Beyond the Torture Memos: Perceptual Filters, Cultural Commitments and Partisan Identity

16 Pages Posted: 4 Oct 2009 Last revised: 26 Apr 2014

See all articles by Cassandra Burke Robertson

Cassandra Burke Robertson

Case Western Reserve University School of Law

Date Written: October 2, 2009

Abstract

Who should face accountability for the mistreatment of prisoners in the war on terror? Five years ago, the scope of prisoner abuse at Abu Ghraib was first revealed; this year, the Justice Department admitted that a single suspect was waterboarded 183 times. Some at the bottom of the political hierarchy have already been convicted for their participation in prisoner abuse. Those closer to the top of the political hierarchy also find their actions subject to scrutiny, as the Department of Justice's Office of Professional Responsibility is carrying out an investigation into the professional conduct of the lawyers who authored the memos permitting "enhanced interrogation."

This article argues that efforts to hold the memo authors professionally accountable for their advice will face two difficulties. First, it will likely be difficult to prove that the memos were written in bad faith. While legal scholars and other lawyers agree nearly universally that the memos represent bad legal advice, bad advice does not necessarily equate to bad-faith advice. The existence of perceptual filters and deep partisan identification may have shaped the lawyers' views of the situation in ways that appear unfathomable to outsiders. Second, even if the Office of Professional Responsibility finds evidence of professional misconduct, there is a risk that efforts to hold the memo authors accountable will lack political legitimacy. Onlookers will also view such efforts through their own perceptual frameworks and partisan commitments, and may therefore not agree that the memo authors' conduct deserves to be punished. In particular, this article argues that between 2005 and 2009 there was a redefinition of cultural commitments associated with partisan identity. In 2004 there was still a broad anti-torture American identity, but that identity became fragmented by 2008, with support for torture breaking along partisan lines. In time, cultural commitments may again shift to allow a united American identity that condemns torture. Until that happens, however, it is likely that accountability efforts will further entrench partisan animosity.

Keywords: Cognitive Biases, Partisan Kinship, Lawyers and Clients, Identity Theory, Independence, Judgment, Situational Effect, Identity Salience, Torture Memos

JEL Classification: K49

Suggested Citation

Robertson, Cassandra Burke, Beyond the Torture Memos: Perceptual Filters, Cultural Commitments and Partisan Identity (October 2, 2009). 42 Case Western Reserve Journal of International Law 389 (2009); Case Legal Studies Research Paper No. 09-26. Available at SSRN: https://ssrn.com/abstract=1481907

Cassandra Burke Robertson (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3302 (Phone)

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