Apr 18th 2009

Expedience and the Torture Amnesty

President Obama's statement on releasing the Bush-era torture memos is a curious and depressing document, but it bears the marks of having been revised with care by the president himself. He takes the occasion to assure the country that a dark age has passed. At the same time he assures the agents of that darkness that they will be exempt from prosecution. The statement betrays an odd mixture of frankness and caution; the appearance of resolution, with a good deal of actual equivocation; a wish to channel the conspicuous truth to one's own cause without revealing a disadvantageous quantity of truth.

The best way to trace the path of the president's thinking is to examine in detail its three central paragraphs; the text, accordingly, is printed below a sentence at a time in boldface; my comment follows in brackets. Why, President Obama asks, was it necessary and useful that he release the torture memos?

First, the interrogation techniques described in these memos have already been widely reported. [If they were not reported, would it then be justifiable to conceal them? If not, why give this as a reason for divulging them?] Second, the previous administration publicly acknowledged portions of the program -- and some of the practices -- associated with these memos. [From the Cheney-Bush administration was extorted a long-delayed and self-serving acknowledgment, only after the truth became undeniable. This shows if anything how far the pressure of investigation and the threat of prosecution may succeed in bringing the truth to light. It does not show, as implied, that people in power have a tendency to tell the truth in any case. Only affected ignorance of the character of the previous administration could convert the timing and nature of its acknowledgment into a reason for the cessation of pressure. On the contrary: awareness of the circumstances of the admission makes an added reason for prosecution.] Third, I have already ended the techniques described in the memos through an Executive Order. [So a father of a delinquent son might tell his neighbors: yes, my son has committed serial acts of vandalism, arson, and assault, but I now have him under restraint; his crimes are in the past, and can safely be forgotten.] Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. [But if they had not been in the public domain for some time, I might be justified in further denying them.] This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States. [The projected outcome for the United States is here shown to trump the value of truth. We are free to release or suppress, edit, abridge, and transpose, just as we like, so long as our actions tend to cool inflammatory assumptions. We tell the truth in this case because to do so is the thing most to our advantage.]

The entire paragraph is slippery -- a tissue of equivocations. Outcomes are what it cares about. Justice, as justice, is not on the president's mind. The next paragraph turns from the reasons for releasing the memos to the reasons for protecting those who acted on the memos' permission (though contradictory advice was available, and knowledge of it did in fact inhibit some persons, including members of the FBI, from agreeing to follow the memos into the acts of torture the memos justify). Remember, in reading the sentences below, that President Obama is here describing not the men who refused to obey criminal orders, but those who did obey and who might therefore be suspected of having committed torture.

The men and women of our intelligence community serve courageously on the front lines of a dangerous world. [Yes, and some of them have delivered persons for interrogation into the dark back-allies of a dangerous world, in countries that practice torture. To our shame, we have turned out to be one of those countries.]Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. [Is every single American safer for the false imprisonment and illegal torments suffered by an innocent Arab whose sons and daughters learn of the wrong, and learn who committed it, and swear revenge against the country that did such things? Are we safer for this?] We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs. [A calculated distortion which confuses protection with impunity. Those who stood trial would surely be removed from the active service, and the identities of their associates protected by the court. This argument awards a life-contract to every employee of American intelligence, and life-immunity from prosecution for any crime. What sort of persons will clamor to join a service that affords such license?]

President Obama turns at last to address the country, in a tenor of conciliation of which he is the unrivaled master. Yet the deeper difficulties of genuine conciliation are a fact of moral life that he seems prone to simplify and misjudge. He invites mutual forgiveness before the enemies come into sight of each other's wrongs. He does this in many settings and on many issues. He builds the bridge before he sees the treacherous footing on either side.


This is a time for reflection, not retribution.
[A routine echo of Lincoln's Second Inaugural: this is getting to be a tiresome reflex in our new president. Not every human or historical context can earn the echo. To try individuals who have been accused of criminal acts, in a court of law, is not the same as exacting retribution against a country or region. If the ordinary course of the law is to be described as unseemly retribution, then all justice asks too severe a sacrifice of our self-love. Only in tranquil times, it seems, are we allowed to pursue justice as well as "reflect."] I respect the strong views and emotions that these issues evoke. [False candor. The dispute concerns judgments about justice. Judgments are not views, and judgments are not emotions. To describe one's opponent as "getting too emotional" puts oneself in the position of sober sanity, no matter how weak one's argument.] We have been through a dark and painful chapter in our history. [No. This tells a lie in the shape of a truth. We have been through a dark time. But we are many, and we are differentiated. Some, in that dark time, inflicted pain, and some had it inflicted on them. Some were victims, others were executioners. "We" did not all pass that dark time together, or in the same way; we do not deserve the comfort so lightly offered until we face the atrocities with a candor that approaches the whole truth.] But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. [Nothing will be gained except truth and the dignity of an honest self-reckoning.] Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. [A sentence for any leader, of any country, at any time. A sentiment for all seasons.] That is why we must resist the forces that divide us, and instead come together on behalf of our common future. [But truth does not divide us, unless we imagine our country to be dedicated to a value higher than truth. What could that value be? Justice, you say? But what is justice without truth?]

In an afterthought, President Obama reminds the nation that, though his conduct in releasing the documents and suppressing prosecutions before the fact may seem to have emptied the laws of their force, this is not a kind of action of which he generally approves. Nor is it a fair clue to what any chief magistrate properly means to do. We love the laws, though we defy them. George W. Bush, when asked on June 10, 2004 whether torture was ever justified, said it this way: "We're a nation of law. We adhere to laws. We have laws on the books. You might look at these laws, and that might provide comfort for you." So, laws on the books are a sort of consolation, in the absence of laws actually obeyed and kept in force. Barack Obama puts it this way:

The United States is a nation of laws. [And a nation in which the men and women who serve courageously as secret agents are not bound by laws.] My administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. [Except when those ideals conflict with "unity" and the overcoming of collective "pain": these are more important than accurate history or equality under the law.] That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again. [But if a future president reasons as you reason concerning the past, the actions described in the memos will take place again and again.]

The total effect of the release of the torture memos, with the suppression of all prosecutions before consideration of any case and any particular facts, is baffling and self-contradictory. It will be taken by persons with a taste for paradox as evidence of the president's ability to hold two opposed ideas in his mind at once. But his actions and words at this moment are deeply disheartening. They show how a high-sounding construction can be placed on actions whose expediency is clear on their face. There were simpler ways, after all, for the president to admit he cannot afford to alienate the present leadership of the CIA; that the disgraceful practices were in some degree condoned by a group from Congress, in both parties, whom the president would rather not incriminate; that with all the chatter about "taking the gloves off" and the sadism of the popular arts, the spirit of the country itself sank to a dark place in the time of the torture memos. Such an admission would not amount to a reason for surrendering the possibility of prosecutions; but it might begin a process of honest accounting. Nothing of the sort, however, was attempted by President Obama.

It may seem that the worst of the torture amnesty is that by exonerating those who committed illegal acts, it discredits any eventual prosecution of those who gave the orders. The release of agents from the imputation of criminal conduct also implies a redefinition of the acts themselves as not criminal; and if no crime was committed when a person did a thing, no crime was meditated when a person ordered the thing done. Yet the most revealing fact about the president's statement was not its logic of exculpation. It was rather the forgetting, the pressing out of the picture, of certain actors central to the drama.

For we know about these crimes only through the courage of those who dared to speak about them. And they spoke at considerable risk; both moral courage and physical courage were here involved. We know of the deeds of a David Addington or a William J. Haynes III only thanks to the efforts of an Alberto Mora or a Colonel Morris Davis. It should have occurred to President Obama to name these persons as those to whom we Americans owe the largest debt of all. He could have named them as people who by the nature of their deeds can be known and named. They were not secret agents but public exemplars of virtue, in the public life of democracy. The president should have named them, and should have made them the heroes of the day.

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