Question of responsibility

I believe that there is a significant moral distinction between interrogators and those who legally authorized them to torture.

The difference is two-fold. First, the authors of torture regime are authors. They shaped and otherwise made possible the kinds of actions in question. Generally speaking, we believe that the authors of actions are chiefly responsible, and hence chiefly to blame, for them. On my understanding, the CIA frequently abstained from certain techniques and carried them out only after requests for legal guidance were returned in the affirmative. So, from what we know, the following counterfactual is true: were it not for the OLC memos and the political authority of Cheney’s office, America’s torture chambers would not have existed (I’m leaving aside the evidence that it existed in places other than Bagram, Abu Ghraib and Guantanamo). Secondly, there is a significant difference in authority and power between the two classes, and this can generate conditions of duress which can be mitigating and perhaps excusing. There was an incredible amount of pressure placed on the intelligence community to manufacture results, and given the structures of authority in place, that pressure could not have been just ignored—at least not without consequences.

To be sure, these two considerations alone won’t settle the whole question of responsibility if only because the interrogators aren’t automatons—they too author their own behaviors. This is quite clear in interrogation, since it leaves much room for maneuverability and hence deliberation—and all this needs to be decided upon, and hence authored, by each individual interrogator. Moreover, the degree of exerted pressure is unknown, and independently of that, it is difficult to imagine that it amounted to a form of duress which would be excusing.  In the end, one imagines, they could have walked away from the torture chambers and obeyed the Socratic doctrine to do no wrong intentionally.  

Nevertheless, with the question of blame left open for the interrogators, we can still make the comparative judgment that the degree of culpability is greater for the authors of the torture regime than for those who carried it out.  Another way of seeing this is to say that it was the legal duty of the interrogators to carry out legally authorized directives, but not the legal duty of the authors to write what they did.  In fact, as many lawyers have pointed out, the memos express legally incompetent advice.  Even if we don't share the latter judgment, the distinction in obligations offers yet another not insignificant dimension along which to damn the lawyers before the interrogators.         

I believe both points speak against the view, held by Spain’s attorney general, that if prosecutions are to go forward, they should be launched against individual interrogators and not the authors of the regime.  Obama has finally made it clear (even after his attack dog Rahm Emanuel suggested otherwise just last weekend) that he believes otherwise.  In response to questions this morning, he asserted that any investigation and prosecution of the torture authors will be, as it should be, the Attorney General's office to decide and pursue.  Hopefully, and as early indications of Holder already suggest, our AG is less politically driven than Spain's AG.