Bye Bye Bybee
It will be the playwrights and screenwriters, not the journalists and historians, who will some day get the torture story right. It will be the poets and novelists, not the philosophers and clergy, who will take us to the heart of that darkness. It will be the artists and satirists, not the law and the lawyers, who will eventually haul this decade to the bar of justice.
It is tempting to read the legalistic redefinition of torture in the top secret memos by Steven G. Bradbury, Jay S. Bybee and John Yoo as a case study of the banality of evil. In this account, Dick Cheney and Donald Rumsfeld tasked the Bush Justice Department to reverse-engineer a rationale for doing whatever the White House asked the CIA to do to terrorist suspects, and his supine clerks obligingly generated a preemptive update of the "only following orders" defense.
Alternatively, it is possible to read those memos as shocking evidence of the criminality of their authors and the moral monstrousness of those who commissioned them. The White House, the CIA and the Justice Department knew full well that the law defined waterboarding as torture; that the Geneva Convention outlawed torture; that the US Army Field Manual on Interrogation warned that torture produces only phony confessions and wild goose chases. Seeing the "depths of human misery and degradation" being unnecessarily inflicted on prisoners had -- in the words of a senior American intelligence official quoted in The New York Times -- "a traumatic effect" on their American captors. And yet the Bush administration persisted with these "enhanced interrogation techniques," arguably because the intrinsic satisfactions of vengeance were warrant enough for sadism.
Both versions are at least partly true, yet neither throws much light on the human condition, or on the currents that washed our country to such an awful shore. It isn't neoconservative ideology that explains the Iraq War; it's Oedipus Rex and Richard III, Mother Courage and 1984. It wasn't Hannah Arendt who limned the Holocaust; it was Anne Frank and Elie Wiesel, Andre Schwarz-Bart and William Styron. Much as I hope that Jay S. Bybee, now enjoying a lifetime appointment as a federal judge, is impeached by Congress, much as I want the Office of Professional Responsibility to seek the disbarment of Berkeley law professor John Yoo, and much as I'd like to see them -- along with Alberto Gonzalez, David S. Addington, Douglas J. Feith, and William J. Haynes II -- be forced to abandon international travel because of pending war crimes prosecutions, the lessons of those consequences will be pitifully less powerful than the silent scream of Guernica or the savage wit of Swift.
In true tragedy, said Hegel, both sides are right. If you think that Creon is entirely wrong and Antigone is entirely right, there is little you can learn from Sophocles. If you think that Hamlet should have just run Claudius through with a sword and be done with it, Shakespeare has nothing to teach you about human nature.
It is not yet clear, and maybe will never be, whether the Bush administration's redefinition of torture was motivated by patriotism or by arrogance, by logic or by faith, by realpolitik or by psychosis. But if it becomes too easy for us to believe that Bybee, Yoo & Company belong to a different species than we do, it will be a wasted opportunity for insight. No matter how horrified we may be by their actions, it is too convenient to distance ourselves from what they did by explaining it away as Rovian evil; it is too simple to dismiss Douglas Feith, as General Tommy Franks did, as "the f--ing stupidest guy on the face of the earth." Only by seeing in these malefactors a fleeting, scary reflection of ourselves can we begin to fathom the depths to which ideology can lead anyone.
I'm not excusing these people. I'm saying that pegging Rove as Satan or Cheney as Darth Vader takes us nowhere in an attempt to grasp how 21st century America could sanction torture. I'm saying that calling the September 11th terrorists "evildoers" does nothing to explain jihadism. The books about this painful period, written and still to come, contain powerful evidence of deception and delusion. But it will take artistic genius, not investigative relentlessness, to convey the tragedy we have lived through, to show how difficult it is even for educated and God-fearing people to know the right thing to do.
Of course that's why we have laws: to codify rules that apply -- that especially must apply -- even in the teeth of fear or the heat of passion, even in the thrall of groupthink, even when the serpent convincingly whispers, Extraordinary times require extraordinary measures. It doesn't matter to the torture victims whether Jay Bybee really believed that they weren't being tortured, or really believed that ticking time-bomb scenarios justified torture, or really believed that he was merely parsing a clear-cut law. The grounds for impeaching him have nothing to do with what he believed. But even his impeachment will leave unplumbed the mystery of his moral blindness, and maybe, awfully, ours. For that, only art will do.
This is my column from The Jewish Journal of Greater Los Angeles. You can read more of my columns here, and e-mail me there if you'd like.
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Well Marty, as much as I would like to agree witchoo, there are some songs that just cant be sung. It has to be an all or nothing deal in the end and you just dont have enough rope in all of the USA to hang all of the rascals complicite in this skullduggery including all of those willfully blind democrats, their relatives and all of those fans who burned Dixie Chick discs or switched channels or watched Fox when the watchin was easy. So you are gonna have to forgive a few and reconcile with a bunch of others and that Sir is the truth.
Marty, thank you for being one of the artists clearly illucidating the worst and best in each of us, and the need for laws to balance those extremes.
More and more we find ourselves barely removed from the mindless instincts of the animal state. In humans that state is exacerbated by our ability to reason wrongly, then justify that mistake with morally circular argument.
Impeachment, discredit and prosecution are the only ways we have to prevent future rercurrences.
We should pursue each avenue firmly, swiftly and unyieldingly, until all the lies, crimes and criminals have surfaced and been dealt with. Only then will we be able to stand proudly as a nation of justice, knowing that the better elements of our nature have prevailed.
Judge Bybee is one step away from the Supreme Court.!
He MUST be impeached now.
He has mocked our laws.
Thank you for this great article. As a government by the people, we all have some reflecting to do. Because even those of us that were opposed to the Bush administration and its policies from the outset are part of the larger society that was ripe for this kind of corruption.
Perhaps if we placed more value on the arts and gave them more credence in our educational system, people would understand how bad things can happen to good people and that life is anything but black and white.
I too think the authors of these memos should suffer some consequences, but whether or not that happens, you can expect artists to begin having their say soon.
Perhaps this is why it is so difficult to get funding for the arts from the right.
I think, however the requests for legal advice were worded, the message that was intended, especially by Cheney, and understood by all the lawyers, was "provide cover for torture." I hope in due course Cheney finds himself beside the President of Sudan in front of an international court. Of course, he will probably follow Pinocet's lead and have twenty years of health problems precluding his trial. i watched Judgement at Nuremburg yesterday, and the confession of one of the defendants near the end entirely destroys Cheney's only argument. What I would love to see is the email traffic showing how much Bush was responsible for and how much he delegated to Cheney. Notice that Cheney is the one still loudly championing torture; he has to be brought to account or the next conservative administration will pick up where Bush/Cheney left off.
Wrong. Art merely serves to make the "already good" feel self-righteous. It does not deter those who would commit these deeds.
The only effective response is prosecution, and where quilt demands conviction, real punishment.
Do you think Cheney ever gave a damn what people thought of him? To the contrary, a guy like Cheney gets pleasure from knowing how many people disapprove of him. That's just so many more people to flip off.
If you think art takes care of this, you have no idea what makes these people tick.
art is not about justice, which is what you seek here (a temporal justice); art is about truth, only only only. Truth is of a different substance than jail or shame or "taking care" of Cheney. The latter would be satisfying, of course. But satisfaction quickly over. What people yearn for is something beyond this--a glimpse of the deeper meaning--or meaninglessness.
Do you mean good art or bad art or a bit of each?
Just asking?
The ridiculous part of it all is that Obama is being blamed for the release of the memos, when they were released as a direct result of the ACLU's lawsuit in WAshington D.C.'s federal district court under the Freedom of Information Act.
The federal judge ordered the Justice Department to either release the documents or provide a real good reason why they couldn't on or before April 16th, 2009... and suddenly it's Obama's fault that they were released.
The fact is that virtually every other country in the world had carried stories in their Press that the U.S. was torturing prisoners... it's only a surprise to a few idiot people in this country!
Ladies and gentlemen of the jury, if you convict my client, we will learn nothing about human nature.
Everyone knew it was torture and everyone knew it was wrong. That is why they spent the time parsing the law and preparing an excuse. It's unfortunate that Mr. Obama has said we will accept "I was only following orders" as an excuse, and it is even more unfortunate that those who ordered all of this will never be brought to justice for it. So, should we attempt impeachment and disbarment of the petty enablers who prepared the excuses? I don't know. Bybee is obviously a bad judge, in the common sense of the term. It would be a fight, I expect. Those folks love their lawyers and cleanup men.
Thanks for helping me to understand the past eight years. It has been extremely painful and difficult to watch helplessly and at times hopelessly. I am proud that I remained a part of the ten percent. I was not fooled or duped after 9/11 when the Yale cheerleader had approval ratings in the 90% range. The majority is not always right. Question authority.
Damn right. You should have been present at each and every family gathering at one of the homes of my extended family over the past 8 years. Bush and Cheney escaped not one second of our disgust and loathing.
You are far from alone. You witnessed the true "silent majority" in November!
Thank you - the horror must be resolved and exposed.
Otherwise - we all remain - torturers.
I'm an academic; I live for nuanced, esoteric theories. Sometimes, tho, Marty, a cigar is just a cigar. Unthinkable crimes were perpetrated under Bush and sanctioned by millions of people who still think Glen Beck is intelligent and Sarah Palin, the exemplar of modern womanhood shooting wolves from airplanes. However, I am not among them. I'm in no mood for a cathartic discussion about how our society became so corrupted it was/is "morally blind". I'm in the mood for blood. I want the people who betrayed me and this country held accountable and punished. Eventually I may come around but right now I'm holding on to my righteous anger.
I am right there with you. We need someone who ordered all this carnage to "pay the ultimate price" of going directly to jail and damn soon.
Just imagine the following shoe on the other foot scenario. Timothy McVeigh gets out of the Army and instead of blowing up the federal building in Oklahoma City, he decided to take down a government building in Egypt. He is promptly arrested and It becomes known that the Egyptians fear he has accomplices and they are waterboarding him 183 times in one month to find out who they are. In fact, the Egyptians brag in public that McVeigh has disclosed the names of his associates who had planned to blow up the Suez Canal and the pyramids.
What would the U.S. press and the U.S. government be doing to stop the Egyptians from following our lead? Would we be insisting the Egyptians (a) turn him over to us and (b) demanding the Egyptian torturers be sent to the Hague? Or, would be saying the Egyptians need to look forward, not backward?
Totally agree.
So true! The bloodlust is strong here as well.
The GITMO operation was troublesome as a blatant violation of American values; a legal no mans land. The conduct of operations when questioned were justified by some based on the fear 911. Those concerned were painted as liberals who did not appreciate we were at war.
If the people held at GITMO were POW’s they deserved to be treated as such.
If they were suspected terrorists bringing them to GITMO was a stupid thing to do. Hold them out of the public eye do whatever needed to determine there threat level and either then send them to GITMO as POW’s, release them or dispose of them.
GITMO was allowed to exist and the water boarding and worse conducted because of sheer arrogance and stupidity by the Bush crowd, who believed they could justify whatever they needed to do. Conducting secret operations is essential and at times so is covert action that result in the death of individuals that is what happens when you are truly at war.
Bush and his crowd display an arrogance of power that believed they had the freedom to in a reasonably public institution act however they wanted. You need to take extreme measures do it in a location that is totally out of the prying eyes of everyone.
Shortly after the election I was on a cruise in the Mediterranean. At our table one evening was an English couple and a published American playwright and his spouse. The English couple brought up what we thought history would say about George W Bush. I answered the question indirectly by saying that I thought that Dick Cheney would be regarded as the American Iago. I recall the playwright's eyes getting really big when I said that, as if I had really struck on something that reverberated.
Yes the Bush Administration will eventually seem like a tragedy of Shakespearean proportions. The passionate yet gullible leader drawn astray by a figure of outright greed and evil to destroy the pure.
Bybee was planted into the 9th Circuit in a plan to radicalise it.
He was in to DOJ to radicalise it.
What prison do we want him to radicalise?
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