Olbermann goes Overboard

I knew he'd lose it as soon as he didn't have Bush to kick around anymore

I've long been a fan of Keith Olbermann. Of all the political commentators on TV, he was the only one who seemed to muster the appropriate amount of outrage in the face of the abuses and crimes of the Bush administration. That said, I've long thought that Olbermann is a bit of a blowhard. He often seems overly self-righteous and eager to be angry, and he often comes across more as less of a crusading journalist and more of a self-aggrandizing fop.

Here's the sort of thing I'm talking about:



The problem here is not Olbermann's tone per se. If he had gotten his facts right, his tone would be exactly right. The problem here is that Olbermann appears to have selected and massaged the facts to fit his tone.

All Obama did was decline to prosecute CIA officers who acted within published guidelines for interrogation. And while waterboarding has since come to be defined as illegal in most situations, at the time the interrogators had good reason to believe that the techniques they used were legal (and therefore not torture).

CIA agents are still culpable when they knowingly violating the law or when they obey orders that are obviously illegal. Obama has kept open the option of prosecuting officers who went beyond what the guidelines allowed and the officials who helped develop the guidelines.

As for the pinheads who say that this shows Obama is as bad as Bush, consider this: Bush said that waterboarding is not torture and authorized its use. Obama says that it is torture and he's halted its use. That seems like a pretty big difference to me.

Olbermann would have us believe that we must prosecute the CIA officers who engaged in torture in order to prevent even worse abuses in the future. But his reasoning depends on the post hoc, ergo propter hoc fallacy: the idea that because the Germans weren't punished after World War I (as if), they started World War II. Because there was no attempt to end discrimination in the South after the Civil War (as if), black leaders were assassinated in Southern cities a century later.

But few historians would agree that Hitler came to power because France and the United Kingdom were too lenient with the Germans after World War I. In fact, most would argue that the harsh terms dictated to the Germans were a major reason why Hitler was able to rise to power. And if Olbermann traces the assassination of black leaders in the South to the lenient treatment that Lincoln and Johnson extended to the ex-Confederates, how does he explain the assassination of black leaders in the North? Does anyone really think that the South could have been occupied until racism ended in the South, or that the struggle for civil rights could have been bloodless? And if the Nuremberg trials were as effective a deterrent as Olbermann says they were, how do we explain the subsequent slaughters in Cambodia, Rwanda, Guatemala, Sudan, etc.?

In short, Olbermann fails to demonstrate that a failure to act punitively necessarily leads to greater abuses in the future. In my opinion, the demonstrable failure of waterboarding to produce reliable intelligence will do a lot more to prevent torture in the future than would the conviction of a few interrogators. After all, if torture isn't effective, then what's the point?

Also, think of the consequences of punishing the agents who did the waterboarding. If we punish people for carrying out what they reasonably believed was a legal order, then we create a legal framework under which a law enforcement, intelligence, or military officer could refuse to obey orders, claiming that the order could be illegal, even though a reasonable person would have thought that the order was legal.

In other words, punishing the CIA officers who stayed within published guidelines for interrogations would have the effect of severely undermining the discipline and chain of command necessary for institutions like the Army and the CIA to function.

Finally, let's consider the morality of sending people to jail who had good reason to believe that they acted within the law, just because we want to set an example. We're talking about real people here, not characters in a morality play. By saying that we need to punish them not because justice demands it, but simply in order to create a deterrent, isn't Olbermann engaging in the same sort of moral reasoning that led Michael Ledeen and Jonah Goldberg to say, "Every ten years or so, the United States needs to pick up some small crappy little country and throw it against the wall, just to show the world we mean business"? Isn't it the same reasoning that leads Israel to bulldoze the houses of terrorists' families, even if these families haven't supported or engaged in terrorism? In effect, what Olbermann is saying is, "whether they deserve it or not, these agents need to be thrown against the wall, just to show the CIA that we mean business."

I guess if I were Olbermann, I'd have to conclude with a coda that goes something like this:

You, SIR, are telling us that we must abandon every principle that this nation once stood for. You, SIR, are saying that in order to protect our civil liberties by depriving men and women who volunteered to defend this country of theirs. But you can't get to the high road of morality by traveling in the gutter of injustice. That gutter leads only to a sewer, and that sewer, SIR, is exactly where you and your ilk belong!

Actually, I think maybe that was a bit too tame.

***

While Obama left open the possibility of prosecution for the agents who went beyond the interrogation guidelines and the people who developed those guidelines, I don't think that will happen. I'm not happy about that, but I think it's what the law demands. That's because it's extremely difficult to prove that the lawyers who developed the interrogation guidelines acted illegally. Unless you can demonstrate that no reasonable person could have believed that waterboarding isn't torture, I don't see how such a prosecution can be successful.
As for the few agents who went beyond the guidelines, it all depends on how far beyond the guidelines they went. But it's hard to see how justice would be served or future crimes would be prevented by the scapegoating of a few low-level operatives.

(cross posted at appletree)