The array of conflicting orders coming out of the White House shows all the signs of having been drawn up by a whole battalion of lawheads, each of whom got his favorite clause into the final product regardless of whether it was consistent with all the others.
Among the many contradictory things about this latest batch of executive confusions is that, from now on, cross your heart and King's X, all interrogation techniques used on any vicious killers -- excuse me, suspects forever awaiting trial -- must accord with the U.S. Army field manual, which is a kind of gold standard for the treatment of lawful combatants captured in the field. But it may not stay pristine once this administration starts fiddling with it. Because it is now to be reviewed "to determine whether different or additional guidance is necessary for the CIA."
So instead of the field manual's elevating the CIA's standards, the CIA's methods may be used to lower the field manual's.
This is what happens once the basic distinction between lawful and unlawful combatants, once so clear in national and international law, is muddied by sophisticated lawyers confident they know better than mere precedent.
We'll know more, or maybe less, once this next study concludes. If these executive orders are any indication of what's to come, those findings will be thoroughly, correctly, legally and ethically unintelligible.
If this administration, like the previous one, wishes to proclaim an end to torture, why not? But there's no need to go into detail and define torture in excruciating detail. Or this administration, too, will produce one of those torture memos that so embarrassed the last one by carefully delineating where legitimate stress stops and torture begins, limb by limb, organ by organ. That memo read as if it had been poorly translated from the German of the Third Reich. If this administration's style is slick, its predecessor's was barbarous.
It's an old and sage principle: If it's not necessary to define something in law, then it becomes necessary not to define it. That way, those individual officials entrusted with defending the security and protecting the liberties of the people of the United States can be guided by their experience and conscience, follow their own judgment, and take the accompanying risks. Like being tried in a court of law for their actions once the emergency has passed. Nobody ever said their job was going to be easy, or their duty always clear.
Think about it: What are our people -- the good guys, remember? -- to do when confronted by the next Khalid Sheikh Mohammed who might be able to reveal information that could spare thousands of lives if only he were afforded appropriate incentive? Would it be ethical in such a case not to use a technique that looks a lot like torture to many of us?
Such are the kinds of hypothetical questions that can only be confused by detailed answers. Not every policy should be codified in advance. That is the genius at the heart not only of the Constitution of the United States but of the whole body of the English common law. Neither pretends to lay down an answer for every conceivable moral and legal quandary that could arise in some unpredictable future. Instead, broad principles are laid out and their details left to be decided on a case-by-case basis.
There is a time, and this is one of them, for a new administration to have a little more faith, a little less sureness, and just be still for heaven's sake.
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