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.

If you wish to comment on this article, you can do so on-line.

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

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."
Aug 27th 2021
EXTRACT: "To be sure, they have focused on their agenda, which is totally misguided—not by our own account but by the account of the majority of the American population, who view the Republican party as one that has lost its moral footing to the detriment of America’s future generations, who must now inherit the ugly consequences of a party that ran asunder."
Aug 21st 2021
EXTRACTS: "Now that so many sad truths about Afghanistan are being spoken aloud, even in the major media – let me add one more: The war, from start to finish, was about politics, not in Afghanistan but in the United States. Afghanistan was always a sideshow."--- "....the 2001 invasion was fast and apparently decisive. And so it rescued George W. Bush’s tainted presidency,..." --- "Bush’s approval shot up to 90% and then steadily declined,..."
Aug 17th 2021
EXTRACT: "The Taliban’s virtually uncontested takeover over Afghanistan raises obvious questions about the wisdom of US President Joe Biden’s decision to withdraw US and coalition forces from the country. Paradoxically, however, the rapidity and ease of the Taliban’s advance only reaffirms that Biden made the right decision – and that he should not reverse course. ...... The ineffectiveness and collapse of Afghanistan’s military and governing institutions largely substantiates Biden’s skepticism that US-led efforts to prop up the government in Kabul would ever enable it to stand on its own feet. The international community has spent nearly 20 years, many thousands of lives, and trillions of dollars to do good by Afghanistan – taking down al-Qaeda; beating back the Taliban; supporting, advising, training, and equipping the Afghan military; bolstering governing institutions; and investing in the country’s civil society. .... Significant progress was made, but not enough." ....... "That is because the mission was fatally flawed from the outset. It was a fool’s errand to try to turn Afghanistan into a centralized, unitary state. "
Aug 6th 2021
EXTRACT: "But even in the US, which is more lenient than most countries, the principle cannot be absolute. Inciting imminent violence is not permitted. Donald Trump’s speech on January 6, urging the mob to storm the US Capitol, certainly came close to overstepping this boundary. It was a clear demonstration that language can be dangerous. What the internet media has done is raise the stakes; “fighting words” are spread around much faster and more widely than ever before. This will require a great deal of vigilance, to protect our freedom to express ourselves, while observing the social and legal bounds that stop words from turning into actual fighting. "
Jul 27th 2021
EXTRACT: "When it comes to the Chinese economy, I have been a congenital optimist for over 25 years. But now I have serious doubts. The Chinese government has taken dead aim at its dynamic technology sector, the engine of China’s New Economy. Its recent actions are symptomatic of a deeper problem: the state’s efforts to control the energy of animal spirits." ---- "... the Chinese economy, no less than others, still requires a foundation of trust – trust in the consistency of leadership priorities, in transparent governance, and in wise regulatory oversight – to flourish. --- Modern China lacks this foundation of trust ."
Jul 25th 2021
EXTRACT: "It seems that they are, as the last 18 months have seen a remarkable expansion of the central banks’ fields of activity, largely driven by their own ambitions. So they have moved into the climate change arena, arguing that financial stability may be put at risk by rising temperatures, and that central banks, as bond purchasers and as banking supervisors, can and should be proactive in raising the cost of credit for corporations without a credible transition plan. That is a promising new line of business, which is likely to grow. ---- Central banks are also trying to move into social engineering, specifically the policy response to rising income and wealth inequality, another hot button topic with high political salience."
Jul 25th 2021
EXTRACT: "The EU’s ambitious unilateral climate strategy will transform Europe into a trade fortress, encourage green protectionism worldwide, and give other regions the opportunity to develop using cheaper energy. And without China, India, and the United States on board, other countries will be careful not to follow the EU in its self-appointed role as the world’s green guinea pig. If Europe is not careful, it will risk finding itself in a climate club of one. "
Jul 9th 2021
EXTRACT: ".... ruminants belch and fart methane, an extremely potent greenhouse gas. As a result, rearing beef cattle brings about, on average, six times the contribution to global warming as non-ruminant animals (for example, pigs) producing the same quantity of protein. ..... if projected to 2050 [beef production], would use 87% of the total quantity of emissions that is compatible with the Paris climate agreement’s objective of staying below a 2° Celsius increase in temperature."
Jul 8th 2021
EXTRACT: " .... while China’s leaders never mention it, they are just as embittered over Russia’s theft of Chinese territory in the nineteenth century as they are over the West’s imperial predations. With Western imperialism having been largely rolled back, it is Russia’s continued occupation of historic Chinese territory that stands out the most to ordinary Chinese observers. For example, the city of Vladivostok, with its vast naval base, has been a part of Russia only since 1860, when the tsars built a military harbor there. Before that, the city was known by the Manchu name of Haishenwai." ---- "There is also a demographic argument for Putin to consider: the six million Russians spread along the Siberian border face 90 million Chinese on the other side. And many of these Chinese regularly cross the border into Russia to trade (and a good number to stay)."
Jul 7th 2021
EXTRACTS: "According to a new analysis by researchers at Brown University, America’s two-decade war in Afghanistan cost it nearly $2.3 trillion. Now, Afghanistan’s neighbors – Pakistan, Iran, China, India, and the Central Asian countries – are wondering just how much it will cost them to maintain security after the United States is gone." ----- "After clandestinely supporting the Taliban as a means to undermine the US war effort, Russia now fears broader destabilization in Central Asia and beyond." ---- "Similarly, after having made nice with the Taliban, China also now fears the greater regional instability that the US withdrawal may incite. In addition to disrupting Chinese President Xi Jinping’s Eurasia-spanning Belt and Road Initiative, a revitalized Taliban could re-energize the Islamist extremist threat in China’s western Xinjiang province."
Jul 1st 2021
EXTRACT: "When former Fed Chair Paul Volcker hiked rates to tackle inflation in 1980-82, the result was a severe double-dip recession in the United States and a debt crisis and lost decade for Latin America. But now that global debt ratios are almost three times higher than in the early 1970s, any anti-inflationary policy would lead to a depression, rather than a severe recession. ---- Under these conditions, central banks will be damned if they do and damned if they don’t, and many governments will be semi-insolvent and thus unable to bail out banks, corporations, and households. The doom loop of sovereigns and banks in the eurozone after the global financial crisis will be repeated worldwide, sucking in households, corporations, and shadow banks as well. ---- As matters stand, this slow-motion train wreck looks unavoidable."
Jun 19th 2021
EXTRACT: "Xi Jinping’s call for friendship gives us an opportunity to examine Chinese politics on both the domestic and international stage. On the face of it, it suggests the possibility of rapprochement between the rich liberal democracies represented by the G7 and the authoritarian Chinese state. However, despite appearances of a call for a closer relationship, there is more than one way of being friends – and Xi’s idea might be somewhat different to what many in countries attending the G7 might expect."
Jun 12th 2021
EXTRACT: "China’s recently published census, showing that its population has almost stopped growing, brought warnings of severe problems for the country. “Such numbers make grim reading for the party,” reported The Economist. This “could have a disastrous impact on the country,” wrote Huang Wenzheng, a fellow at the Center for China and Globalization in Beijing, in the Financial Times. But a comment posted on China’s Weibo was more insightful. “The declining fertility rate actually reflects the progress in the thinking of Chinese people – women are no longer a fertility tool.” "
Jun 12th 2021
EXTRACT: " I remember recounting fellow leaders of the story of a Rwanda schoolboy caught up in the genocide of the 1990s and now immortalized in the Kigali Genocide Memorial museum, where, in a section devoted to children, one can find his photograph and a plaque that reads: ----- David, age 11 ...... Ambition: to be a doctor ...... Favorite sport: football ...... Favorite hobby: making people laugh ...... Death: by mutilation ...... Last words: the UN are coming to save us ----- In his idealism and innocence, David believed the international community would save him and his mother. We didn’t. "