Commentary: Torture must be investigated

[ProSense]

Commentary: Torture must be investigated

By Oren Gross
Special to CNN

Editor's note: Oren Gross is Irving Younger Professor of Law and director of the Institute for International Legal & Security Studies at the University of Minnesota Law School. Between 1986 and 1991, he was a senior legal advisory officer in the Israeli Defense Forces' Judge Advocate General's Corps. He is co-author of "Law in Times of Crisis: Emergency Powers in Theory and Practice" with Fionnuala Ní Aoláin.

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Al Qaeda does not pose a threat to the United States' (or any of its allies') existence. Its real threat lies in provoking us to employ authoritarian measures that would weaken the fabric of our democracy, discredit the United States internationally, diminish our ability to utilize our soft power and undermine our claim to the moral higher ground in the fight against the terrorists.

In other words, the critical threat is not that the United States would fail to defend itself but that it would do so too well and in the process become less democratic and lose sight of its fundamental values. "Whoever fights monsters," warned Friedrich Nietzsche, "should see to it that in the process he does not become a monster. And if you gaze long enough into an abyss, the abyss will gaze back into you."

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The Bush administration, euphemistically seeking to employ "coercive" interrogation techniques against al Qaeda detainees, pursued three major strategies of implausible deniability to bypass the uncompromising legal ban: It denied that certain national and international laws that prohibit torture applied to certain categories of detainees (a position squarely rejected by the Supreme Court in its 2006 Hamdan decision), it denied that the "United States" was engaged in torture (while, at the same time, outsourcing the business of torture to other countries), and it also denied that the United States was engaged in "torture."

Orwellian legal constructions and definitional wizardry by lawyers demonstrating small-mindedness, technocratic reasoning, ideological motivation, and I-just-followed-orders mentality facilitated this last claim.

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