Torture
Over the past couple of weeks, we have learned a lot more about the decision to use torture by the Bush Administration. Some important news included:
- The revelation that specific interrogation techniques where discussed at a Principals’ Committee meeting, which included Vice President Cheney, Secretary of Defense Donald Rumsfeld, National Security Advisor Condoleezza Rice, Secretary of State Colin Powell, CIA Director George Tenet, and Attorney General John Ashcroft. When questioned about the meeting, President Bush replied, “I’m not so sure what’s so startling about that.” What is startling is that this meeting occurred in the Summer of 2003, at a time when cooler heads ought to have prevailed and the absurdity of the most senior officials in the United States government discussing specific methods of torture ought to have been apparent to one and all. Torture was not pre-existing policy. It was not actions by rogue interrogators. Torture was the new policy of the United States government as established at the very highest levels in cold, deliberate discussions. At least John Ashcroft got it: “According to a top official, Ashcroft asked aloud after one meeting: ‘Why are we talking about this in the White House? History will not judge this kindly.’”This meeting, where torture was discussed clinically has a stench about it that is vaguely reminiscent of the Wannsee conference where Nazi leaders plotted the Holocaust. There is an orders of magnitude difference in the nature of the offense, but it is an unfortunate echo of the past.
- Earlier this month, we also got a glimpse at the perversion of the legal system in defense of torture in memos written by John Yoo, then of the Department of Justice’s Office of Legal Counsel. According to the New York Times, “the March 2003 opinion went further, arguing more explicitly that the president’s war powers could trump the law against torture, which it said could not constitutionally be enforced if it interfered with the commander in chief’s orders.”Another memo penned by Yoo basically declared the 4th Amendment null and void. “For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution’s protection against unreasonable searches and seizures on U.S. soil didn’t apply to its efforts to protect against terrorism.” Yoo is a professor at UC Berkeley’s law school. There have been some calls for his termination, but he is tenured and there is a high presumption against stripping a professor of tenure without an extreme circumstance. But really, is there anything more extreme than gross legal misconduct which justified criminal behavior and threatened to overturn our Constitutional order? Because, that is precisely what Yoo was arguing. Yoo’s memos are basically a monarchist position, that the president can unilaterally override existing law and Constitutional protections on the basis of his inherent powers in the realm of national security. In Federalist #69, Alexander Hamilton, himself proponent of a strong executive pre-emptive rebutted the Yoo position,
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“The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.”
There is simply no basis in American history or Constitutional Law for the arguments made by John Yoo and other senior Bush Administrations lawyers.
- Errol Morris has a new documentary, “Standard Operating Procedure,” which examines the treatment of prisoners at Abu Ghraib. He interviews many of the key participants and puts a stake, once and for all, through the notion that what happened at Abu Ghraid was the work of a few “bad apples.”
The problem with all these stories is that lack of understanding among Bush Administration officials of the need to balance our system of government with the demands of national security. It is debatable whether torture is ever a good idea, but many people would understand the perceived necessity and urgency of getting someone like Khalid Sheikh Mohammed to talk quickly. And many would excuse the use of torture. But there is a difference between the President making the case for exceptional illegality and the claim that it is legal simply because the President decrees it. The Bush Administration sought to legalize and institutionalize torture and other abuses — not because it was necessary to protect the country, but because it was necessary to protect administration officials from potential criminal charges down the road. This was an understandable motivation, but the costs to our form of government were potentially tremendous.
Imagine if, upon leaving office, President Bush argued, “Over the past eight years, I have done things that I am not particularly proud of. In some cases, I violated the law. In others, I bent my own moral code. But I did what I thought I had to do to protect the country. I now place myself at the mercy of my fellow citizen, who I hope will see that I was only acting with the best intentions.” Instead of leaving behind a legacy of Constitutional struggle and institutionalized violations of our laws and Constitutional order, he would be making a case about the exceptional nature of the challenges he faced. I suspect that in the long-run, he would have emerged with a better reputation and place in history.
Fuller discussions of the torture issue can be found in a recent issue of the Washington Monthly, which features essays by several ASP board members.
[...] Crossposted here. [...]