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The Slippery Freefall

Dahlia Lithwick’s recent article in Slate covers developments in a couple of federal lawsuits brought by American citizens claiming they were unlawfully tortured and detained by our military while working in Iraq. (Both the trial court in one case, and the 7th Circuit in the other, held that former Defense Secretary Donald Rumsfeld is not immune from suit under the facts alleged.) Lithwick’s piece focuses on Donald Vance and Nathan Ertel, two American contractors who, in 2006, told the FBI about suspicious activity by their Iraqi employer. The military raided the employer and discovered a weapons cache. They then imprisoned and tortured the two American whistleblowers in an American military detention facility. The stated reason: they worked for an Iraqi employer that engaged in suspicious activity.

This is not a post about why torture is bad, or whether or not it should ever be permitted. Either you believe that a society that sanctions torture has abandoned all pretenses to moral authority, or you don’t. Using this case–with its American victims–as an example of how a limited torture policy for “bad guys” should be carefully monitored to prevent the unfortunate torture of “good guys” would very quickly move us into some dicey ethical territory that is well beyond this author’s ability to navigate.

Instead, I am thinking about all of the people who contributed to the imprisonment and torture of Vance and Ertel. I’m thinking about the President, and his defense secretary, about the law makers, the bureaucrats, the generals and the corporals. I’m thinking about every poll respondent who believed that the only way to defend America is to carefully, cautiously, violate its highest principles. Certainly many of them understood there are dangers when stepping away from the rules of civilized conduct, even if just for short time, in a dangerous place, against a virulent enemy. But could any of them have imagined that the slippery slope would actually be a lawless freefall? Would they believe that just three years after the invasion, U.S. military personnel could detain and abuse other Americans for the crimes they themselves reported? Who would have guessed that Kafka was a chump who actually underestimated the cruelty and mindlessness of a government that operates outside the law?

Maybe this will end up being a minor history lesson, the decisions of a former administration, largely discredited for its hyperbole and misinformation. Or maybe it’s psychology, an example of how the most dangerous person is the one who is both afraid and powerful. I’m interested in the poly sci implications: will this example discourage future crisis leaders from tossing aside the rules? But if we are very, very fortunate, this episode will revolutionize linguistics, forever banishing “slippery slope” in favor of “swift, inevitable human result.”

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Articles posted in the Cockle Blog are for informational purposes only. Nothing in the Cockle Blog should be taken for legal advice. In fact, Cockle Blog articles are not a substitute for proper legal research conducted by licensed attorneys.

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