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Allison Silver Headshot

Making Torture Lawful?

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The argument is being played out in front of us.

Dark deeds were done at the leader's behest, to achieve desirable, even honorable, goals. The nation's security and stability depend on this, and terrorism and national upheaval averted. So, though unlawful, it all seems necessary. The leader clearly wants it -- and is asking agents to do it. Accepting public responsibility, however, is another matter.

But this is not about torture and the Bush administration's use of "enhanced" interrogation methods that were outside of U.S. law and the Geneva Conventions. This is not about the wide array of unlawful actions that the Bush team asserted were vital to save the United States from another Al Qaeda attack.

Instead, this is a play, Mary Stuart, written in 1800 by Friedrich Schiller, the German playwright and poet. This riveting drama, which just opened on Broadway to glowing reviews, presents a powerful tale: Queen Elizabeth I clearly wants her cousin, Mary Stuart killed, but doesn't want to be held responsible. She wants it done -- without having her fingerprints on it.

Elizabeth knows that Mary has a strong claim for the British throne and, as a fervent Roman Catholic, sees herself as the rightful ruler to lead England away from Protestant apostasy. Though Mary has long been imprisoned, her followers are continually plotting. And Mary, a legendary beauty, also has a strong claim for the affections of Elizabeth's current favorite, the Earl of Leicester. Elizabeth, the Protestant on that throne, wants this trouble ended.

Schiller understands that, for many, political is always personal.

Elizabeth, a skillful politician as well as a jealous woman, knows how to achieve her ends. During one remarkable scene, rage at Mary has finally propelled the Tudor queen to sign her cousin's death warrant. But it still has to be carried out -- and Elizabeth has no John Yoo at the ready.

In fact, the young courtier whose job this is won't even touch the death warrant without the queen's explicit instructions. True, she is holding the document out to him, but before he will take it, the courtier asks if this means she wants him to execute it now. He says he must hear her say it -- for he knows that killing a queen, even one held prisoner, is never done lightly. This document is too hot and he knows, in the end, he could get more than singed. Regicide is dangerous business.

Does she want him to keep the signed warrant in reserve, awaiting further orders? Does she want him to execute it immediately? Does she want him to execute it at some future date? Elizabeth won't respond directly. She just keeps saying that she has signed it. Even in her rage, she is too much the political animal to say the words.

Earlier in the play, Elizabeth had secretly commissioned someone she believed was a Protestant spy, her double agent in a nest of papist insurgents, to carry out this murder. She knew his actions would not lead back to her. But this courtier, whose official job is to carry out her warrants, is another matter entirely.

Ultimately, the courtier does take the warrant, though he still is still unsure what to do. The queen's close adviser, Lord Burleigh, does know, however. He grabs the document and rushes through the orders of executions. Though Elizabeth later vacillates again, insisting she did not mean it to be carried out, even orders the courtier executed and Burleigh exiled -- Burleigh understood what his leader wanted. So he did it.

That, in all too many cases, is how power has been executed. A president would say he wants something done, some goal attained, and his senior staffers go and do it. There was a name for this sort of maneuver -- plausible deniability.

But sometimes the matter is so important -- or so illegal -- that it requires direct orders from those in charge. Plausible deniability will not cut it. Actual written permission must be obtained, perhaps in a presidential finding, to address any misinterpretation that this was the act of a freelancer, or a renegade -- or even a few bad apples.

Schiller in 1800 knew why Bush administration officials would sign off on these infamous torture memos.