Why We Must Judge

It’s not all relative: Without judgment, a society loses its sense of justice.

In 2004, The New York Times reported that numerous captured Iraqi military officers had been beaten by American interrogators, and that Major General Abed Hamed Mowhoush had been killed by suffocation. The Times has also published the stories of the so-called “ice man” of Abu Ghraib, Manadel al-Jamadi, who was beaten and killed while in U.S. custody, his body wrapped in ice to hide evidence of the beatings; of Walid bin Attash, forced to stand on his one leg (he lost the other fighting in Afghanistan) with his hands shackled above his head for two weeks; and of Gul Rahman, who died of hypothermia after being left naked from the waist down in a cold cell in a secret CIA prison outside Kabul. And the paper has documented the fate of Abu Zubaydah, captured in Pakistan, questioned in black sites and waterboarded at least 83 times, before being brought to Guantanamo, as well as the story of Khalid Shaikh Mohammed, waterboarded 183 times.

What was missing from these stories, published in the newspaper of record? A simple word: torture.

The omission is standard practice at the Times, just as it is at The Washington Post, NPR, and most U.S.-based media. Clark Hoyt, formerly ombudsman at the Times, defended the refusal to use the word torture and the decision to employ the language of “enhanced interrogation techniques,” a euphemism pioneered by the Bush Administration and embraced by the Obama Administration. For Hoyt, whether banging someone’s head against stone walls to elicit information is torture is in the eye of the beholder: “This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?” Alicia C. Shepard, ombudsman at NPR, calls torture “loaded language.” To name simulated suffocation torture means to “unilaterally make such a judgment,” something Andrew Alexander, ombudsman at The Washington Post, argues journalists must avoid. In short, since the definition of torture is a matter of debate, we can’t publicly speak of torture. To judge an act to be torture is beyond our capacity and outside our jurisdiction.

Judgment is in short supply, and not just in the media. President Obama has made it clear that he has no interest in prosecuting and determining the responsibility of the torturers. As he said in April 2009, “This is a time for reflection, not retribution.” “Nothing,” he said, “will be gained by spending our time and energy laying blame for the past.” And so, seven years after the first death by torture in the war on terror, six years after the photos from Abu Ghraib, two years after Vice President Dick Cheney admitted that he personally authorized waterboarding and other techniques of torture, and two years after Barack Obama was elected, the vast majority of those who conceived, justified, and carried out the U.S. policy of torture—acts that are inhuman, unjust, and illegal by both international and domestic law—have not been accused, tried, or judged. Eleven low-ranking Army personnel were court-martialed after Abu Ghraib. For the murder of Major General Mowhoush, Chief Warrant Officer Lewis Welshofer Jr. was convicted of negligent homicide, but given no jail time and not even discharged from the Army. Aside from these scapegoats, the vast majority of those involved in the torture regime continue to work for the government. While Obama worries about a rush to judgment, our real problem is that we have abdicated our right and our duty to judge at all.

In spite of Obama’s call at his inauguration for a “new era of responsibility,” we are suffering a culture-wide crisis of judgment. And not just when it comes to torture. Those who employed fancy lawyers to evade taxes are offered amnesty instead of judgment if they return their money to the United States. We frequent restaurants knowing that affordable food is subsidized by underpaid illegal help in the kitchen and we pay nannies and construction workers in cash, rationalizing our violation of both the law and our moral beliefs that everyone deserves health care and other benefits. In academia, professors have so fully abandoned their duty to judge that more than 50 percent of the grades at Harvard University are in the A range. And no Wall Street firm that has received a bailout has fired its CEO.

There are few better poster children for our crisis of judgment than Ken Lewis, the CEO who drove Bank of America to insolvency. Lewis was not fired, nor has he been compelled to recoup the billions in bonuses he authorized for Merrill Lynch executives in 2008, the year Bank of America acquired the all but bankrupt Merrill Lynch. Indeed, all that “Pay Czar” Ken Feinberg demanded was that Bank of America limit the average size of bonuses in 2009 to $6.5 million. And when Lewis himself finally resigned, he left with his own $125 million golden parachute, on top of the many millions he took home while bankrupting his company during the boom years. While everyone acknowledges that “mistakes were made,” as Ronald Reagan might have put it, no one, it seems, is responsible.

The Fear of Judging

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