Torture and the torture memos are once again in the news. As Jon Stewart of the Daily Show has often pointed out, after WWII the United States executed Japanese soldiers for water boarding American soldiers. Currently it seems unlikely that the Americans involved in torture will even be prosecuted for crimes.
The individuals who actually inflicted the torture cannot, obviously enough, rely on the defense that they were just following orders. While I am not a legal scholar, I think that the precedent set by the Nuremberg trials should close off that option.
The most viable defense for the torturers is that they were informed by their superiors that their actions were legal and acceptable. While this might seem to be on par with the claim that they were just following orders, there is an important distinction to be made.
When a person asserts that he is not responsible because he was just obeying orders, he is denying his own agency as a person. Put less formally, he is saying that he was obligated to set aside his own conscience and will in favor of that of his superior. Obviously, saying “I did it because I was told to do it” does not get a person off the hook. Unless, of course, he is incapable of making decisions on his own or there are extenuating circumstances.
When a person asserts that he is not responsible because he was told that his action was legal and right, the implication is that he intended to do what was legal and right but was misinformed by those who were supposed to know. In this case, the defense has some plausibility. Matters of law can be rather arcane and it is not unreasonable to expect that people would need to rely on experts to tell them what is legal and illegal. Morality can also be rather difficult and hence there can be a need to rely on the (alleged) experts to distinguish between right and wrong. As such, the torturers could claim that they should not be held accountable for their misdeeds because those responsible for informing them about the permissibility of torture misled them. As such, the lion’s share of the responsibility for the misdeeds belongs to the people who told the torturers that it was okay to torture (or that the torture was not torture).
This defense does have a degree of plausibility. Consider, if you will, the following analogy. Suppose that you are driving and you come to an intersection blocked by a police car. You stop, but then the officer motions for you to drive by him. However, shortly after you drive past him, you are arrested because you just entered an area that has been put off limits because Obama’s motorcade is driving through. In this case you would hardly be responsible-the officer was responsible for telling you that you should not drive past him. As such, he is in the wrong rather than you. After all, how could you possibly know that Obama was driving through just then? Of course, if the information about Obama’s visit was readily available and you could reasonably be expected to know, then you would bear some responsibility for your decision to drive past the officer.
As the analogy shows, this defense hinges on the person being able to claim justifiable ignorance. In other words, it has to be unreasonable to expect the person to know the legal or moral status of the action on their own and they need to justifiably dependent on the knowledge of another. As such, those who were involved in torture would need to show that they did not have the knowledge needed to sort out matters for themselves, that they could not reasonably be expected to have such knowledge and that those responsible for imparting such information misled them. If these conditions can be met, then it would be unreasonable to prosecute these people. If these conditions cannot be met and torture is illegal, then these people should be prosecuted. If these conditions cannot be met and torture is evil (which it certainly seems to be) then these people would be guilty of evil deeds.
Naturally, the next question is what to do about the people who might have misled the torturers. But, that is a topic for another time.