The New York Times published Sunday a fine editorial “Yes, It was torture and illegal” (below). On the crime of torture and how deceitfully it has been lied about by Presidents and their accomplices, the Times' editorial page, within the American elite, has led the way. I will develop several aspects of the editorial’s comments on Obama’s “executive pliancy” and the Supreme Court positioning itself for the first time as a determined enemy of the rule of law. This is part of a general, now again increasing pattern of corruption of a common good, the emergence of tyranny or a police state here, which I have emphasized (See "How public corruption happens" here and "Corrupt" here).
Obama promised to close Guantanamo. A constitutional lawyer, he said and seemed to mean: “We do not torture.” He himself has eliminated at least some of the practice of torture.
Yet he has increasingly dropped a legal veil over previous practices. Eric Holder has appointed an independent prosecutor supposedly restricted to the rank and file torturers. But as in the government's request to bar four innocent people from any legal remedy against their torturers which the Times condemns, Holder's “Justice” Departments defends the criminals at the heights of the last administration with the spurious claim that the conduct was not “clearly illegal.” Let’s see: a) waterboarding is illegal, as Holder and Obama said; b) Khalid Shaikh Mohammed was waterboarded 183 times by U.S. captors in a month as the torture memos released by Obama underlined; but c) it is suddenly “unclear” the waterboarding was illegal during the Bush administration, so Holder’s Justice Department maintains. A high school student would never pass any test, let alone a big paper, with reasoning as silly as this.
Sadly, the Supreme Court, that august legal forum, has upheld Holder’s position. Never mind that the US is a signatory to the Geneva Conventions and the Convention against Torture. Never mind that Article 6, Section 2 of the Constitution of the United States makes treaties signed and ratified by the United States the highest law of the land. Never mind that the Court acknowledged the rights of the indefinitely detained prisoners in Guantanamo to habeas corpus in Rasul v. Bush. Never mind that there is vast evidence about torture in the public record at least to be investigated. The Supreme Court now cares not a penny for law, or as the editorial rightly says: the rule of law. Haughty and confident, Chief Justice John Roberts knows the law; he could testify before Congress without notes. But the Roberts Court is seeking and has perhaps found a Dred Scott-decision decadence.
The editorial also names the bad faith of Bush and Cheney:
“Moreover, the shield of qualified immunity was not raised in good faith. Officials decided to hold detainees offshore at Guantánamo precisely to try to avoid claims from victims for conduct the officials knew was illegal.”
In addition, the editorial introduces a concept of “executive pliancy.” This useful idea about the war complex needs to be spelled out more fully. The war complex (see IF Stone, Chalmers Johnson and the original position here) feeds off fear. It needs American citizens who don’t stand up, but cower under their beds (it seeks to infantilize the population). A demented wizard of Oz, Mr. Cheney has now come out from behind his bureaucratic curtain of secrecy and snarls his madness, his urging on of torture. He is so bizarre that one might more aptly speak of the pliancy of the rest of the Bush administation and the Congress, to him. But in those years, the Supreme Court by a 6-3 or 5-4 vote still recalled the rule of law.
Once Cheney and Bush established, through their minions Rumsfeld and Rice and Tenet, a system of torture throughout the US government, of allied help in kidnapping (“extraordinarily rendering”) people like the imam Abu Omar kidnapped in Italy by the CIA to be tortured in Egypt (an Italian court has ruled against 23 CIA felons along with 2 Italian secret police – see here), it becomes hard to reverse. If one adds the Bush creation of a semi-competent Injustice Department, firing at least 12 federal attorneys who refused to convict Democrats for electoral purposes and elevating “Christian” Bushies, Mr. Rove and its leaders have much to fear if legal proceedings are ever opened. To reestablish the rule of law, a great number of former high officials would be under threat of criminal investigation (in the administration, perhaps only Colin Powell and the FBI stood out against torture, at least as exemplified by Ali Soufan – see What the torturer knew here). Obama blithers – I use the word deliberately in this case for otherwise so fine a mind and speaker – about looking to the future as do the Democratic enemies of the rule of law because the crimes cut so deep (100 murders in American custody by Pentagon figures, in addition to torture) and involve so many. Obama could create a kind of Truth and Reconciliations commission, prosecuting only the unrepentant – and even Cheney could be given a limited sentence on the basis of being really crazy (I will leave to psychologists a name for his condition). But here electoral convenience trumps basic principle (the rule of law). In contrast, in a decent regime, Ronald Dworkin speaks aptly of “rights as trumps.” America has a decent leader who has spoken to the electorate and the world about justice. Yet with this decision, America under Obama is now the opposite of a decent regime. The notion of a plaint executive who sacrifices so core a matter as the rule of law to political convenience, one who strengthens, even while initially trying to abate it, a tyrannical executive or commander-in-chief power, becomes clearer.
Even worse is the environment created by the reactionary two step, the fact that Republicans, who are now authoritarians and torturers rather than conservatives (Arlen Spector, once a lawyer, seems still in favor of the rule of law, but he is now a Democrat), blare on and on backed by a compliant corporate-owned media. Those who speak for law and international law, conservatives like Scott Horton and Andrew Sullivan, blog for Harpers and the Atlantic respectively; both are widely influential but on the margins of the mainstream. Bruce Fein, the former Reagan official and other conservatives, have little or no media platform. It is thus particularly important that the New York Times editorial page stands for the rule of law. The editors, led by Adam Cohen, are unfortunately lonely voices in the commercial media.
The prospects for restoring America are weak. The Democrats led by Obama and Holder became the bipartisan confirmers of a regime of torture in Jack Balkin’s apt and in this case, tragic concept. He has referred to the new American “legal” regime as a National Surveillance State. But the right words for this regime are also now a medieval or pre-Magna Carta torture state, except if we are spared by a rare, would-be decent administration which the pliant Obama’s still is (Obama has eliminated at least much of the torture, even though he has swung wide the door to its restoration). One might also name it, if one reads the Times’ misguided reporting pages about “harsh interrogation” or “brutal interrogations,” a regime reminiscent of (important aspects of) the Gestapo. Thus, as Andrew Sullivan and Scott Horton have pointed out, Nazis coined the phrase harsh interrogations, a literal translation of vershaerfte Vernehmung – see here (America is not, however, a genocidal state). But the Times speaks of how the international community - I mean the opinion of ordinary people - looks at us. In November, 2008, the once racist and genocidal (slavery, segregationist) American regime miraculously, through a movement from below, elected an intelligent, eloquent and decent black leader. America was briefly forgiven torture. For Obama stopped the torture and revived negotiation. But this continuing turn away from the rule of law, linked to ever new American wars, is eroding, in the world and here, that promise.
The problem for Obama is both the number of prosecutions and the war complex especially Republican authoritarians magnified by the corporate media. The complex forces war on Obama who caters to it about escalating in Afghanistan but also, conceiving himself to be lethal ("I’m skinny but I'm tough"), is striking out with drones in Pakistan and Yemen. That complex, especially the media and think-tank experts abetted by the Democrats, immunizes or re-legitimizes the Bush and Cheney torture regime as part of the need to cultivate fear. It is still a major strength of Obama that he does not rely on fear. But at worst, Palin or the plastic Romney and the neocons (William Kristol) will come in to torture again – proving the accuracy of Arendt’s phrase about the banality of (much) evil. Cheney is perhaps a more fearsome case. But to prevent cases against high officials like Rumsfeld, the notion that settled and decent law was "indefinite" just a moment ago now appears, as the Times says, to be the stance of the Supreme “Court” as well as the Obama administration.
The CIA tortured in the dark throughout the Cold War. But it was done by shadowy proxies and agents, officially illegal. Through Guantanamo, Bagram and extraordinary rendition, a new regime has spread this darkness over American law. America is now no longer a system of law as still exists even in England, but a system of torture, of lawlessness, given approval by Republicans in this central case posing as judges and singing a chorus of look to the future, look to the future, with the rest of the powerful. As Jack Balkin says a pseudo-legal regime of torture has emerged (yes, we tortured, but there are no legal consequences, even hearings). Good for the editorial page of the Times and anyone else who stands up for the rule of law.**
Yes, It Was Torture, and Illegal
Published: January 3, 2010
Bush administration officials came up with all kinds of ridiculously offensive rationalizations for torturing prisoners. It’s not torture if you don’t mean it to be. It’s not torture if you don’t nearly kill the victim. It’s not torture if the president says it’s not torture.
It was deeply distressing to watch the United States Court of Appeals for the District of Columbia Circuit sink to that standard in April when it dismissed a civil case brought by four former Guantánamo detainees never charged with any offense. The court said former Secretary of Defense Donald Rumsfeld and the senior military officers charged in the complaint could not be held responsible for violating the plaintiffs’ rights because at the time of their detention, between 2002 and 2004, it was not “clearly established” that torture was illegal.
The Supreme Court could have corrected that outlandish reading of the Constitution, legal precedent, and domestic and international statutes and treaties. Instead, last month, the justices abdicated their legal and moral duty and declined to review the case.
A denial of certiorari is not a ruling on the merits. But the justices surely understood that their failure to accept the case would further undermine the rule of law.
In effect, the Supreme Court has granted the government immunity for subjecting people in its custody to terrible mistreatment. It has deprived victims of a remedy and Americans of government accountability, while further damaging the country’s standing in the world.
Contrary to the view of the lower appellate court, it was crystal clear that torture inflicted anywhere is illegal long before the Supreme Court’s 2008 ruling that prisoners at Guantánamo, de facto United States territory, have a constitutional right to habeas corpus. Moreover, the shield of qualified immunity was not raised in good faith. Officials decided to hold detainees offshore at Guantánamo precisely to try to avoid claims from victims for conduct the officials knew was illegal.
Reversing the Circuit Court would not have ended the matter. The plaintiffs would still have had to prove their case at trial. They deserved that chance. There are those who oppose trying to punish Bush-era lawlessness — some who argue that America should not look backward and some who excuse that lawlessness. But the rule of law rests on scrutinizing evidence of past behavior to establish accountability, confer justice and deter bad behavior in the future.
President Obama, much to his credit, has forsworn the use of torture, but politics and policy makers change and democracy cannot rely merely on the good will of one president and his aides. Such good will did not exist in the last administration. And the inhumane and illegal treatment of detainees could make a return in a future administration unless the Supreme Court sends a firm message that ordering torture is a grievous violation of fundamental rights.
Anyone who doubts the degree of executive branch pliability in this realm needs to consider this: The party that urged the Supreme Court not to grant the victims’ appeal because the illegality of torture was not “clearly established” was the Obama Justice Department.
*The now characterless McCain who led the 91-9 Senate vote against torture but knew that Bush had issued a ‘signing statement’ and wanted to be President more than to be decent is another example of such pliancy.
**The Times has also, sadly, for 60 years refused to mention the crime of aggression when committed by the United States. See Richard Falk and Howard Friel, The Record of the Paper. During the run-up to the Iraq war, it propagandized for aggression and refused to print critics of the war. The Times bizarrely even misreported the anti-war movement, depicting the demonstration in Washington of 500,000 on January 15, 2003 (the 1963 march to which Martin Luther King gave his "I have a dream" speech two-thirds filled the mall; January 15 filled the mall, and buses were still coming in…) as a march of 10,000. The reporter had left at 10 am; the rally started at noon. A flood of letters required the Times and its echo National Public Radio to correct the story the following Wednesday, reporting then on p. A10 a crowd of 100,000.
But one should especially honor decency in the paper of record. What is decent in America hangs by a thread.