One of my colleagues has been very concerned about a possible misrepresentation of the serious reporting that goes on in the New York Times or on National Public Radio in my criticisms of their role as leaders and reflections of the mainstream press’s euphemisms about international law. To summarize my point, according to this style of journalism: others commit aggression or torture but the US never does, certainly not in invading Iraq, or in its treatment of prisoners at Guantanamo and elsewhere. My colleague feels that he has gained genuine insights into the harmfulness of Bush administration practices from reading and listening to the Times and NPR. I agree with him that serious journalists work for these institutions. But we disagree about what is at stake in the euphemisms for torture (or aggression) standardly employed at these institutions, and recently extolled by the ombudsman for NPR, Alicia Shepherd. Glenn Greenwald has argued very effectively about this matter (Shepherd has refused to debate with him) and his posts with citations to Shepherd and to a revealing brief questioning of Shepherd this week on NPR are here (NPR has been deluged by the critical response of listeners to Shepherd's position). My colleague says that my criticism of the Times and NPR – of the mainstream press with regard to torture - is unfair or at least, that he cannot understand the issue being raised. This is a fundamental issue about the law, justice and whether the Obama administration is contravening or affirming much of the new international American prison system, one of very broad interest and importance and worth underlining.
To him, I responded: the issue which you say you cannot make out is as follows: international law, in particular the Geneva Conventions and the Convention against Torture (signed by Reagan in 1988) and ratified by Congress in 1994 outlaw the torture of prisoners even in cases of invasion and civil war (see Article 3 of the Convention against Torture). Ratified by Congress, the Convention is American law, but in any case, Article 6, section 2 of the American Constitution, the Supremacy Clause, makes treaties signed by the US government the highest law of the land. Not only is torture illegal (and immoral), but even Susan J. Crawford, the Cheney and Addington appointee to run the show-trial Guantanamo hearings, refused to allow the case of Mohammed Al-Qahtani to proceed because the "combination of techniques" used against him, she said, amounted to torture. These did not include waterboarding (see American and international laws against torture here). Torture, in other words, is not a rare phenomenon toward the people held secretly by the United States, but during the Bush administration, sadly, a routine one. Even Crawford acknowledged the crimes of the last administration.
There is a euphemism which Alicia Shepherd, the NPR ombudsman, and NPR routinely use: "enhanced interrogation techniques." (strikingly, that is a literal translation of "verschaerfte Vernehmung," the Nazi term for what they did to prisoners). She explicitly says that she approves that term because the Bush-Cheney administration chose it as a substitute and because to call an act torture has legal consequences. As an NPR questioner objects this week, one does not call murder "enhanced argumentative techniques" (his wording is silly, but the point he is making is absolutely right). But she says torture - and she says she would personally call it torture - is not torture, but must be called something else. Listen at the end of Greenwald, July 2 "The Still Growing NPR `Torture' Controversy" here.
But the job of a reporter is to get the facts, and crimes, for example, murder, are facts. One may ask whether a crime amounts to murder or there are extenuating circumstances i.e. did the torturer have a mens rea to do the torture, or were his aims, as the recently released torture memos by Bybee and Bradbury mean to suggest, to do everything "to the limit of the law” to get information? In the latter case, the crime would be lessened, although still a crime. To decide the latter question may be beyond most reporting (though it is pretty easy to report that Bybee's and Bradbury's memos are after the fact apologies and incompetent as regards the law). To address the factual question of whether a crime has been committed, is, however, exactly what decent reporting does, exactly what Shepherd and NPR conceal.
Beyond this, laws against torture, fought for by the United States, are not a secondary feature of international law. They are the cardinal point, the paradigm examples of law, agreed on by civilized nations. For this reason, Manfred Nowak, the UN special rapporteur on torture and the leading international lawyer in Germany, called for prosecution of President Bush and others, the day Obama was inaugurated. It is why proceedings have been launched in Spanish courts, and why the Brown government in England, despite grave reluctance, has launched an investigation into the role of British and MI6 officials in the torture of British resident Binyam Mohammed (his secret, extraordinary rendition to Morocco in 2002 where cuts were made all over his body, including his penis, and acid poured into them). The CIA oversaw this torture and then took him to Guantanamo where after 6 years of indefinite detention and in all likelihood, further torture, he has this year been released. MI6 knew about the torture. Its testimony, kept secret at the Obama administration’s behest and the pressure of Foreign Secretary David Miliband, nonetheless, led the High Court to rule for Mohammed and to say that it could not imagine the reason why an administration in a democracy, which honored the rule of law, would want such information kept secret. Britain keeps to the rule of law, even the administration of Gordon Brown. Will the United States?
The Bush administration and even the Obama administration which has stopped the torture and rightly named waterboarding torture, but still strives to allow politics to go on as if no crimes have been committed, has shaped mainstream reporting. As Paul Krugman once said about New York Times’ reporting at a conference on journalism: "Bush says the earth is flat, scientists say it is round. It's a matter of controversy." This is reporting, he rightly continued, as if there is no fact of the matter or embodies, one might say, an "Emperor's New Clothes" style of journalism. Legally and morally speaking, the argument about torture is just the same: the law specifies what torture is and the US has tortured prisoners, but the former emperor Bush says "we do not torture" and therefore the issue is supposedly "controversial."
Another way of stating the issue: the Bush administration was an attack on the central feature of Anglo-Saxon and Anglo-American law: habeas corpus. Habeas corpus (in the Magna Carta, 1218) requires that the doors of a court shall be open to any prisoner, and that no prisoner shall be tortured. One might say that this practice enters into the stereotype of law, of what a system of law is as opposed to tyranny (see also Jeremy Waldron’s long essay on "Torture and Positive Law"). In contrast, the Bush administration created situations internationally and domestically in which it could lock up prisoners and torture them secretly and without any judicial or international oversight. It defied international law (and multilateralism more generally). It needed to do so because its actions were criminal.
The Obama administration has stopped torture. It is working to close Guantanamo, but Congress has become a roadblock Democrats as well as Republicans have run away from restoring the rule of law by asserting loudly that suspected “terrorists” – even many of these people are very likely innocent of any crime, but have tortured for many years, so they have perhaps become enemies of the United States; even so, most of those who have been tortured will have a hard time surviving outside of jail, let alone striking out – are somehow more dangerous and clever than any person now in a maximum security prison in the United States. Congressmen are irrationally distrustful of the American people - or fearful of what an opponent will say in the 2010 elections - and seek to block any prisoners coming near them. The dishonor of Congress has made it harder for Obama to close Guantanamo, harder to arrange for other countries to take prisoners. Since the prisoners have been tortured, Obama can also not easily bring them to trial (Attorney General Holder cannot expect to win such prosecutions as long as serious courts and jurists still exist in the United States). So Obama is considering or experimenting with indefinite detention – another tyrannical procedure – or attempting to throw away tortured but still suspect prisoners at Bagram.
In using preventive detention or moving the tortured beyond (fairly) swift legal proceedings, Obama runs the serious risk of making the extralegal or tyrannical treatment of prisoners by American administrations even worse by consolidating a new, bipartisan, extralegal regime. Conservatives like Andrew Sullivan and Scott Horton have relentlessly criticized Bush policies. But the Republican party has become an increasingly authoritarian, imperial party. Bush and Cheney stood for “executive power,” defying Congress and the Courts. Democrats often joined the criticisms of executive power though less strikingly (many voted for the Military Commissions Act of 2006, and even Obama voted to let off American firms retroactively for illegal spying on Americans). In the abstract, Obama has commendably refused to affirm the tyrannical doctrine of "executive" or "commander in chief" power.
But Obama was recently going to release more photographs of torture. No leading Democrats asked him to withhold them. But then in response to military-CIA-Cheneyesque-neoconservative pressure, he withheld them. Suddenly, Democrats went silent about the torture regime or spoke out for Obama's new decision. In effect, Obama has united fair-weather opponents of torture or proponents of the rule of law – many Democratic politicians – with the Republicans. Obama is thus on the way to legitimizing a new, anti-habeas corpus, at the least permissive of torturers regime. This is the opposite of what Obama wanted to do (hopefully still wants to do), but preventing legal investigations, given overwhelming evidence and an international outcry, tends sharply in this direction. Thus, Obama whose election is a creative and decent watershed in many respects (see here on his speech in Cairo, for example, and his efforts to stop new, illegal and counterproductive Israeli settlements in Palestine) is now working to enshrine the following new bipartisan conception in foreign policy: International and American law, this administration maintains, do not apply to torture ordered by American officials. Secret, preventive detention is not illegal if done by American officials. No independent or bipartisan hearings to gather the evidence may occur, let alone subsequent prosecutions depending on what is found. This is not because the legal or moral case is unclear. Quite the contrary, unless Obama and the Democrats can block it, any investigation, even one confined to what is now known, makes the case for the prosecution all too clear.
No one in the Bush administration, the Obama administration, NPR especially Alicia Shepherd or the New York Times misunderstands the core issue: the purpose of the torture memos and the whole arbitrary, illegal and immoral redefinition of torture as “enhanced interrogation” is meant to provide a legal cover for American criminal conduct. Cheney sought to redefine the law, and sadly, NPR and the Times cover for him. Worse yet, Obama wants to stop the torture, but wants American officials, regardless of the crimes, to have no arrests or hearings, to go free. He is acting to make American and international law against torture meaningless.
On the editorial page, the Times does recognize sometimes that there are international laws (it does not speak of domestic ones) against torture. The editors are glad rightly that Obama has moved away from torture. But the great issue is whether the rule of law can be restored if there are no investigations of torture and no criminal proceedings against any of those responsible.
A related issue: over a hundred individuals died in American prisons, mostly by homicide, as attested in Pentagon reports (Greenwald has a column on this earlier this week, with a link to British reporter Andy Worthington's even more detailed work on this matter). So the issue is not only torture but the widespread (again according to Pentagon documents) murder of prisoners in American custody.
What is decent – what is law – in international and American law are in the balance here. It is important, as many listeners to NPR have, for all of us to stand up for it.
This post adds to and complements an earlier one What the torturer knew here.
Update: in today's New York Times, Friday, July 3, 2009, p. A12. Mark Mazzetti has an article on "Grand Jury Hears from Top C.I.A. Officers on Destruction of Tapes." The CIA, he says in the first paragraph destroyed "92 videotapes depicting the brutal interrogations of two Al-Qaida detainees."
On p. A19, Benjamin Weiser and Scott Shane write "U.S. Says It Will Preserve C.I.A. Secret Jails for Terrorism Case." The first paragraph begins: "The government will agree to preserve the secret overseas sites where a defendant in a terror case was once held, and, his lawyers says, subjected to harsh interrogation techniques after his capture in 2004.."