Follow the Evidence

Barack Obama's initial statement on the torture memos and his remarks at CIA headquarters suggested that the release of the facts of the case would be accompanied by a policy of refraining from prosecutions. That preference was repeated by Rahm Emanuel last weekend in a televised interview on This Week. But the president, in speaking to the press on Tuesday, shifted ground, and while still promising immunity for agents who believed themselves to be operating within the law, he was careful to intimate no such support for the lawyers who worked up new laws in secret to construct an illegal rationale for torture. Yesterday, in testimony before Congress, Hillary Clinton said once more that agents would be spared who had stayed "within the four corners of the law," but willful distortions of legal understanding by drafters of new laws were another matter. Finally today a New York Times story by Charlie Savage reports the categorical statement by Attorney General Eric Holder that "No one is above the law." His department, said Holder, will "follow the evidence wherever it takes us."

The adjustment of stance is now definitive, and it is salutary. Yet the process by which the policy changed leads one to speculate about the temperamental qualities that showed so clear a face of ambivalence in President Obama on successive days. He had set the law in one eye and the spirit of conciliation in the other, and for a while imagined that publication of a series of crimes could inaugurate an agreeable national forgetting. He preferred, he said -- he had said it on his website as soon as he was elected -- to look forward and not back. He wished not to appear to score cheap points against his predecessor. And one of the marks of his own political character is an evident distaste for bluster and harangue. The farthest he tips toward the natural temper of the accuser or the unsentimental judge is the exhibited emotion of paternal outrage under firm control.

There was also visible in Obama in these days a certain confusion of roles. He has not settled yet into the posture of a leader--a role that carries distinct privileges but also distinct limitations. He slides between a sense of himself as leader, as a popular organizer, and as a national healer. His town meetings on the economy have cast him in the second role; his statement on the release of the torture memos showed him trying out the third. But he did so at a cost to his stature as chief magistrate -- the leader of a constitutional democracy, whose duty it is to "take care that the laws be faithfully executed." You cannot at once support the laws and issue a preemptive pardon to those who knowingly distort or knowingly break the laws.

It is not a matter of looking back or looking forward but of looking at.

What have we done as a country over the past eight years? What wrong acts were performed in our name on the pretext of national security? How far have those actions harmed our fame in the world, and how deeply have our institutions been corrupted by a system of concealment devised to perpetuate those actions and to shelter them from inspection? Among those who broke laws by ordering criminal acts, who are those that remain even now in government, and to what extent can they be relied on not to break the laws again? Do Americans understand the Constitution better today than we did in 2002? We: not just secret agents and government officials, but the civilian lawyers in that time of panic who urged such nostrums as "torture warrants" (as Alan Dershowitz did) and representatives who said such things as "I'm OK with it not being pretty" (as Jane Harman said of extreme interrogations). We are at a moment of national inquest. It was not in the president's power to launch and contain it in a single stroke.

In an essay well known to the American founders, "That Politics may be Reduced to a Science," David Hume wrote that "A constitution is only so far good, as it provides a remedy against maladministration." Mere knowledge that crimes were committed is not in itself a remedy. It is necessary that the people responsible for acts of maladministration be rooted out and exposed to public opprobrium. If they committed crimes, they ought to be punished just as other citizens are, without any benefit owing to their official status. Praise of the good is meaningless where blame of the bad is prohibited. So long as servile lawyers and compliant executioners, who work in the dark, continue to be sheltered in the dark, every whistle-blower is at risk by his very loyalty to a public good that trusts the light of day.

Let us never forget that the Bush-Cheney administration, under the Military Commissions Act of 2006--a law drafted by some of the same parties that devised the rationale for torture--was given the power to seek punishments by secret tribunals against defendants with evidence obtained under torture. We are speaking not about a few mistakes, but an influential distortion of the American constitution, put into practice by military police and military lawyers, after being drafted by government lawyers higher up, all with the consent of both houses of Congress.

And the rottenness penetrated deeper down: from the extralegal culture of an administration drawn to adventurism in every realm, to a popular culture whose apparent sources were quite different. A TV show like 24 contributed heavily to the legitimation of sadism. The star of the show, Kiefer Sutherland, son of the actor Donald Sutherland, a famous anti-war activist of the 1960s and 1970s, doubtless squares it with himself by saying that his show is only fiction. But all fictions are influential: we don't try them on in our minds because they mean nothing to us but because they mean something to us. A series like 24 is as morally regressive for Americans as an Arab show would be, playing across the Muslim world, in which every episode ended with the ritual stoning of a woman who had transgressed the law by falling in love with an infidel. The costumes may differ, but under the burnoose and khaki the surrender to violence is just the same.

The Bill of Rights outlaws torture, explicitly, in two of its ten amendments, the fifth and the eighth. All Americans ought to know this; and President Obama might take the opportunity to say it some day: it could not hurt his position. "No person," says the fifth amendment, "shall be compelled in any criminal case to be a witness against himself." Torture is compulsion; its purpose, when used as evidence in a military tribunal, is to compel the prisoner to serve as a witness against himself. As Leonard Levy points out in Origins of the Bill of Rights, the history of this particular right lies in the horror of the American founders at the arbitrariness of Roman law and its legacy of ex officio oaths and coerced confessions. The non-conforming Protestants whose spirit animates the Constitution were looking to assure that nothing in the history of this country would resemble the Star-Chamber proceedings under Charles I. The language of the eighth amendment is even plainer: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Writes Levy: "Cruel and unusual punishment referred to methods of punishment as well as their severity; they had to be as swift and painless as possible and in no circumstances involve a lingering death or any form of torture." Any form of torture: let those words stand alone against the hairsplitting sophistries of John Yoo and Jay Bybee.

It has sometimes been made a special plea for the contempt of the Bill of Rights in the Bush-Cheney administration that the laws we live by were intended to be only for use by citizens. A weaker version of our laws may thus be all we choose to allow to our enemies. But that plea neglects a precedent and suppresses a fact. In previous wars, the rule governing the morale of America toward our enemies has been that "we bring the Constitution with us wherever we go." And indeed, how could we hold ourselves up as models for emulation unless we did so? At the same time, a disturbing feature of the Military Commissions Act has often been forgotten. It gives the president a free hand to declare an American citizen to be an enemy combatant and thereby to deprive a citizen as surely as an alien of rights under the Constitution.

A mood of national unity has thus far yielded an impressive indulgence toward the instigators of torture. It has, in fact, led to some curious refusals to blame, even among those who first detected the scandal of the new policies. Thus both Jane Mayer in The Dark Side and Barton Gellman in Angler, as well as Ron Suskind in The One Percent Doctrine, stood back and declined to draw the inference from their own discoveries that any motive darker than misguided patriotism could have driven the vice president and the president and their lawyers. Jack Goldsmith, who fought against the Yoo-Bybee memoranda behind the scenes, also took this sympathetic line in public. But actions, not motives, have to be the subject of any merely legal investigation.

People have reasons for the things they do, and sometimes they do bad things for good reasons. Sometimes also they do bad things for bad reasons. Were the governors and lawyers at the helm of the country beside themselves with perfervid pleasure at the new powers a national disaster had suddenly placed in their hands? It seems wrong to say it that way; but wrong, not because it is false but because it is conjectural. Yet the unkind hypothesis is no more conjectural than the saccharine notion that these men were high exemplars of an unselfish prudence, conscience- stricken by the disaster, and determined to follow the grim dictates of necessity even at the expense of American liberty and American laws. No: the unpleasant story and the pleasant one are equally speculative. The truth about what Bush and Cheney and Addington and Yoo and Cambone and Feith and a handful of others did, must be known before it can be judged, and all that can be judged is the content of their actions.

The proof that it was possible to do other or better than they did, was brought out in a Times story today by Scott Shane, who quotes Robert Mueller III, the director of the FBI, an opponent of the permissive laws on torture who forbade collaboration in those laws by his agents. Asked whether any attacks on the United States had been disrupted by intelligence obtained through torture, Mueller said: "I don't believe that has been the case." He later confirmed the statement through a spokesman.

But what if torture "works"? The evidence is that it does not, because a man in constant fear under the threat of extreme pain will say anything. But this is a question that opponents of the practice ought to answer directly and without reference to pragmatic concerns. The question is whether we shall or shall not have a law that places a burden of prosecution always against the person who would employ such methods. People will do awful things, and violent things, when their backs are against the wall; we all know this; the question is: do we endorse a law that gives permission and clearance? That was always what was at stake, and arguments about degrees of efficacy can only serve to conceal the depth of disagreement over the principle. As John McCain said in a moment for which he can still be remembered with respect: "It's not about who they are. It's about who we are." Romans of the imperial age practiced torture against enemy combatants on an imposing scale of unrestraint. The gloves were really off. Any viewer of the final montage of Kubrick's film of Spartacus will remember the captives of the slave rebellion nailed on their crosses like trees of that peculiar climate. The Christian religion was founded against the empire that did such things. It incorporated into its central symbol the purest revulsion from torture.

Can an investigation be pursued without the appearance of political opportunism? The people who are the first to raise that objection are people who will make the charge in any case. They like to speak, in a canting phrase, of "the danger of criminalizing political differences." But the depth of the cynicism in such a statement should surprise us. It suggests that we understand in advance that politics is essentially a criminal activity. If that were so, the United States would have boiled in its own acids long ago. What the objectors are actually worried about is not the criminalizing of political differences, but the politicizing of criminal differences. If a party in power has advanced its interests substantially by criminal means, it may have something to fear from the other party's success in presenting itself as non-criminal. But we are nowhere close to such a millennium; and it may be a cure for skepticism to recall that until this week no American had done more to rouse the conscience of the country against torture than John McCain.

Comments

[theclosetconservative2]

Waterboarding is on par with a fraternity hazing. It's not nice. It's not pleasant, but we avoided another 9/11 attack in Los Angeles because this was done to KLM. Abu Graib has been elevated to an example of what the Bush administation advocated, but the people peddling that story know that it's fraudulent. They don't care. This is a political witch hunt pure and simple. Torture has been defined down to facilitate it. Obama and company want to extend the hand of friendship to dictators that have done a lot worse than pour water down a suspect's nose to get information. But they want you to believe that it has something to do with getting back to our moral center. If only liberals' morals were on par with their hubris. http://theclosetconservative.com

[AmericanWarrior]

Not too shabby...

[andycan]

IS CLEANSING AT ALL POSSIBLE?

I saw the documentary entitled "Special operating rules" dealing with Abu Ghraib prison camp.

Army personnel and private contractors involved with torture of Iraki citizens concurred on one point : torture was used to extract confessions of various sorts - in a very Kafkaesque way.

Acute physical molestation (sometimes leading to death) had nothing to do with information gathering, but rather , with a strogly punitive regime aimed at the people of Baghdad. There was a quota of arrests in 2003-2004.Torture had more to do with the psychology of retribution, an age-old "right" of victors.

Investigative commissions dealing with torture should henceforth have the objective of discovering to what extent torture has been used as a punishment - as well as a tool for extracting confessions.

There is overwhelming evidence that in fact torture served to a large extent the victors' egos.

Then, as part of the congressional investigations, it should be asked how the judiciary branch of the American Republic could have adopted practices that originate directly from the Dark Ages. Furthermore, is it possible at present to cleanse the body judicial, military and politic of the putrid legacy of torture?

[JustSayMaybe]

David, while I think you make some well-reasoned suggestions and points, you're off-base on more than a few. 1) Obama is not wavering because he can't make up his mind, he's trying to walk the tightrope of not being able to predict the future. He doesn't want to totally dismiss possible future prosecutions, OR lead the charge. 2) You defeat your own argument about the CIA agents with the line "those who knowingly distort or knowingly break the laws". That's Obama's point: the agents were told that waterboarding et al was legal, many were urged or pressured into going through with it when they hesitated or refused. The people who wrongly legalized and authorized torture are the ones most at fault. The agents that did what they were told? Yeah, weak on the moral grounding, but you never know what someone will do until they are in a difficult situation. 3) Mentioning the Bill of Rights here could work against Obama. He's not trying to convince the majority of us that value the Geneva Conventions and believe that we tortured detainees. He needs the cooperation of the easily-roused right, and if he pulls out the BoR as an example, they'll be all a-shrieking that he's extending US citizenship to terrorists. You give these people too much credit, they're not subject to reasonable arguments.

[Torus34]

It has been something of a revelation to me to understand, finally, what it is that lies behind the dismissive attitude toward torture of the right-wing pundits as well as the talk show hosts and their call-in enablers.

It is simply this: they do not believe that our legal system will work fairly in meting out justice -- in deciding whether various governmental officials, from the lowest to the highest, broke the law and merit punishment. The position taken by them in effect exempts those above a certain level of government from the rule of law. So much for upholding the ethics and morality which under-gird our nation.

Considering how they let no opportunity to wrap themselves in the flag go unused, this lack of simple belief and faith in our American institutions is very sad indeed.

[StillAmused]

Central to the slogan-laden, fact-challenged drivel of the right wing is the assurance that, when it goes into an uncontrolled skid that ends in a pile of rubble against an overpass abutment, no one will stop to examine the wreckage. We'll just 'move on', learn nothing and let them give it another shot on another stretch of highway.

This is not complicated.

Facts speak.

... and, as we learned from the late Daniel Patrick Moynihan, while people are entitled to their own opinions, they're NOT entitled to their own facts.

Let the games begin. If it further polarizes the national conversation, so be it. At the far end of that turbulent process, the facts will stand... and those who ardently dismissed and chose to ignore those facts will be reduced to mocked ignominy.

Sounds like a win-win to me.

[IndependentLass]

For eight years the people screamed, louder and louder, "They're criminals! Stop them! They're breaking the law!"....And they smirked at us and said, "History will judge us."
Now that Judgement Day is here, they cry, "Let bygones, be bygones - we need to look forward, not backward!"
Of all the nerve.....

[toggan]

Good analysis

[RawBob]

Here's the simplest way for us to put this behind, yet shine a light on what really happened:

President Obama should preemptively pardon former Vice President Cheney.

We can move on and Mr. Cheney will, no doubt, be very p....leased.

[realpolitic]

The worst thing that could happen is that Obama overlooks and does not prosecute these instances of torture and then another conservative Republican administration comes in and utilizes torture all over again. Then, we will lose our moral authority as a country forever.

[Yermammy]

When Ford pardoned Nixon, the cycle began. Ford got his advice from his Chief of Staff- Dick Cheney. It all makes sense if you keep that salient point in mind. Ronald Reagan never would have attempted the Iran-Contra-gate scandal if not for freedom from accountability borne from that pardon.

It is high time to break that cycle for good, this time.

[inthedesert]

I sure hope Cheney, Rice and others are starting to sweat now.........LOL. Let the trials begin!!!!!!!!

[lagumbo]

No one in these United States can break the law and get away with it. No one is above the law. Now everyone who thinks Bush and his croonies should be excused or be allowed to get away with it is just
insane. The republican would have put President Clinton in prison for his escapades with Monica L. if it were a crime. They couldn't so they did all they could to try and destroy Clinton. But they couldn't, he was too smart for them. They try to railroad PRESIDENT OBAMA because he went to Rev. Wright's church, they did all they could to try and make our FIRST LADY look unpatrotic,and now they expect Bush and his croonies to just get off for raping the constitution. C'on now.

[arrabbiata]

Cheney has proudly proclaimed his role in "keeping America safe" by torturing prisoners. Why is there still a question that the United States engaged in illegal activities under the U.S. Constitution and the Geneva Convention when the ex-V.P. has made it common knowledge? He has repeatedly, proudly confessed to an international war crime. The world is watching, and those who ordered the torture of detainees must be held accountable for their actions. We would expect no less from any other country, and we must return to our position of leadership in the world through our example of due process and the rule of law. The international community would be well within its rights to demand that Bush administration officials stand trial for war crimes.

[jackwaddington]

This is a matter for an international trial, not an internal one: as was the case with Nuremberg. That way it's not an internal political debate, but a Global Ethical one.

[Snuffleupagus]

This is a matter for us to clean up, not a time to rely on others to save our democracy.

Nuremberg? And if not an international trial, what? Germany was destroyed so an internal trial process was not even a remote option.
The US is allegedly still a democracy with free elections and the rule of law as the rule of the land.
If this is true, we are more than capable of having quick effective prosecutions for our torture criminals.

So many clever comments using all sorts of excuses, buck passing and lame talking points seek to take everyone of the main point. The only point.
We tortured, we have loads of evidence, and we are in the midst of a cover up of the criminals who did it.
We need to change the course of this operation to stall and deny justice. We need to confront the slime in the Republican party and their counterparts in the Democratic party, who are working hard to protect Bush and make this whole thing go away.

[jackwaddington]

You say: "If this is true, we are more than capable of having quick effective prosecutions for our torture criminals." Seemingly, we are NOT capable.

[johannesrolf]

there were additional war crimes trials in germany, undertaken not by the victors, but rather by the germans themselves. The Frankfurt war crimes tribunals in the 60s, more than 20 years after the events in question. read the play "The Investigation" , by Peter Weiss, which consists of verbatim testimony. america will need to do no less than germany.

[TEPK]

After the worst eight years of a presidential administration in history - fugeddaboudit!

It's a NEW day! With new people in charge! Move FORWARD! Accentuate the positive!