If Its Ok To Torture Then Why Aren't You Recording It?

Marty Lederman over at Balkinization makes an eye-opening point about the scandal of the destroyed CIA torture tapes. Not just that the destruction of them was criminal but the decision to stop recording prisoner interrogations also was likely criminal because the CIA knew that what was going on was legally shady.

It’s a good point, and makes me wonder if even the right wing nutjobs who say things like CIA covert-operations chief Jose Rodriguez is a hero, would agree that all CIA interrogations should be taped. Or do people who track that far to the right feel like Col. Jessup in A Few Good Men? Namely that there are somethings the American public really doesn’t need to know about what is done in their name…and that might include being above the law.

That’s the whole point of not wanting interrogations recorded, after all. If everything is legal and above board then what the tapes would show shouldn’t shock the conscious and, perhaps even more importantly, the recordings are useful for evaluating the evidence and as a tool for future interrogations. But if what is going on can not ever see the light of day, because it is too shameful, then those who ordered the recordings stopped knew, or likely guessed, they were breaking the law.

If they want to argue that the “law doesn’t matter” or that some CIA personnel should be above the law, then I want to see that argument made in public. Because if you say the interrogations shouldn’t be taped (because they’d be too shocking for the public/our enemies to know about) it’s the same thing as saying that some people should have a license to break the law.

And if you want to redefine torture to not mean torture, then showing what is “no longer torture” shouldn’t be a problem then. For example if waterboarding or 24 hours of standing upright or making someone sit in freezing temperatures no longer is legal torture, then it should be A-OK to tape our gov’t doing it. If someone wants to argue against such mandatory recordings then how is it not an advocacy of the gov’t being allowed to break laws?

Spencer Ackerman also is on to this issue.

UPDATE: After I wrote this I found this article on The Stranger about Seattle police cars and video tapes. There's a case where there's a controversial arrest and the tape could implicate, exonerate or fail to ameliorate the situation. But the Seattle Police refuse to turn over the tapes. Again, if what the police are doing is legal, then presumably taping them should have no drawbacks.

I understand there's a big difference between CIA and local police, but, as far as I know, the what the CIA does, in all cases, is supposed to follow the law.