A clear and urgent duty of the next president will be to investigate the Bush administration's torture policy and give Americans a full accounting of what was done in our name. It's astounding that we need some kind of truth commission in the United States of America, but we do. Only when we learn the full story of what happened will we be able to confidently promise, to ourselves and to a world that looks to this country for moral leadership: Never again.
That is the final paragraph of Eugene Robinson's column in today's Washington Post, entitled A Torture Paper Trail, inspired by the documents obtained under a FOIA request and then released by the ACLU. The column is, as is usually the case with Robinson, well worth reading. I am simultaneously reading Jane Mayer's The Dark Side, thus there is little in the documents that can totally surprise, but the effect of Robinson's column on top of what I read in the book is overwhelming. It requires me to insist once again on some kind of accountability for the misdeeds done by our Government. Only unlike Robinson, I want to examine more than just the misdeeds of the Bush administration.
Take extraordinary rendition, for example. In Chapter 6, "Outsourcing Torture," Meyer writes on page 108
Renditions were not invented for the war on terror. The U. S. Government had carried out renditions at least since the Reagan era. But the were originally used on an extremely limited basis, and for a different purpose. . .What began as a program aimed at a small, discrete set of suspects - people against whom there were outstanding foreign arrest warrants - came to include the wide and ill-defined population that the administration termed "illegal enemy combatants." Many of them had never been publicly charged with any crime. Before September 11, the program was aimed at rendering criminal suspects to justice, but afterward it was used to render suspects outside the reach of the law.
At first blush, this might seem as if the Bush administration took a rare but legal program and distorted it. And yet on the next page Mayer goes through the Convention Against Torture, ratified in 1994,
which declares that is the policy of the United States "not to expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing the person would be in danger of being subject to torture." The law explicitly prohibited the United States from transferring prisoners to other countries without first reviewing "all relevant considerations, including . . . a consistent pattern of gross, flagrant or mass violations of human rights." It applied to people in U. S. custody anywhere in the world, not just within the borders of America.
Let me repeat that last sentence. It applied to people in U. S. custody anywhere in the world, not just within the borders of America.
I will further explore my concerns about U. S. behavior before 2001, but for now, let us return to Robinson's column. He writes of the released documents
The documents are attempts to justify the unjustifiable -- the use of brutal interrogation methods that international agreements define as torture -- and to keep those who ordered and carried out this dirty business from being prosecuted and jailed.
And his very next sentence puts it simply
The memos don't call it torture, of course.
It is as if the authors seem to believe that so long as they don't use the word outlawed by international convention and U. S. law, they are legally covered. Robinson has already addressed this in his opening paragraph by offering his disbelief that that US could engage in such legal hairsplitting. And yet given how often we have seen judges and justices parse the text of laws and Constitution to obtain a result which seems to have been what they have philosophically decided before receiving the case, why should we be surprised. After all, to cite an important example, John Yoo had clerked both for extremely conservative Circuit Court Judge Laurence Silberman and Justice Clarence Thomas. Timothy Flanigan, about whom we would learn so much more in the U. S. Attorney Scandal, had clerked for Warren Burger. Both had been extremely active in the Federalist Society (and each time I read the title of that group I wonder how the exemplar of Federalist judges, John Marshall, who had served in Washington's Army, would react to their legal reasoning).
Robinson notes that 9/10ths of the famous "Bybee" memo (which we now know was actually written by Yoo) has been redacted, which makes it even scarier when Robinson reminds us
The memo notes that U.S. torture statutes outlaw the infliction of severe mental pain as well as physical pain. It acknowledges that "the threat of imminent death" is one of the specific acts that can constitute torture. Somehow, though, the administration pretends not to understand that strapping a prisoner down and pouring water into his nose until he can't breathe constitutes a death threat -- regardless of whether the interrogator intended to stop before the prisoner actually drowned.
And rather than attempt to argue ticking bomb scenarios, perhaps we would all be well advised to read carefully one paragraph from Robinson, the last I will quote:
It is not difficult to avoid violating federal laws and international agreements that prohibit torture. Just don't torture people, period. The idea that there exists some acceptable middle ground -- a kind of "torture lite" -- is a hideous affront to this nation's honor and values. This, perhaps above all, is how George Bush should be remembered: as the president who embraced torture.
A kind of "torture lite" - what a horrific idea. How can anyone who calls themselves a Christian, who has certainly heard multiple times the Sermon on the Mount, the words about doing unto others as you would have them do unto you, how can such a person rationalize "torture lite" no matter how they parse the language? How can any rational or moral person justify such an action?
Mayer makes a point of referring to Washington's order for humane treatment of prisoners taking from the British, which is in counterpoint to how Americans taken by the British - who viewed them as traitors - were treated. She notes that our actions were in keeping with the principles of the Revolution, of the newly created nation, and that they resulted in desertions by Hessian and British troops, just as when the man we now call Al-libi was treated humanely by the FBI who first interrogated him gave up valuable and actionable intelligence while once the CIA began to abuse (read 'torture') him, what he gave was inaccurate, causing us to go on wild goose chases.
Last night as I was going to sleep, I was pondering something I had read in Mayer, the procedures for extraordinary rendition. If we justify cutting all the clothes off someone, heavily sedating them with an anal suppository, covering their ears and eyes to place them in sensory deprivation and transporting them to a situation where they are likely to be tortured because we believe they have done horrible and illegal things, what objection could we raise if someone someone succeeded in grabbing George Tenet or Donald Rumsfeld, both of whom were involved in authorizing renditions and torture, treating them similarly and transporting them someplace - let's say Sudan, or Taliban-controlled portions of Afghanistan - and treating them in a similar fashion? "do unto others . . ." Perhaps I am, given my Jewish background, more attune to the parallel formulation offered by Hillel in the century before the start of the Common Era,
That which is hateful to you, do not do to your neighbor. That is the whole Torah; the rest is commentary. Go and study it.
The whole Torah, the whole of the law, reduced to one sentence. A simple principle.
I have to recall the words of Nathan Jessup as spoken in the movie "A Few Good Men" in to explain my thinking.
Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lieutenant Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. You don't want the truth because, deep down in places you don't talk about at parties, you want me on that wall, you need me on that wall. We use words like honor, code, loyalty. We use these words as the backbone of a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide and then questions the manner in which I provide it. I would rather you just said "thank you" and went on your way. Otherwise I suggest you pick up a weapon and stand at post. Either way, I don't give a damn what you think you are entitled to.
If we acquiesce, if we do not seek out the truth, if we do not seek to know and therefore to accept responsibility and act accordingly, we allow the point of view expressed by Jessup to take hold. It is the point of view that leads to the concept of the unitary executive, to the idea that the power of the president in a time of war are unlimited, that he can on his own say so take any action he deems appropriate or necessary, on the grounds that he is protecting the people of the United States.
But the oath or affirmation made by the President does NOT mention "safety" or "security." Read it:
I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
It is not to defend the nation and people, but to defend the Constitution, to preserve, protect and defend. In that oath or affirmation, the Founders made clear their understanding that it was the Constitution which protects and defends the people, the nation. The rationale that leads to justification of torture is the same rationale that we heard in Vietnam, that in order to save the village we had to destroy it. This administration is arguing that in order to save the Constitution they have to violate it, and that argument is tantamount to justifying tyranny and dictatorship, it has no place in a liberal democracy constitutionally defined.
I earlier expressed my confusion at the use of the term "Federalist" for the legal organization to which so many justifying such actions belonged. And I noted my belief that Marshall would reject the arguments of the Yoos and the Addingtons, the Nixon who said that if the President did something it was therefore not illegal. Please indulge me while I offer a snip from Marshall's opinion in the foundational case,
The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.
There must, in such a constitutional system where power is to be limited, a method of determining where those limits have been violated. There can be nothing that is exempt from such an examination. If an executive can assert that its actions are beyond examination either by legislature or judiciary, then it is asserting an unlimited power, and such power without limits is alien to, in contradiction of, in opposition to, the principle of limited government as established the very act of writing and ratifying a Constitution. Marshall knew that. We should all know and understand this basic principle. We should insist upon it, for if we do not we abandon any notion that we still have a Constitution, that we have rights that are placed beyond the power of government to suppress.
And how can we know that we still have a constitutional government if we cannot know what has been done, ostensibly under the powers granted by such a constitution?
Robinson argues for a Truth Commission. Perhaps he has in mind the Truth and Reconciliation Commission in South Africa, post-apartheid. Tutu and Mandela recognized the need to move South Africa forward, and were willing to forswear retribution against those who fully and openly acknowledged their wrongdoings and accepted responsibility. For now I will remain mute on the question of Reconciliation by not insisting on retribution and punishment. But I think we need more than a truth commission on the issues of torture and rendition, in this administration.
What we have seen in the past 7+ years is in a sense no more than a reducto ad absurdum, that is, the extremity of the positions and actions advocated by this administration are not totally new, but are merely carrying to extreme the positions and actions of previous administrations, Democratic as well as Republican. In the past we might take people in our custody and because they had charges against them turn them over to nations like Morocco, Jordan or Egypt whose governments we knew or should have known would torture them. Given how closely our intelligence and military personnel worked with such governments, I have little doubt that we knew. Just as the torture and abuses that occurred in countries to our South were also our responsibility - so many of those doing such abuses were products of the School of the Americas at Fort Benning.
I recognize that most of our attention is focused on winning the election this Fall. That is important, but it will be insufficient. It is not enough for us to vote for candidates who say they will not torture, they will not violate the Constitution. How will we know unless they agree to openness? Will they not be tempted to use some of what has been done in previous administrations as precedent for their own actions? How do we prevent that unless we first expose what has been previously done?
We have only a few times in our history attempted honesty. The efforts of Frank Church and Otis Pike in the 1970s were incomplete, and perhaps were possible only because the nation was shocked by what we were learning about the Nixon administration's actions. Those examinations rightly did not limit themselves to the abuses in one administration, but looked at a long pattern of wrongdoing whose perpetrators might have argued necessity and national security, even as we hear similar arguments today. And again, that should not surprise us, given how many of the actors participated in the Nixon administration, and how many others in similar wrongdoing during the Reagan and Bush 41 administrations.
If we are to have a truth commission, it cannot focus merely on the past 7 years. It must examine the long pattern of how our democracy has been being eroded. It will be not merely misdeeds of the executive branch in the legal process, intelligence gathering and military activities. It must include the acquiescence and downright complicity of those in the legislative branch who have facilitated such misdeed, who have not fulfilled their constitutional obligations of oversight, who have written laws that are abusive of rights, too empowering of the executive, in contradiction of the principles of our founding documents. And yes, it must include an honest examination of how judges and justices of all political persuasions have selectively interpreted law and constitution in order to achieve a predetermined result or favor parties to whom they have affiliation or with whom they philosophically agree. Justice is not, and has not been, blind in this nation. Ask people of color. Ask those with unpopular opinions, not just in wartime.
A democratic republic under a constitution is a tenuous and fragile thing. If we are not forcefully vigilant on its behalf, we can awaken to discover that we have been frogs in the pot whose temperature has gradually been increasing, that it is too late, and we are boiled alive by tyranny.
Politics is a means to an end. We seek control of the levers of power. We claim that we are better than the other guys. If we are, we should be acknowledging that we need to examine honestly, regardless of where such examination might lead. If we cannot do so now, if we the people cannot insist that since we created the system of government by our consent that we are entitled to see openly that it is being obeyed, then we have abandoned any commitment to democracy and popular sovereignty. The Constitution is null and void. Changing the party label on control of the government may make difference in some policies, but the cancer that is eating away our system of liberal democracy under a constitution will continue. We may slow, but we will not reverse the damage that has already been done.
Think of the crisis of global climate change. Now apply the same level of concern, of examination, of the need for immediate action, to our system of government. The imagery is not an exact parallel, but it should be close enough.
William Greider once asked as the title of a book "Who will tell the people?" We should not be waiting for others to act, to tell us. We should be asking, demanding. It is our government.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
That whenever any Form of Government becomes destructive of these ends. . . The question before us is if our government is not already destructive of these ends. How will we know if we do not demand? Will our Congress, those elected to speak and act on our behalf, fulfill that responsibility or not?
The question is before us, and despite all my optimism that we can make a difference, I am no longer sure.
What about you?