I read Eric Posner’s second response to my earlier two posts as a (confusing) concession. Whereas Posner in his co-authored article wanted to legalize torturous interrogation, Posner now seems only to oppose ex post political pardons. That is fine with me. I too think that political pardons are problematic in the context of torture.
This then takes us to the next question: whether there should be criminal prosecutions for the use of torturous interrogation techniques described in the “torture memos.” This issue is likely to heat up in the next few days with the forthcoming Office of Professional Responsibility report advising against prosecutions and the Obama administration’s decision to release 44 additional pictures of detainee abuse in prisons in Iraq and Afghanistan during the Bush era. My colleague Richard McAdams had begun a conversation about this question here.
Frankly, I was hoping to get beyond Posner and Vermeule, but in researching this next question I came across their 2004 Wall Street Journal op-ed defending the authors of the “torture memos.” In their op-ed, “A 'Torture' Memo And its Tortuous Critics,” Posner and Vermeule argue that “the memorandum's arguments are standard lawyerly fare, routine stuff.” On the question of torture, Posner and Vermeule contend that the authors of the memos “provided reasonable legal advice and no more, trusting that their political superiors would make the right call.”
I’m not entirely convinced by their argument.