Apr 24th 2009

Follow the Evidence

Barack Obama's initial statement on the torture memos and his remarks at CIA headquarters suggested that the release of the facts of the case would be accompanied by a policy of refraining from prosecutions. That preference was repeated by Rahm Emanuel last weekend in a televised interview on This Week. But the president, in speaking to the press on Tuesday, shifted ground, and while still promising immunity for agents who believed themselves to be operating within the law, he was careful to intimate no such support for the lawyers who worked up new laws in secret to construct an illegal rationale for torture. Yesterday, in testimony before Congress, Hillary Clinton said once more that agents would be spared who had stayed "within the four corners of the law," but willful distortions of legal understanding by drafters of new laws were another matter. Finally today a New York Times story by Charlie Savage reports the categorical statement by Attorney General Eric Holder that "No one is above the law." His department, said Holder, will "follow the evidence wherever it takes us."

The adjustment of stance is now definitive, and it is salutary. Yet the process by which the policy changed leads one to speculate about the temperamental qualities that showed so clear a face of ambivalence in President Obama on successive days. He had set the law in one eye and the spirit of conciliation in the other, and for a while imagined that publication of a series of crimes could inaugurate an agreeable national forgetting. He preferred, he said -- he had said it on his website as soon as he was elected -- to look forward and not back. He wished not to appear to score cheap points against his predecessor. And one of the marks of his own political character is an evident distaste for bluster and harangue. The farthest he tips toward the natural temper of the accuser or the unsentimental judge is the exhibited emotion of paternal outrage under firm control.

There was also visible in Obama in these days a certain confusion of roles. He has not settled yet into the posture of a leader--a role that carries distinct privileges but also distinct limitations. He slides between a sense of himself as leader, as a popular organizer, and as a national healer. His town meetings on the economy have cast him in the second role; his statement on the release of the torture memos showed him trying out the third. But he did so at a cost to his stature as chief magistrate -- the leader of a constitutional democracy, whose duty it is to "take care that the laws be faithfully executed." You cannot at once support the laws and issue a preemptive pardon to those who knowingly distort or knowingly break the laws.

It is not a matter of looking back or looking forward but of looking at.

What have we done as a country over the past eight years? What wrong acts were performed in our name on the pretext of national security? How far have those actions harmed our fame in the world, and how deeply have our institutions been corrupted by a system of concealment devised to perpetuate those actions and to shelter them from inspection? Among those who broke laws by ordering criminal acts, who are those that remain even now in government, and to what extent can they be relied on not to break the laws again? Do Americans understand the Constitution better today than we did in 2002? We: not just secret agents and government officials, but the civilian lawyers in that time of panic who urged such nostrums as "torture warrants" (as Alan Dershowitz did) and representatives who said such things as "I'm OK with it not being pretty" (as Jane Harman said of extreme interrogations). We are at a moment of national inquest. It was not in the president's power to launch and contain it in a single stroke.

In an essay well known to the American founders, "That Politics may be Reduced to a Science," David Hume wrote that "A constitution is only so far good, as it provides a remedy against maladministration." Mere knowledge that crimes were committed is not in itself a remedy. It is necessary that the people responsible for acts of maladministration be rooted out and exposed to public opprobrium. If they committed crimes, they ought to be punished just as other citizens are, without any benefit owing to their official status. Praise of the good is meaningless where blame of the bad is prohibited. So long as servile lawyers and compliant executioners, who work in the dark, continue to be sheltered in the dark, every whistle-blower is at risk by his very loyalty to a public good that trusts the light of day.

Let us never forget that the Bush-Cheney administration, under the Military Commissions Act of 2006--a law drafted by some of the same parties that devised the rationale for torture--was given the power to seek punishments by secret tribunals against defendants withevidence obtained under torture. We are speaking not about a few mistakes, but an influential distortion of the American constitution, put into practice by military police and military lawyers, after being drafted by government lawyers higher up, all with the consent of both houses of Congress.

And the rottenness penetrated deeper down: from the extralegal culture of an administration drawn to adventurism in every realm, to a popular culture whose apparent sources were quite different. A TV show like 24 contributed heavily to the legitimation of sadism. The star of the show, Kiefer Sutherland, son of the actor Donald Sutherland, a famous anti-war activist of the 1960s and 1970s, doubtless squares it with himself by saying that his show is only fiction. But all fictions are influential: we don't try them on in our minds because they mean nothing to us but because they mean something to us. A series like 24 is as morally regressive for Americans as an Arab show would be, playing across the Muslim world, in which every episode ended with the ritual stoning of a woman who had transgressed the law by falling in love with an infidel. The costumes may differ, but under the burnoose and khaki the surrender to violence is just the same.

The Bill of Rights outlaws torture, explicitly, in two of its ten amendments, the fifth and the eighth. All Americans ought to know this; and President Obama might take the opportunity to say it some day: it could not hurt his position. "No person," says the fifth amendment, "shall be compelled in any criminal case to be a witness against himself." Torture is compulsion; its purpose, when used as evidence in a military tribunal, is to compel the prisoner to serve as a witness against himself. As Leonard Levy points out in Origins of the Bill of Rights, the history of this particular right lies in the horror of the American founders at the arbitrariness of Roman law and its legacy of ex officio oaths and coerced confessions. The non-conforming Protestants whose spirit animates the Constitution were looking to assure that nothing in the history of this country would resemble the Star-Chamber proceedings under Charles I. The language of the eight amendment is even plainer: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Writes Levy: "Cruel and unusual punishment referred to methods of punishment as well as their severity; they had to be as swift and painless as possible and in no circumstances involve a lingering death or any form of torture." Any form of torture: let those words stand alone against the hairsplitting sophistries of John Yoo and Jay Bybee.

It has sometimes been made a special plea for the contempt of the Bill of Rights in the Bush-Cheney administration that the laws we live by were intended to be only for use by citizens. A weaker version of our laws may thus be all we choose to allow to our enemies. But that plea neglects a precedent and suppresses a fact. In previous wars, the rule governing the morale of America toward our enemies has been that "we bring the Constitution with us wherever we go." And indeed, how could we hold ourselves up as models for emulation unless we did so? At the same time, a disturbing feature of the Military Commissions Act has often been forgotten. It gives the president a free hand to declare an American citizen to be an enemy combatant and thereby to deprive a citizen as surely as an alien of rights under the Constitution.

A mood of national unity has thus far yielded an impressive indulgence toward the instigators of torture. It has, in fact, led to some curious refusals to blame, even among those who first detected the scandal of the new policies. Thus both Jane Mayer in The Dark Side and Barton Gellman in Angler, as well as Ron Susskind in The One Percent Solution, stood back and declined to draw the inference from their own discoveries that any motive darker than misguided patriotism could have driven the vice president and the president and their lawyers. Jack Goldsmith, who fought against the Yoo-Bybee memoranda behind the scenes, also took this sympathetic line in public. But actions, not motives, have to be the subject of any merely legal investigation.

People have reasons for the things they do, and sometimes they do bad things for good reasons. Sometimes also they do bad things for bad reasons. Were the governors and lawyers at the helm of the country beside themselves with perfervid pleasure at the new powers a national disaster had suddenly placed in their hands? It seems wrong to say it that way; but wrong, not because it is false but because it is conjectural. Yet the unkind hypothesis is no more conjectural than the saccharine notion that these men were high exemplars of an unselfish prudence, conscience- stricken by the disaster, and determined to follow the grim dictates of necessity even at the expense of American liberty and American laws. No: the unpleasant story and the pleasant one are equally speculative. The truth about what Bush and Cheney and Addington and Yoo and Cambone and Feith and a handful of others did, must be known before it can be judged, and all that can be judged is the content of their actions.

The proof that it was possible to do other or better than they did, was brought out in a Timesstory today by Scott Shane, who quotes Robert Mueller III, the director of the FBI, an opponent of the permissive laws on torture who forbade collaboration in those laws by his agents. Asked whether any attacks on the United States had been disrupted by intelligence obtained through torture, Mueller said: "I don't believe that has been the case." He later confirmed the statement through a spokesman.

But what if torture "works"? The evidence is that it does not, because a man in constant fear under the threat of extreme pain will say anything. But this is a question that opponents of the practice ought to answer directly and without reference to pragmatic concerns. The question is whether we shall or shall not have a law that places a burden of prosecution always against the person who would employ such methods. People will do awful things, and violent things, when their backs are against the wall; we all know this; the question is: shall we have a law that gives permission and clearance? That was always what was at stake, and arguments about degrees of efficacy can only serve to conceal the depth of disagreement over the principle. As John McCain said in a moment for which he can still be remembered with respect: "It's not about who they are. It's about who we are." Romans of the imperial age practiced torture against enemy combatants on an imposing scale of unrestraint. The gloves were really off. Any viewer of the final montage of Kubrick's film of Spartacus will remember the captives of the slave rebellion nailed on their crosses like trees of that peculiar climate. The Christian religion was founded against the empire that did such things. It incorporated into its central symbol the purest revulsion from torture.

Can an investigation be pursued without the appearance of political opportunism? The people who are the first to raise that objection are people who will make the charge in any case. They like to speak, in a canting phrase, of "the danger of criminalizing political differences." But the depth of the cynicism in such a statement should surprise us. It suggests that we understand in advance that politics is essentially a criminal activity. If that were so, the United States would have boiled in its own acids long ago. What the objectors are actually worried about is not the criminalizing of political differences, but the politicizing of criminal differences. If a party in power has advanced its interests substantially by criminal means, it may have something to fear from the other party's success in presenting itself as non-criminal. But we are nowhere close to such a millennium; and it may be a cure for skepticism to recall that until this week no American had done more to rouse the conscience of the country against torture than John McCain.

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