Under Barack Obama, the United States government has left the era of Bush-Cheney torture behind. In last week’s address on closing Guantanamo, Obama affirmed the rule of law against the Congressional Democrats, led by Senator Reid, who seem anxious once again to cave in to the belligerent Cheney. As Obama rightly pointed out, “Guantanamo is a mess” and undoing what it represents is more difficult than simply releasing or transferring those who have been tortured.
But there is a much more disturbing and inconsistent part of Obama’s speech, one that calls for the indefinite or “preventive detention” of some. Presumably, these include members of Al-Qaida who have been tortured, cannot be tried in civilian courts or the ad hoc military tribunals he proposes (slightly less ad hoc than the Bush-Cheney rubber stamps, but far removed from a court of law), and who must be prevented from acting against the United States. One might doubt, however, how reliable the information is even in this hopefully small number of cases. Obama is listening to his advisors here, those warning him about the political consequences of another terror strike in the United States involving anyone who is released from American custody. He is catering to the fear-mongering drumbeat from Cheney and the mainstream news media, the idea that torture is the American way, good as Jack Bauer, needed to “protect us.” Here is a grave debility of the two-party system, with campaign financing and media control in the hands of the rich. There are always renewed moves to the right instigated by the more far right of the two parties and focused on international affairs. The Democrats are paralyzed with fear at being thought soft on “national security.” Such fears are central to electoral competition.
Yet in the study of foreign affairs, such insights are isolated. In his 1984 revised introduction to American Diplomacy, George Kennan unusually referred to “our military-industrial addiction” sustained by the dysfunctional baiting by the more right-wing party, today led explicitly by authoritarians (advocates of “commander in chief power” in emergencies like “the war on terror”), criminals (advocates or perpetrators of torture and aggression) and imperialists (neo-cons), against the not very different and compatively diffident Democrats. Even a brilliant political leader and a new majority does not alter this dynamic. For the Democrats still fear Republican revivial in the next election and make the worst of Republican fears, for instance about closing Guantanamo their own. In Must Global Politics Constrain Democracy (Princeton, 1999), I argued that the anti-democratic feedback of international politics limits struggles for reform at home (it can be used to bait and limit or defeat reform or anti-war movements, for instance, as the Republicans constantly bait the Democrats and the Democrats cave in). International and domestic politics thus have a complex interplay or dialectic, realized most sharply in elections and to suppress or isolate movements from below that sustain a common good. I do an internal critique of all the versions of realism including Kennan’s and neo-realism. Inconsistently with his new 1984 introduction, Kennan’s original book recommends that democracy be kept out of international politics which allegedly must be handled by “professional diplomats.” His example is supposedly Woodrow Wilson at Versailles. But the military-industrial addiction and aggressive and addiction to losing wars cannot be stopped by such professional diplomacy; they can only be halted, as I suggest, by a mass democratic movement from below creating pressure for a more decent possibilities in foreign policy. In addition, neorealists reinterpret Kennan’s straightforward if reactionary distinction – professional diplomacy versus democratic influence - as a much more abstract confused matter of philosophy of science. An impenetrable difference of levels supposedly exists between international politics and comparative or domestic politics; there are only powers in international affairs – international politics must abstract from domestic regime structure and a democracy, a tyranny, a colonialist regime, an anti-colonialist regime, and so forth all putatively have the same national interests. A neorealist supposedly cannot ask the question my book poses: what is the relation between fierce international power rivalry abroad and democracy at home? I answer: a devastating one. Yet in response to this question which I posed to him at a lecture he gave at the Graduate School of International Studies, Ken Waltz suggested “a theory cannot deal with everything.” Even more unintentionally humorously, Krasner, for whom the national interest is the longterm interest of the state, suggested inconsistently: in the case of Vietnam, the anti-war movement represented the national interest.
In the case of today’s American torture, the mainstream media are plumbing a new depth of decadence. They take Cheney’s war criminal stance and previous war crimes – as chief torturer, chief advocate of water-boarding et al – with acquiescent “seriousness.” As long as one once was in a high position, one can advocate any crime toward “the enemy” – and the mainstream press will provide a chorus of approval or at least acceptance about your supposed gravity and never use the word crime in relation even to the most monstrous violations of American and international law. Every war criminal in the world now need merely point to the Bush-Cheney regime and its echo, the American press, to justify its atrocities.
Now Obama is not the spineless Congressional Democratic leadership, who respond only to Republican threats (even when the Republicans are a crazed, rightwing rump party). But he is commander in chief providing security for all Americans and probably is motivated to the latest moves by a misguided advice from his advisors (don’t be a civil libertarian; isolate them; strive for a middle ground against Cheney) given the pressure of Cheney and the Republicans. Now Obma has moved the Democrats in this unusual historical situation: his election represents a watershed on many issues, for instance, commitment to serious investment in a green economy as a direction to restore America’s productivity and fight global warming. On the central issue of restoring the rule of law in America, he initially seemed as good, but has become, despite courageously releasing the torture memos, much more ambiguous.
Indefinite detention without trial is, as Senator Russ Feingold said in a critical letter this week to the President, outside the rule of law. It violates habeas corpus, which since 1218 has been the cardinal point of Anglo-Saxon and Anglo-American law. To combine indefinite detention with but recently ceased torture (and whether torture has fully ceased for instance at Bagram is doubtful) is to violate the Constitution, treaties the United States has signed and American law. Indefinite detention may be as bad as torture. Both are characteristic of tyranny. Since torture often renders the tortured crazy – the American citizen Jose Padilla was described by his lawyers as being in shock, a “chair,” pathetically concerned with defending the United States at all costs, and unable to participate in his own defense – it is unclear that many of those released from Guantanamo, often broken men and teenagers, would be able or likely to participate in attacks against the United States on American soil or elsewhere. But leaving this issue aside, the President’s duty is to uphold the Constitution of the United States. The idea propagated by Ben Wittes of the Brookings Institution/Weekly Standard that the President pledges simply to protect all Americans is inaccurate – the President pledges to uphold the Constitution. Moreover, this bit of Cheneyism, in fact, makes American citizens and soldiers more insecure (by committing crimes against putative terrorists, the American government breeds many more enemies and their sympathizers) and cannot be put into practice, without sacrificing what America stands for when it is decent (as Obama also reminds us); the rule of law and the equal basic liberties of citizens. So Obama is moving here in a contradictory direction, one which undercuts the rule of law and decency which he is also working to uphold. Further, this danger is compounded even if the Obama administration did not go in for indefinite detention. If Obama does not allow an independent or bipartisan investigation into torture (or if Attorney General Holder does not appoint an independent counsel to investigate these crimes), then any future President of either party can, counting on the Cheney precedent and the Obama shielding of the criminals, invoke police state powers even to detain indefinitely or torture any American citizen deemed an “enemy.” That President would obvious use such practices against “enemy combatants” who are often individuals picked up off the street or on the word – our soldiers and intelligence agents don’t speak the relevant languages – of interested clients (in Afghanistan, General Dostum, a murderous war criminal but a Bush ally was happy to finger his enemies, not America’s, for secret torture in indefinite detention). So Obama is moving away from the rule of law for supposed political reasons (“to protect Americans”) in a way which will, despite his efforts to restore the rule of law, ultimately threaten the death both of democracy and the rule of law (what he rightly names American values worth defending).
In the New York Times last Sunday, a front page article speculated that Obama might appoint a fifth Supreme Court Justice to enhance Presidential power at the expense of the rule of law. Since there are 4 hard line votes for authoritarianism or tyranny in emergencies on the Court (Roberts, Scalia, Alito, Thomas), one more would pretty well destroy the Constitution. The article speculated that between Diane Wood and Elana Kagan, Obama might choose Kagan to advance his views on executive power, including indefinite detention.
Fortunately, the article underestimated Obama’s anti-racism and his affection for the rule of law. Judge Sonia Sotomayor had been attacked by New Republic and other right-wing gossips and her name had disappeared from consideration in the mainstream media. But she is a serious, moderate Puerto Rican-American judge, originally appointed first by George H.W. Bush and then to a higher judgeship by Bill Clinton. She grew up in a housing project in the Bronx and is outspoken on the importance of diversity of experience, particularly of those who come from the oppressed and have a sense of their lives, in reaching sensible decisions on the Supreme Court (the Lily Ledbetter travesty comes to mind). That Obama nominated her against an ignorant campaign to undermine her is admirable (Glenn Greenwald and others spoke out about the slanders against her very forcefully). Apparently, she does not have a record on executive power issues (and one might have hoped that the nominee would be against the tyrannical/Carl Schmittian claims recently advanced). But she is a serious advocate of the rule of law, and support by her for preventive detention is, prima facie, unlikely. Thus, Obama continues to pursue a complicated path to restoring the rule of law. He seems to have some long range vision or intent in this direction. So far what he has done is not enough. Some recent moves have been very bad. Still international pressure grows and other reports – the Office of Professional Responsibility in the Justice Department’s on the travesty of law represented by the torture memos, for example, is still in the offing – will continue to build momentum toward holding those who made America the world’s greatest torture and rogue nation accountable (even worse than “my nation – the most violent government in the world” as Martin Luther King once put it in his speech at the Riverside church against the Vietnam War). We should all make every effort to increase that pressure.