It just recently came to light that the CIA has destroyed nearly 100 terror interrogation tapes, a much higher number than had ever been publicly acknowledged before by the agency. The revelation came in a letter filed in New York by government lawyers, as part of a lawsuit filed by the American Civil Liberties Union (ACLU) seeking more information about the Bush administration terror interrogation tactics (click here to read about the case: http://news.yahoo.com/s/ap/20090302/ap_on_go_ca_st_pe/cia_interrogations). The government lawyers making the admission claim that the tapes were destroyed in order to shield the identity of the CIA interrogators, because at the time these interrogations were performed, some of the same interrogation tactics were increasingly being attacked as illegal (for example, waterboarding).
I truly believe that the CIA interrogators were between a rock and a hard place. They were being ordered to harshly interrogate terror suspects, using tactics such as waterboarding. Insubordination and refusal to carry about the interrogations in such a manner could have resulted in harsh sanctions for the interrogators, including the possibility of being fired. On the other hand, their human dignity, sense of morality, and even partial and shallow understanding of international law should have led them to realize that such harsh interrogation tactics were illegal and morally reprehensible.
Who should be held accountable for these interrogations, now that we know that they were carried out, without knowing who exactly within the CIA acted as the executioner? I believe that the high-ranking policy makers within both the Bush administration and the CIA should face criminal liability. They are the ones responsible for these regrettable choices, and they are the ones who should now respond to the public about why they made those choices. The theory of command responsibility under international criminal law fully supports the idea of holding the commander liable for acts committed by his or her subordinates. Moreover, the deterrence theory of criminal punishment also points toward imposing liability on the "commanders." As I wrote a few days ago in Part I of this post, President Obama needs to install a policy of zero tolerance toward torture committed by any official of the United States. That policy can only function if the authors of torture planning are ultimately held accountable, "without exception or equivocation."