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

Cassandra Burke Robertson, Case Western University School of Law

42 Case Western Reserve Journal of International Law 389 (2009)


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." BEAK 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 25 and 29 there was a redefinition of cultural commitments associated with partisan identity. In 24 there was still a broad anti-torture American identity, but that identity became fragmented by 28, 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.