives should have known better than to engage in such methods, even if based on a specious set of documents prepared by the DOJ. Implied from the critiques is that the operatives had an obligation to (conscientiously) refuse to carry out the orders. Such critiques certainly reinforce the idea that resistance to (manifestly?) illegal orders is not only legitimate but expected and required.
Second, President Obama's decision not to prosecute the operatives (who stayed within the four corners of the legal memos as though the operatives weren't given latitude to act in a brutal fashion already) delegitimizes resistance. It does so in that such operatives, who should have defied orders to use unlawful interrogations techniques are now told that there will not be any adverse consequences for engaging in unlawful orders, regardless of the speciousness of the legal advice justifying the tactics. It sends the implicit signal that operatives and interrogators are expected to follow orders notwithstanding their illegality and contravention of international agreements that the United States is party to. Oddly and tragically, if there are no prosecutions of Bush administration officials under the Obama administration, it will have managed to however legitimize the Bush administrations flagrant defiance of international law.
As Frederic's postings below demonstrate of course, not all government employees/actors supported such illegal measures. But defiance to such illegal orders can come with great costs, both personally and professionally. Moreover, the President's decision to not pursue prosecutions of those who committed the torture sends the message that there are no criminal repercussion from refusing to comply with illegal orders.
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