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.

Should you wish to publish your own article on the Facts & Arts website, please contact us at info@factsandarts.com.

Browse articles by author

More Current Affairs

Nov 30th 2021
EXTRACT: "So it could well be that, despite the faster spread of the infection, its ultimate health, social and economic impact proves negligible. We simply do not know at this point. But detecting more uncertainty than before, financial markets have reacted with panic. For example, the S&P500 tumbled 2.3% on Friday November 26 only to rise 1.1% on Monday November 29. Most markets gave up between 2% and 4%, which is a pretty substantial one-day fall."
Nov 28th 2021
EXTRACT: "Momentous changes are casting a long shadow on China. The country’s political system will soon undergo a profound reform, pending final approval (a quasi-formality) at next year’s congress of the Communist Party of China (CPC). President Xi Jinping, the Party chairman and the “navigator” of the country, has decided on a new course, abandoning the principle of collective leadership. Xi is leading China away from the path taken by Deng Xiaoping after the terror of the Cultural Revolution, and back toward a system of absolute rule by one person without term limits, as under Mao Zedong."
Nov 25th 2021
EXTRACTS: "”The biggest disappointment in Glasgow was the last-minute watering down of the proposed (and widely supported) agreement to “phase out” the use of coal in energy production. With India providing political cover for China in vetoing this language, the final conference proposal was to “phase down” coal”. ---- “China accounts for more than half of the world’s coal consumption, and has the largest amount of coal-fired generating capacity under construction. Pressed about why his country would not do more in Glasgow to help save the planet, China’s chief negotiator pointed to the commitments in the Communist Party of China’s current Five-Year Plan. So, our future now depends on the CPC’s program. The tragedy for the world is that the Party cannot be phased down, much less phased out, despite the fact that it is a huge threat to the future of all of us.” ------ “To save the planet, robust democratic leadership must be phased up – not phased down, let alone phased out. Rather than merely keeping our fingers crossed and hoping for the best, we should start by calling out the appalling behavior of dictatorships such as China and Russia.”
Nov 22nd 2021
EXTRACT: "The transitory inflation debate in the United States is over. The upsurge in US inflation has turned into something far worse than the Federal Reserve expected. Perpetually optimistic financial markets are taking this largely in stride. The Fed is widely presumed to have both the wisdom and the firepower to keep underlying inflation in check. That remains to be seen."
Nov 14th 2021
EXTRACT: "S&P projects that companies are planning to install 44 gigawatts of new solar in 2022. The year 2020, despite the onset of the pandemic, saw a record-breaking 19 gigawatts of new solar capacity installed in the U.S. So given the bids out there already, it appears that in 2022 solar installers will more than double their best year ever so far. The U.S. currently has 100 gigawatts of solar electricity-generating capacity, so in just one year we are poised to add nearly 50% of our current total. A gigawatt of power can provide electricity to about 750,000 homes. So the 44 new gigawatts we’ll put in next year have a nameplate capacity that would under ideal conditions allow them to power 33 million homes." ----- "Not only is there a lot of good news on the green energy front but there is good news in the bad news for fossil fuels. S&P finds that coal plants are being retired way before the utilities had expected. Some 29 gigawatts of coal retirements are expected from 2020 through 2025. "
Nov 3rd 2021
EXTRACT: "Zemmour’s way of thinking stems from a tradition going back to the French Revolution of 1789. Catholic conservatives and right-wing intellectuals, who hated the secular republic that emerged from the revolution, have long fulminated against liberals, cosmopolitans, immigrants, and other enemies of their idea of a society based on ethnic purity, obedience to the church, and family values. They were almost invariably anti-Semitic. When Jewish army Captain Alfred Dreyfus was falsely accused of betraying his country in the notorious scandal of the 1890s, they were on the side of Dreyfus’s accusers. ---- Germany’s invasion of France in 1940 gave reactionaries of this kind the chance to form a French puppet-government in Vichy. Zemmour has had kind things to say about the Vichy regime. He also has expressed some doubt about the innocence of Dreyfus. ---- None of these views would be surprising if they came from a far-right agitator like Jean-Marie Le Pen. But Zemmour is the son of Sephardic Jewish immigrants from Algeria who lived among the Muslim Berbers."
Oct 27th 2021
EXTRACT: "performed strongly in last month’s parliamentary and regional elections. Officially, Communist Party candidates took 18.9% of the popular vote for the State Duma (parliament), compared to nearly 49.8% for the Kremlin’s United Russia party. But the Communists refused to recognize the results, insisting that the vote was rigged. And, indeed, some experts estimate that they should have gotten around 30% of the vote, with United Russia taking about 35%."
Oct 22nd 2021
EXTRACT: "Powell was charismatic in the true sense of the term. Nowadays, this description is too often used to indicate an ability to attract supporters or generate celebrity interest. Internet lists of those who are regarded as charismatic include characters as varied as Adolf Hitler, Bono, Donald Trump, George Clooney, and Rihanna. But the ancient Greeks and Saint Paul used “charisma” to describe values-based leadership infused with a charm capable of inspiring devotion. The Greeks believed that this quality was a gift of grace, while Christian theology regarded it as a power given by the Holy Spirit."
Oct 17th 2021
EXTRACTS: "But property-sector woes are not the only economic danger China faces in 2021-22. The Chinese government’s mounting crackdown on the country’s burgeoning tech sector may pose an even greater threat." ---- "According to a recent study by McKinsey & Company, the share of Chinese urban employment supported by private enterprises more than quadrupled between 1995 and 2018, from just 18% to 87%. The share of exports generated by the private sector more than doubled over the same period, from 34% to 88%. And private-sector fixed-asset investment jumped from 42% to 65% of the total. The message in the data is clear: clamping down on the private sector and threatening innovators is not the way to ensure sustained rapid growth. Chinese entrepreneurs can read the writing on the wall. They understand that their political and regulatory room to maneuver is shrinking, and that the balance has shifted in favor of state-owned firms and public officials. And they understand that this uneasy atmosphere is likely to persist."
Oct 16th 2021
EXTRACT: "We designed a programme that incorporated data from over 300 million buildings and analysed 130 million km² of land – almost the entire land surface area of the planet. This estimated how much energy could be produced from the 0.2 million km² of rooftops present on that land, an area roughly the same size as the UK."
Oct 6th 2021
EXTRACT: "Britain in the 1950s was wedded to the US, acting as a partner rather than leading the charge. Now, while the UK continues to support the US, the influence it has seems negligible. While it may bring comfort to the UK to feel it is a partner to a superpower, being its stooge or subordinate is an unpleasant place to be, no matter how much you tell yourself it values your opinion."
Oct 6th 2021
EXTRACT: "That was then. Now, the Chinese government has doubled down, with President Xi Jinping throwing the full force of his power into a “common prosperity” campaign aimed at addressing inequalities of income and wealth. Moreover, the regulatory net has been broadened, not just to ban cryptocurrencies, but also to become an instrument of social engineering, with the government adding e-cigarettes, business drinking, and celebrity fan culture to its ever-lengthening list of bad social habits. All this only compounds the concerns I raised two months ago. The new dual thrust of Chinese policy – redistribution plus re-regulation – strikes at the heart of the market-based “reform and opening up” that have underpinned China’s growth miracle since the days of Deng Xiaoping in the 1980s. It will subdue the entrepreneurial activity that has been so important in powering China’s dynamic private sector, with lasting consequences for the next, innovations-driven, phase of Chinese economic development. Without animal spirits, the case for indigenous innovation is in tatters."
Oct 5th 2021
EXTRACT: "Wartime nostalgia plays an important part in Britain’s instinctive fondness for the special relationship. Like former Prime Minister Tony Blair in the run-up to the invasion of Iraq in 2003, some British politicians might believe that the United Kingdom is the only European country with serious armed forces and the political will to use them. Prime Minister Boris Johnson, like Blair before him, seems to fancy himself a modern-day Churchill. Unfortunately (or not), Britain’s military power is insignificant compared to what Churchill could command in 1944. Wartime nostalgia has drawn Britain into several foolish American wars, which other European countries were wise to avoid."
Sep 24th 2021
EXTRACTS: "We have found that 47 million American adults – nearly 1 in 5 – agree with the statement that “the 2020 election was stolen from Donald Trump and Joe Biden is an illegitimate president.” Of those, 21 million also agree that “use of force is justified to restore Donald J. Trump to the presidency.” Our survey found that many of these 21 million people with insurrectionist sentiments have the capacity for violent mobilization. At least 7 million of them already own a gun, and at least 3 million have served in the U.S. military and so have lethal skills. Of those 21 million, 6 million said they supported right-wing militias and extremist groups, and 1 million said they are themselves or personally know a member of such a group, including the Oath Keepers and Proud Boys." ----- "..... the Jan. 6 insurrection represents a far more mainstream movement than earlier instances of right-wing extremism across the country. Those events, mostly limited to white supremacist and militia groups, saw more than 100 individuals arrested from 2015 to 2020. But just 14% of those arrested for their actions on Jan. 6 are members of those groups. More than half are business owners or middle-aged white-collar professionals, and only 7% are unemployed."
Sep 11th 2021
EXTRACT: "That long path, though, has from the start had within it one fundamental flaw. If we are to make sense of wider global trends in insecurity, we have to recognise that in all the analysis around the 9/11 anniversary there lies the belief that the main security concern must be with an extreme version of Islam. It may seem a reasonable mistake, given the impact of the wars, but it still misses the point. The war on terror is better seen as one part of a global trend which goes well beyond a single religious tradition – a slow but steady move towards revolts from the margins."
Sep 11th 2021
EXTRACTS: "Is it not extraordinary that in a country that claims to be as enlightened and advanced as ours, the combined wealth of three individuals – Amazon founder Jeff Bezos, Microsoft founder Bill Gates, and investor Warren Buffett – exceeds the total wealth of the bottom half of Americans? One has to return to the days of the pharaohs of Egypt to find a parallel to the extreme wealth inequality that we see in in America today." ...... "The top tax rate remained above 90 percent through the 1950s and did not dip below 70 percent until 1981. At no point during the decades that saw America’s greatest economic growth did the tax on the wealthy drop below 70 percent. Today it is somewhere around 37 percent. President Biden’s American Families Plan would increase the top tax rate to 39.6 percent – a fairly modest alteration, albeit in the right direction. It is true that there was a time when the top marginal tax was even lower than it is today: in the years leading up to the Great Depression it hovered around 25 percent."
Sep 7th 2021
EXTRACT: "But Biden can’t be blamed for the rise of the Taliban, or the fragile state of a country that has seen far too many wars and invasions. The US should not have been there in the first place, but that is a lesson that great powers never seem to learn."
Sep 4th 2021
EXTRACT: "The world is only starting to grapple with how profound the artificial-intelligence revolution will be. AI technologies will create waves of progress in critical infrastructure, commerce, transportation, health, education, financial markets, food production, and environmental sustainability. Successful adoption of AI will drive economies, reshape societies, and determine which countries set the rules for the coming century." ----- "AI will reorganize the world and change the course of human history. The democratic world must lead that process."
Sep 1st 2021
EXTRACT: "Although the Fed is considering tapering its quantitative easing (QE), it will likely remain dovish and behind the curve overall. Like most central banks, it has been lured into a “debt trap” by the surge in private and public liabilities (as a share of GDP) in recent years. Even if inflation stays higher than targeted, exiting QE too soon could cause bond, credit, and stock markets to crash. That would subject the economy to a hard landing, potentially forcing the Fed to reverse itself and resume QE." ---- "After all, that is what happened between the fourth quarter of 2018 and the first quarter of 2019, following the Fed’s previous attempt to raise rates and roll back QE."
Sep 1st 2021
EXTRACT: "Today’s economic challenges are certainly solvable, and there is no reason why inflation should have to spike."