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Mark Kleiman

Mark Kleiman

Posted January 12, 2009 | 08:56 PM (EST)

Torture: A modest proposal


The incoming Obama administration confronts the problem of how to deal with the criminal (by domestic as well as international law) infliction of torture by elements of the United States government, with authority coming from the very top, and not merely on important terrorists but on random innocent victims.

While the Bush administration has no doubt made errors in the course of its valiant attempts to protect us all from Islamofascist terrorists, in one respect it has displayed admirable creativity, from which the Obama administration could benefit: assuming only that the President-elect is sufficiently generous-minded (as he seems to be) to be willing to learn from adversaries.

I refer to the question of the limits of executive power, or rather the unlimitedness of executive power. To call the legal positions taken by the Bush administration "creative" would be to undervalue them: "breathtakingly audacious" would be more accurate. But those positions, and the actions taken in accordance with them, now stand as precedent, and the President-elect has expressed his admiration for audacity.

Audacity is certainly called for. Our situation today is historically unique. Not only are we (as the Bush administration and its supporters tirelessly insist) at war with an enemy so nebulous as to guarantee that the war will have no end, but we confront strong evidence of the existence of a Fifth Column, though not the particular Fifth Column the war hawks predicted.

Every step taken since the Bush administration took power: ignoring the al-Qaeda problem until the 9/11 attacks, covering up the role of the House of Saud in facilitating those attacks, using the aftermath of those attacks for partisan advantage rather than forming a government of national unity, allowing bin Laden's escape, failing to establish an effective anti-Taliban coalition in Afghanistan, continuing to prop up Pervez Musharraf despite his strong support for the Islamofascist ISI, failing to secure international support for the invasion of Iraq, invading Iraq, failing to prevent looting in Iraq, disbanding the Iraqi army and most of the civil service in the name of de-Ba'athification, supporting Ahmed Chalabi in his power-lust despite his ties to Iran, staffing the CPA with ignorant young wingnuts instead of professionals, allowing the looting of the CPA by contractors and cooking up legal interpretations to protect them from criminal liability, engaging in torture, failing to cover up the fact that they were engaging in torture -- Need I go on? -- has tended to weaken this country, and the West, in this existential struggle.

It is of course possible to explain each of those decisions individually as the product of ideology, corruption, incompetence, or some combination of the three. But surely it strains credulity to imagine that the entire pattern, tending inevitably to the end of strengthening our enemies and weakening our institutions and our alliances, was mere accident. Surely the least hypothesis is that there were, in the Bush administration and its supporting institutions, one or more Islamofascist moles. The Hansen case reminds us that the best cover for a mole is apparent fanatical hatred of whichever foreign power the mole is working for. So we should seek out our Fifth Column among those who have been loudest in denouncing Islamofascism, and especially among those most insistent on subverting our Constitution to do so.

That points directly at Bush, Cheney, Rumsfeld, Ashcroft, Gonzales, Addington, and Yoo. Perhaps they are innocent, but the presumption of innocence is one of those ideas Yoo properly dismissed as "quaint." Remember, it was precisely the decision to treat terrorism as a law enforcement problem (with responses constrained by the Constitution) that the Bush administration correctly identified as the key weakness of the Clinton administration in its response to terrorism.

No, this is a matter of national security, and therefore covered by President-to-be Obama's inherent and unlimitable powers as Commander-in-Chief in wartime. According to the various doctrines offered by the Bush administration, he he can order the indefinite detention, and aggressive interrogation, of anyone he deems, his sole and un-reviewable judgment, to be an enemy combatant, including anyone who has given "material support" to terrorism. And as long as those detentions and interrogations occur outside the sovereign territory of the United States -- at Gitmo or Bagram, for example -- neither the courts nor the Congress has any authority to intervene, or even to inquire: even in cases where the subjects of the detention were known in advance to be innocent of anything but boasting. Indeed, any Congressional inquiry at all into any action by the president or his aides -- even frankly criminal activity such as the obstruction of justice -- is barred by the doctrine of Executive Privilege, as asserted by the Bush administration.

The President-elect should, therefore, as his first official act -- indeed, perhaps as part of his Inaugural Address -- order the immediate detention of George W. Bush, Richard Cheney, John Ashcroft, Alberto Gonzales, Donald Rumsfeld, John Yoo, David Addington, and perhaps a few others, at a secret location outside the sovereign U.S., for the purposes of extracting from them evidence of the plot and the identities of the other participants, who can in turn be detained and interrogated to see what they have to say for themselves.

Since most bullies are also cowards, I suspect that the years of maltreatment the Bush Administration inflicted on innocent Afghani peasants to get them to make false confessions will not be necessary to get Bush and his cronies to confess. A month of hypothermia, sleep deprivation, and stress positions, or a few minutes on the waterboard, should suffice. Their confessions will retrospectively justify the interrogations. And of course they cannot be given the right to counsel, since their lawyers would necessarily learn about the interrogation techniques, which are Top Secret Codeword material as intelligence sources and methods, despite the fact that everyone in the world knows what they are. (The techniques are not original: all of them were copied from the Inquisition, the Gestapo, and the KGB.)

Now perhaps some future court might decide that these methods, as applied to people whose status generally makes them "non-torturable," actually exceeded the president's powers, even in wartime. But not only would that decision be wrong on its face -- since those powers have no limits -- but even bringing the case would be wrong. As all our Wise Men agree, no senior official should ever be held legally accountable for actions in the name of national security, no matter how horrible those actions might be.

So now is the moment for the President-elect to confute his critics, and demonstrate that he has the toughness needed to deal with the Islamofascist threat, no matter who its agents may be.