Friday, April 24, 2009

The Rhetoric of "Torture," President Barack Obama, and the Banana Republic Laureates

--Richard E. Vatz

First off, let's be clear that the issue is Bush Administration legal opinions regarding interrogations and what to do about claims of legal errors, not what to do about soldiers' committing war crimes.

As THE WASHINGTON POST tells the story, “President Obama met with top advisers on the evening of April 15…[f]ive CIA directors -- including Leon E. Panetta and his four immediate predecessors – and Obama's top counterterrorism adviser had expressed firm opposition to the release of interrogation details in four ‘top secret’ memos in which Bush administration lawyers sanctioned harsh tactics.”

On the other side of the issue, supporting the release, were Attorney General Eric H. Holder Jr., Director of National Intelligence Dennis C. Blair and White House counsel Gregory B. Craig, whose colleagues during the campaign recall him expressing enthusiasm for fixing U.S. detainee policy.

The POST reports that Defense Secretary Robert M. Gates supported the disclosures in part because President Obama had promised “that CIA officers would not be prosecuted for any abuse.”

Once released, the significant fight over the consequences to those who approved, formulated and enacted interrogation policy remained. Despite President Obama’s apparent ambivalence – opposition to holding CIA interrogators responsible followed by lack of clarity as to whether he supports holding legally harmless those who formulated the policy – it appears now that he has rejected the creation of a “truth commission,” a notion supported by House Speaker Nancy Pelosi and Senate Judiciary Chairman Patrick Leahy.

In addition to Speaker Pelosi and Sen. Leahy, among the usual suspects of irresponsible, retributive policy we find, of course, THE NEW YORK TIMES’ Spitefulness-in-Chief Paul Krugman.

At least the post-release fight may at last have been resolved for the president.

There are serious arguments on both sides, although there are otherwise serious people whose petty ideological vindictiveness is destructive, filled with unintended consequences and defended in an ostentatious exhibition of misleading argument.

Let’s look at Mr. Krugman’s position and arguments of the retributive left. He quotes President Obama’s first publicly known and now well-known disposition on the issue: “Nothing will be gained by spending our time and energy laying blame for the past.” Mr. Krugman then claims that means: “No prosecutions, please; no investigations; we’re just too busy.” Sorry, but that is an intentional misinterpretation and is not what the president’s statement means or was intended to mean.

The president’s position-as-stated is inadequate, but not because what he’s saying is tantamount to saying “we’re just too busy.” It isn’t.

He is saying that recriminations are not fruitful. What he should have said is that enacting retaliatory policy to punish political adversaries is a nasty business, and one which can be taken up by any succeeding administration and/or new Congress. Unless laws are broken in secret, such a policy makes us a banana republic wherein we begin our polity anew by transforming policy differences into criminal acts by the loyal opposition. This entails using the criminal justice system to adjudicate policy differences. Simply put, this is not a proper action for a democratic state.

In assessing the relationship between liberty and order, Supreme Court Justice Robert H. Jackson stated that if the court were too ideological and impractical regarding free speech that it would “convert the constitutional Bill of Rights into a suicide pact.”

As with some Supreme Court decisions, ignored throughout the interrogation controversy is the claim of important positive consequences that resulted. When the country is attacked, the argument regarding appropriate interrogation in terms of consequences has more important sway; when sufficient time has elapsed to give the American people true or false security, arguments on principle become dominant, and consequences are ignored.

Former Vice President Cheney argued, as the POST summarizes, that ”the [Justice Department] memos will make clear that aggressive tactics yielded valuable intelligence information that prevented further terrorist attacks.“

This information is needed before reasonable conclusions can be made regarding the appropriateness of interrogation techniques. Regarding lawyers who gave legal opinions, it would be unconscionable and counter-productive to hold in legal jeopardy those who gave such opinions as professional judgments.

If we ever want to discourage lawyers from honest appraisal of legal questions and ensure that they follow the line of long-term least resistance, just criminalize those judgments after the fact.

President Obama appears at times to be conflicted when he should be resolute. One hopes that he will recognize the danger of turning our country against itself for political retributive purposes.

Professor Vatz teaches political communication at Towson University


Rion Dennis said...

Your arguments are all well and good, if we were just talking about policy differences and not laws which were passed by the Congress and signed by the Executive and treaties of which were ratified and we are signators. The question is, are we a country of laws or are we a country of men? How can we allow "good intentions" to give our leaders permission to disregard our laws?

All the conservatives who are excusing the egregious abuses of the previous administration, can you tell me what you would consider "torture" (if you don't consider what was done to fit the description) and what you would do if the Obama administration did those things, yet said they did it to keep the country safe and expected that to excuse it? Is there nothing of which that excuse would not excuse?

streiff said...

just dumb on a lot of levels.

First, I've yet to hear of anything being done that isn't done in SERE school.

Second, getting captured by the other side really sucks but when you consider the average GITMO prisoner has gained weight in captivity it can't be too bad.

I think the real torture in this case is what you are doing to the definition of the word and equating having water poured over your face with removal of digits, eyes, etc. So I don't agree that torture happened according to any rational use of the term. (and please don't trot out John McCain's nutso quote about us executing Japanese for waterboarding Americans because in this case he's making stuff up).

We're not excusing abuses, we're simply saying that what happened, especially in the context of dealing with illegal combatants not covered by the Hague and Geneva Conventions, was very limited and has since been demonstrated to be safe, because none of them died or lost limbs, etc., and effective, they talked.

So take your lefty talking points somewhere else.

Rion Dennis said...

As usual you don't even bother to answer my central point, which is that we are a country of laws and if we allow "good intentions" to excuse our elected officials illegal decisions, then is there anything that would not excuse?

You may disbelieve Sen. John McCain, but here is your proof with citation about the US executing Japanese soldiers for waterboarding.

And we won't even talk about those soldiers who Donald Rumsfeld called "bad apples" who perform these tactics at Abu Ghraib who are enjoying jail time for the tactics approved by the Bush Administration. But prosecuting those who approved these tactics would be wrong?

streiff said...

I effectively devastate every point you make in my first sentence.

Your point is nothing more that sophistry rolled up in a Saul Alinsky wrapper.

We didn't torture, ergo, no laws were violated.

Unlike John McCain, I've actually studied WW II war crimes trials. He's wrong. It's is really that simple. There is not a single instance of a Japanese soldier, officer, or civilian being tried for waterboarding a American... or any other Allied soldier, sailor, airman, or marine. Read the case files referenced in your "proof." Oh, there are no case files reference there but there is a grotesquely dishonest law professor who misrepresents the trials. The Japanese in question were tried for killing people using water torture, ie, the forcible ingestion of large quantities of water.

If I follow your Abu Ghraim analogy then anytime a police officer commits a crime, the chief of police should be tried.

You obviously place a higher premium on keeping terrorists comfortable than protecting Americans I don't and thank heaven Bush didn't.

When the next attack happens I'm sure you'll be really proud of what you and your president have accomplished.