Journalist Jacob Weisberg's New Torture Defense: A Good Offense

Jacob Weisberg, the talented journalist, editor and opinion leader, floats a very dangerous idea in the new issue of Newsweek.

Weisberg argues that because illegal torture was essentially America's official policy after 9/11, operating with complicity from the general public, it would be wrong to enforce US laws against torture now.

This argument basically morphs the infamous Nixon standard into a referendum--if the public supports something, then it is not illegal.

Does that sound too crazy to be a serious proposal? Here is the core argument from Weisberg's column, "Our Tacit Approval of Torture:"

...waterboarding was ordered and served up in secret. But it, too, was America's policy--not just Dick Cheney's. Congress was informed about what was happening and raised no objection. The public knew, too. By 2003, if you didn't understand that the United States was inflicting torture upon those deemed enemy combatants, you weren't paying much attention. This is part of what makes applying a criminal-justice model to those most directly responsible such a bad idea. (emphasis added)

In this lawless paradigm, public awareness of government misconduct is cited as a justification for placing government officials above the law. Weisberg rules out the "criminal justice model"--you know, those laws that govern the rest of us--because some segment of the public "knew" about government torture in 2003. "Well before the nation reelected George W. Bush in 2004," the article states, "investigative reporters had unearthed the salient aspects of his torture policy."

This argument makes no sense. Elections do not cancel our laws. All kinds of politicians, from the charismatic to the corrupt, can get reelected after being exposed for crimes or misconduct. Yet public sentiment should not bully an independent, apolitical Justice Department from enforcing the laws equally, regardless of the power or popularity of alleged criminals. The public disclosures about President Bush's "torture policy," to use Weisberg's taxonomy, simply have no bearing on the legal question of who knowingly broke the law. Torture is illegal, as even Bush officials concede, and the Justice Department has a duty to investigate and prosecute crimes.

Weisberg admits, however, that he actually envisions a Justice Department cowed by political pressure. In his narrative, corrupted executive branch decisions masquerade as hard-nose realism: "Pursuing criminal charges would be too hard politically." That is a reckless declaration, obviously, but Weisberg is not alone.

If there is one partisan obsession that independent commentators and die-hard Obama supporters share, it is the crass premise that politics should trump equal enforcement of the law. Many even admit it openly.

Time columnist Joe Klein opposes enforcing torture laws "for political reasons, mostly," he recently wrote, to avoid detracting from Obama's "important domestic and foreign business." I've heard this same argument from many Obama supporters in email, blog comments and at political events. (To be fair, though, it is also countered by apolitical accountability efforts on the Left, from organizations taking the new administration to court, like ACLU and CCR, to blogs criticizing Obama's legal muddle, such as FireDogLake, Glenn Greenwald and Democrats.com.)

This agenda argument, however, is totally out of bounds. It is offered by people who have forgotten, perhaps temporarily, that some goals are simply illegitimate in a democratic society bound by the rule of law.

The Justice Department is never allowed to enforce (or undermine) the law for "political reasons." That's what the US attorney firings and the Saturday Night Massacre were about. It is perverse to oppose the enforcement of war crimes like waterboarding because one happens to support the policies of the incumbent President. Would Joe Klein reverse course if prosecutions thwarted the agenda of an administration he opposed?

Political meddling at the Justice Department, like torture, must be off the table regardless of utility. Nor should the government weigh whether national security is advanced by, say, canceling elections.

Our constitution does not allow a shift towards dictatorship or war crimes, even if it made us "safer." Yet the current torture debate returns to the surreal contemplation of crimes against humanity on the basis of their (contested) intelligence value.

"It's almost an out of body experience to me to listen to this debate going on," said General Barry McCafferey in an MSNBC interview last month, scolding pundits and policymakers who openly advocate a criminal torture regime. "We should never, as a policy, maltreat people under our control--detainees. We tortured people, unmercifully, we probably murdered dozens of them," he said. McCaffrey supports an investigation of the government lawyers who knowingly advocated illegal torture, and he specifically cited Bush's White House counsel and Attorney General in the same discussion, emphasizing that "we better find out how we went so wrong."

One reason we went so wrong, as the public record now proves, is that policymakers and government lawyers gave fraudulent counsel to advance an illegal torture regime. If the US does not independently investigate those crimes with all the potential legal consequences on the table--taking testimony under oath, punishing perjury, disbarring lawyers (or judges) and prosecuting war crimes--we are more likely to get it wrong again in the future.

To put it on Obama's preferred terms, we must "look forward" to give the citizens who live through the next attack, whenever it comes, a clear guide for how to uphold American values under duress--and a tangible disincentive against returning to torture. As it stands, the current precedent leans heavily towards lawless immunity, not accountability. And no, it's not your fault.

UPDATE: I discuss these issues more in this new post, Congressman Warns Obama White House on Abusing Power.

Ari Melber writes for The Nation, where this column ran. He Twitters politics here.

Video of Gen. McCaffrey:

Comments

[realpolitic]

Weisberg argues: "But it, too, was America's policy--not just Dick Cheney's." By this reasoning anything the government does surreptiously is America's policy and government is immmuned from investigation. i guess Watergate for that matter was America's policy. If we ignore the judicial remedy for these torture policies then we just open the door for them to return with the next conservative administation who will use what Bush did as a precedent for even greater assaults on the constitution. Then it will be America's policy.

[ssg13565]

The irony of all these pro torture arguments is that the more people try to defend torture the stronger the reason to prosecute it.

If there are large numbers of people who believe that torture was OK, then we must have some convictions of perpetrators to wake these apologists up. We have to show that the law says that their arguments are definitively wrong.

If people weren't making such loud defenses of torture, then this is an issue that might have slipped into oblivion. It won't do them any good to be quiet now, however. The issue must be definitively decided in a court of law and a prison sentence.

[wmfor]

I'm sorry, but with all of the concerns of the day that can rile me up, equal rights for gays, the economy, the two wars--nothing has put a dagger in my heart like this rush of Americans of every stripe to defend our descent into barbarism.

The contorted double-think that is being used by so many to protect the Stalinist tactics of those in charge is truly horrifying. The willingness to sell the soul of our nation for a mess of potage is unbelievable.

Let us try this argument on for size:

"The German people knew what was happening to the Jews and tacitly approved of it. So it would be wrong to prosecute those who ordered or carried out the program."

or this:

"Since any prossecution of our war criminals would be called by Republicans a partisan political move, the best tactic, as far as partisan politics is concerned, would be to ignore their crimes."

or:

"Saddam Hussein was using Extreme Interrogation Techniques in his prisons, but that was quite justified to protect his country."

and as for as our criminal justice system :

"If the corrections officers beat the suspect to death before the trial, it must be remembered that he was [ allegedly.­.. we always leave that out ] guilty of a horrible crime."

and

"Well, your honor, whether or not I robbed the bank, don't we have more urgent things to do than dwell over the past and retribution?"

[ssg13565]

I thought that one of the principles enshrined in our Constitution is the protection of minority rights.

This alone is enough to prove that majority approval of something does not make it legal.

[john456]

You are absolutely correct. The American ideal has been the protection of unpopular minoriities using the Bill of Rights. Frankly, I am dismayed by the support Cheney and Bush have received for throwing out the Bill of Rights, especially from groups that have long suffered at the hands of the "majority". Americans need to read modern history, particularly Italy in the 20s and 30s, to understand how easily anyone of us can quickly become the offending minority, despite supposedly being part of the "ruling" majority support.

[Tubby]

I guess the best defense against the torture pogrom would be for Americans to plead "temporary insanity" due to the scale of evil dealt to us on the morning of 9/11. That way we put this era behind us and move forward. No retribution, no hypocrites clamoring for vengeance.

[DelmarkGoldfarb]

Whatever happened to the subpoenas for Karl Rove and Harriet Miers to appear before Congress? There were headlines, but it never happened.

[captainkirk]

So, in short, it's: "The United States of America does NOT torture." wink wink.

[zenofan]

Here is another article from Mr. Weisberg. This one is from 2006.

http://www.slate.com/id/2149078/?nav=navoa

[kimleehan]

If waterboarding is o.k. than would it be o.k. to waterboard someone and not expect to get information from them, you know like for someone whos not obaying the rules or for someone that did something real bad.?
I myself believe waterboarding is torture and torture is a war crime, but a lot of people don't believe waterboarding is a crime. So my question would probibly be to them.

[jadeba]

Most troubling is that the question of whether waterboarding is a crime has been renewed. Waterboarding is a crime - we have punished, executed people for using it. This should not be questioned, it has been settled long ago. Do we now apologize to the Japanese soldiers in the Pacific for executing them because we prosecuted them for waterboarding our soldiers? Those responsible for approving it knew it was torture and illegal. They should be prosecuted, period. They were not ignorant of the law, they chose to ignore it and no one is above the law.

[RumiSouth]

A good response to Weisberg would be the Republican Party's own "this-is-a­-republic-­not-a-demo­cracy" meme. We are a nation of laws, not popular mandates. Just because most Americans were scared enough to permit torture in 2002 does not make it legal then, now, or any time.

[egal]

That logical take on the matter fails to take into account that the Republican Party's ACTING meme of choice is that they alone are worthy:
deserving of all the money and benefits without any check on their corruptions or balances against power abuse;
above being held to the laws and Constitutional mandates governing the plebes;
and in the right no matter what (thus making anything they do perfectly legitimate, so long as it furthers their goals of consolidating power and divesting themselves of any moral, ethical, legal, social, or other constraints).

[drbillybob]

Four honest questions concerning the harsh interrogation technique known as "waterboarding":
(1) Who's administration first allowed waterboarding?
(2) Did it ever happen under Clinton?
(3) Where specifically in US civilian or military code was this categorized as "torture" before 2004?
(4) Is it true that our special forces undergo waterboarding as part of their SERE training?

[LeftRight]

Oh, okay, so since it may have happened before bush that makes it okay, right???

Course, according to YOUR (lack of) logic, it's okay for me to go rob a bank, because someone else has robbed banks before me!!

[TheLearnedEnglishDog]

1) The Khymer Rouge, the Japanese, the Nazis, various and sundry barbarians throughout history
2) no he was too busy defending himself from baseless partisan attacks, by people like you
3) We hung war criminals for this in the past, Why is it OK now?
4) Its voluntary, and they can stop it with a word--big difference there
ps you would break in seconds if waterboarded. How would you feel if we rounded up you and your friends and family ndue to a tip form a paid informant and tortured them for months rounds the clock?
Most of the waterboarded detainees have yet to be proven guilty of anything

[lizt]

Exactly!! We were waterboarding people who had been convicted of NOTHING!! Whatever happened to innocent until proven guilty??

[wmfor]

Actually, it was historically first traced to Torquemada. Perhaps that is why so many Christians are enthusiastic about it. They confuse it with Baptism.

[mrcoder]

"if the public supports something, then it is not illegal"

Like speeding, smoking pot, sports betting, and torture.

Uh, Wait a second.. Which one of these does not belong? Do we have any Sesame Street alumni out there?? Which one does not belong?

[MarcoEsquandolas]

Like Judas of old
You lie and deceive
A world war can be won
You want me to believe
But I see through your eyes
And I see through your brain
Like I see through the water
That runs down my drain...

And I hope that you die
And your death'll come soon
I will follow your casket
In the pale afternoon
And I'll watch while you're lowered
Down to your deathbed
And I'll stand o'er your grave
'Til I'm sure that you're dead

[zenofan]

Hello MarcoEsquandolas,

Nice poem. There is more to "Judas," however...­the following url belongs to an article he wrote in 2006. Your blood will curdle when you read this one.

http://www.slate.com/id/2149078/?nav=navoa

Regards

[Telemachus]

Then why did we bother going after Saddam? He got 100% of the vote. His actions were the official policy of the Iraqi people.

[rmwarnick]

There are 2.3 million people in American prisons who would agree that it's unfair to dwell on past illegalities. Shall we pardon them all?

[Rory O'Connor - Huffpost Blogger]

Sadly, not the first time our media 'leaders" tilted toward torture:

http://www.roryoconnor.org/blog/2009/04/29/time-to-think-about-torture/