Monday, September 13, 2010

Andrew Sullivan's Rebellion: drawing the line on torture

There has long been what the British High Court rightly named an absolute ban on torture. To take a human being into government custody, and extort information by force or, in the course of trying to do so, murdering that person is thought, roughly since the Magna Carta in 1215, to be the sign of tyranny. A system of law requires proof against a free man or woman who has the right to bring argument and evidence on her behalf in open court. Not instruments of torment in the dark, but in a civilized country, debate over evidence in the light of day decides innocence or guilt.* One might say, along with the barring of slavery (and other forms of treatment of groups of people as less than fully human) and upholding freedom of conscience, the outlawing of torture is what defines decent modern politics – liberal, radical and conservative – and civilization,

Now under the formal rule of law, the government still has an horrendous advantage over the poor (and a large advantage over any individual citizen). It can bring vastly uneven resources into prosecuting. Thus, 49% of the prisoners on death row in the United States are black (hardly a sign of equal treatment under the law; with DNA testing in the 1990s, it was discovered that at least 4.5 out of 10 people being executed in the United States were innocent). Still compared to torture, this regime has been admirably different.

Last week, the Ninth U.S. Circuit Court of Appeals in San Francisco in a 6-5 ruling refused to let Binyam Mohammed, a British citizen, bring a case against his kidnapping and torture by the United States because of putative “state secrets.” The case was brought by the Obama administration. Mohammed is of Pakistani origin, and wanted to fight in Kashmir - the K in the original Pakistan- against fierce Indian oppression. He was picked up by the United States and flown to Egypt by Jeppeson airlines (the name on a placard in front of Denver airport, an owner of the Boston Red Sox, and, as Jeppeson Dataplan of San Jose, one of the key targets of the suit). There interrogators cut on his penis and poured acid in the wounds. He was then transported perhaps by Jeppeson to Guantanamo for several more years, transferred to Britain after popular protest, and released in three hours. If one wants to understand the value of evidence, habeas corpus, open court, and the rule of law, staring at what happened to Binyam Mohammed in American “custody” will probably be persuasive. See here and here.

The state secrets doctrine deserves to be known with the Star Chambers as but another name of tyranny. The foolish “judges” even threw out public evidence that could be used against the government. Much of what happened to Mohammed is by now a matter of public record. Suing the government did not require access to classified information or “secrets.” Yet Attorney General Eric Holder, acting for President Obama, demanded that the evidence be thrown out on of court on the basis that somehow “secrets” would be affected, and a majority of “judges” agreed. To protect torturers, these judges try to make public evidence “secret.” “Law” can make itself blind, I guess, to the facts that make justice possible.

Obama, a constitutional lawyer, a man with little penchant himself for executive tyranny, a man who has – so far as we know – scaled back torture and who campaigned against it, now protects the leading torturers of the Bush era. These include all the "principals" of the Bush administration, except possibly Colin Powell (who did commit, if somewhat reluctantly, the crime of aggression). When I sometimes say Cheney bent the stick far to the right and it has locked in – that is, Obama faces very strong obstacles in bending it back – this is the center of what I mean (h/t Michael Schwartz). Andrew Sullivan below rightly brings up the apparatus of torture and “intelligence” – a soaring growth industry within an increasingly privatized US “government” (a government only for the highest bidders is of course not a government) – as a further reason that Obama has, against expectation, made himself the accomplice of crimes. This is a powerful apparatus, one that dominates the corporate media and transforms writing in English with regard to the tortures conducted by other states in the so-called reporting pages of the New York Times into the gibberish of “harsh interrogations” when the American government commits such crimes

Why did Obama collapse, intellectually and in terms of courage, on this fundamental issue? Perhaps one might suggest because there are so many elite criminals, and because this apparatus – backed by the wider war complex – might have waged a political war to discredit him. That is a standard though weak apology for much of Obama’s political cutting and shifting. For they attack him viciously even when he proceeds with great caution. In this unusual case, however, such an apology will not do. What Sullivan’s anger here shows – he is in many respects still a determined supporter of Obama, but recoils at what he rightly names Obama's “cold-bloodedness,” his “objective disdain for the tortured” - is that the stakes are very high. Every torturer in the world – to whom Bush sent many dark skinned prisoners picked up off the street - can now point to the United States as a leading torturer and in fact, a more brazen one than they. Rather than in the dark as with the CIA overseeing such tortures during the Cold War in other countries, though this was horrible enough, the US government does this now in the daylight and increasingly with “legal” sanction. I use quotes around the word legal because this is an all-out attack on the rule of law, But, of course, decisions by an American court, are, positively speaking, legal. As Jack Balkin, the Yale constitutional lawyer rightly says, it is Obama's criminal bipartisanship which confirms a new legal or, in this case, anti-legal regime.

In Europe, 23 CIA kidnappers for torture were recently convicted in absentia, in an Italian court. Former Secretary of State Condi Rice cannot go abroad for fear of arrest. There is still the hope of a Supreme Court review of this decision though the rule of law hangs there by at most a 5-4 thread. Even under Barack Obama, however, the weight of the United States government is decisively against decency, law and the rule of law.

Andrew says: “The institution of torture as a legitimate government tool was a deeper attack on the America idea than 9/11.” This is a startling way of putting it but profoundly true. In his cave on dialysis, Osama Bin Laden dreamed of bringing America down. He perhaps imagined the Iraq war for oil and bases in the Middle East. Counting on the foolishness of Bush and Cheney, he was unexpectedly rewarded, by Cheney’s madness and zeal for torture, many times over. Andrew began writing about what Barack Obama might mean in blunting attacks on the United States a year and a half before the 2008 election. He thought many who might have reason to hate American oppression might take another look at an American policy run startlingly by a very intelligent and sometimes eloquent black man with an African name. Coming from Britain, Andrew takes American rights seriously, and sees them as true principles – in the abstract – of decency. It is the betrayal of shining principle by Obama as well as Bush which Andrew’s words capture.

Andrew rightly distinguishes the rule of princes, with a painting of Machiavelli, from that of law. He here isolates what he calls in a later comment the “Straussian worship of the dictator concealed within democracy.” I have long stressed the role of political Straussians (the many who have gone into reactionary politics, the life-blood of the neocons) in giving authoritarian words and justifications to Cheney to move the regime toward tyranny. See "Leo Strauss and the principles of the right," Constellations, March 2009 here. Obama is no fan of executive power. Yet by protecting the torturers, he has codified the executive power to torture, made it extremely likely that America will continue to torture with the next Republican/authoritarian and nihilist administration (today’s Republican party eschews the rule of law, is for multiple and unending wars of conquest, backs unlimited spending by the military, tax cuts for the rich and impoverishment even of the failing middle…).

Andrew’s teacher at Harvard, whom he now fundamentally disagrees with, was Harvey Mansfield. Harvey and I were also friendly and corresponded and saw each other for a number of years after I left Harvard. Harvey carefully defends Strauss’s sayings to the jot. In the Wall Street Journal Opinion Page, Harvey breezily celebrated Bush’s “princely” power to spy on Americans and torture.** He spoke of such power rightly as tyranny. In the Weekly Standard, he adverted, in a bit of juvenalia, to the movie Ghostbusters: "National Security and the President in an emergency, who ya gonna call?" here. See also Glenn Greenwald's rejoinders here and here.

In fact, Harvey’s favorite author is Machiavelli, defending princely murderousness – he gets this from Strauss as well; Harvey also sees this in the ancients. Thus, he praises Aristotle on the rule of “the outstanding man” – the philosophical tyrant, perhaps Alexander the Great - in book 3 of the Politics. For contrast, see my recent posts on Plato and going down, here, here, and here. Obama’s defense of “state secrets” and the 9th Circuit Court of Appeals decision are the upshot, after 50 years, of Strauss’s importing into the United States Carl Schmitt’s notion of sovereignty: “he is sovereign who makes the decision in the state of the exception” (the opening sentence of Political Theology). Yes, there are American sources in Lincoln’s suspension of habeas corpus in the Civil War or FDR’s concentration camps for Japanese Americans in World War II. Yes, Churchill during World War II is a source. But they all sought the restoration of Congress or Parliament in peace. The distinctive feature of Schmitt (and Strauss then and very likely afterwards) is that they hated American constitutionalism, opposed any restrictions on one-man rule.** Now Strauss's idea could not have shaped American practice without the prerequisites of a war complex and the dangers, in potential revolt, of destroying the American middle class. But in the dialectic of class war and a political war of ideas, words matter.

For Schmitt (and Strauss's remarks on Schmitt's The Concept of the Political), politics sets friend against enemy. There is no common good even among friends. For great enemies, there is annihilation. Harvey substitutes an American informality for Schmitt's lofty Germanic rhetoric, but the point - here in the opening paragraph of his Weekly Standard analogy to Ghostbusters - is the same:

"EMERGENCY POWER FOR SUCH UNDERHANDED activities as spying makes Americans uncomfortable and upset. Even those who do not suffer from squeamish distaste for self-defense, and do not mind getting tough when necessary, feel uneasy. A republic like ours is always more at ease in dealing with criminals than with enemies. Criminals violate the law, and the law can be vindicated with police, prosecutors, juries, and judges who stay within the law: At least for the most part, the law vindicates itself. Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force."

"This home truth gets little recognition from critics of the Bush administration's surveillance activities in the war on terror."

Read torture for surveillance or substitute Obama's order to murder an American citizen, Imam Awlaki, not on the field of battle and without legal proceeding (the ACLU has just initiated a suit about this case), and the point is the same. It is stunning how much is at stake in these seemingly abstract or historical debates about political philosophy. The Wall Street Journal facilitated – and meant to facilitate war crimes. Harvey’s words are not themselves criminal – though they are criminal in intent and a causal factor in the crimes carried out on the bodies of Binyam Mohammed and many others.

In the darkness of Cheney, I campaigned for Obama and came quickly to like him (see Dreams from my Father). I was a friend as well as teacher of Rice, and, once upon a time, thought well of Mansfield. I have a great desire for the policies to change and would go far to block them, but little to see the criminals go to jail. This is the great insight of Gandhi and King. One must seek to change oppression though mass nonviolent noncooperation, but one need not kill oppressors. One should expect to coerce change (boycotts for example can have that effect; massive sit-ins even more so). A change of view in this elite and something like the South African Truth and Reconciliation Commissions are the only way to guarantee that a society can go forward decently after committing such horrors. But Obama has made himself complicit in torture. No such hope looms on the American horizon…

I still run across students – though many fewer than once upon a time – who believe in the abstract that the torturer’s opinions have as much moral weight, metaethically speaking, as the rejection of torture. They have a passion for metaethical argument - nothing is wrong - that will withstand, though perhaps not for very long, looking at torture and thinking about what it means that American law has been so corrupted.

Invoking the paradigm of slavery, I wrote Democratic Individuality (Cambridge, 1990), to defend a limited moral objectivity or moral realism – torture, murder and slavery are all bad for human beings and would not, for instance, be tolerated, as institutions or practices by any inclusive and free citizens deliberating on a constitution – and criticize all the versions of this dominant in America but foolish relativism. Any coherent moral view insists on these judgments. For the reasons against torture are specific, clear and legion, roughly in the end everything one could say in defense of modern civilization and against, as Andrew Sullivan rightly puts it below, the bloody rule of princes. Among such things, consider the words of the Magna Carta and the Habeas Corpus Act below.* The law against torture – and that sustaining freedom of conscience – are shining principles of civilization. The denial of the first, Andrew says, has forced him to become a radical (I might say, has forced me to become a conservative) and we should all do at least what he recommends.

“This knowledge tells me one thing. If we are to recover as a nation under law rather [than] under a prince, it will not be through the channels of the two major parties or through any president acceptable to the mainstream of either party. It will require a citizenry so enraged and protective of its core liberties against this security Leviathan that it compels dismantling this machinery and exposing it to the light of day - not recklessly, not abruptly, but by close examination, judicial review, press inquiry, protest. There are legitimate trade-offs between national security and liberty. But the protection of war criminals where no secrets are at stake except the scandal of torture itself is not one of them. Alas, there are few such citizens around.”

This is just to say that certain principles, with regard to a decent life for humans, are not ideological. It is easy to give reasons for them because they are true (technically, inferences to the best explanation about a decent or a good life for humans). And when they are violated in this way, everyone needs to become a radical.

The Untamed Prince
Andrew Sullivan
09 Sep 2010 12:11 pm

Marc Ambinder reports on the dictatorial powers held by many in government and upheld yesterday by a judiciary that gives unaccountable power - even the power to torture and kill - a drop-shadow, not a check. Marc has been following this state secrets issue for a long time, sensing, before some others did, that it was the key to Obama's protection of Bush's torturers and his objective disdain for the tortured.

Greenwald - another early skeptic - notes that this is not news, however shocking it appears. In 2008, many of us supported Obama in part because he seemed to be a rare candidate who understood the awful potential of government-sanctioned torture to harm us in the war against Jihadism, to eviscerate core American values, and to empower the executive to new and unassailable heights in ways the Founders would have been horrified by. I always knew that Clinton would have little trouble with executive power's reach, and her speech yesterday about the importance and value of American power to direct the planet reveals her comfort with the vast, unwieldy, unaccountable, incredibly expensive apparatus that now pledges to protect us from all evil and solve every global problem - but gives us no way to know how or where or when it invokes secrecy with this kind of glib facility. Fareed [Zakaria] is right about this. Imaginationland lives.

And Obama? I see no daylight between him and Clinton any more on this. As Glenn notes, Obama as executive quickly co-opted the kind of blanket secrecy and protection of the national security apparatus from the rule of law that plagued us in the Bush-Cheney administration. Yes, torture ended. That matters a huge amount. He will always deserve credit for that. Of course, I have to trust him on this, since there is precious little way for someone outside the government to test this or know this for sure.

But Obama's insistence on protecting every Bush era war criminal and every Bush era war crime from any redress or even scrutiny is a sign both of how cold-blooded he can be, but more, I think, of how powerful the security state now is, how it can protect itself, how it exists independently of any real accountability to anyone, how even the metrics of judging it are beyond the citizen's reach or understanding.

I tried valiantly not to believe this of Holder and Obama for months; I tried to see their legitimate concerns about exposing a war machine when it is still at war; I understand the need for some extraordinary renditions; and the necessity for executive power in emergencies to act swiftly, as the Founders intended. Yes war requires some secrecy. But Obama has gone much further than this now. The cloak of secrecy he is invoking is not protecting national security but protecting war crimes. And this is now inescapably his cloak. He is therefore a clear and knowing accessory to war crimes, and should at some point face prosecution as well, if the Geneva Conventions mean anything any more. This won't happen in my lifetime, barring a miracle. Because Obama was a test case. If an outsider like him, if a constitutional scholar like him, at a pivotal moment for accountability like the last two years, cannot hold American torturers to account, there is simply no accountability for American torture. When the CIA actually rehires as a contractor someone who held a power-drill against the skull of a prisoner, you know that change from within this system is impossible. The system is too powerful. It protects itself. It makes a mockery of the rule of law. It doesn't only allow torture; it rewards it.

The case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It's definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.

The Bush executive is therefore now a part of the American system of government, a system that increasingly bears no resemblance to the constitutional limits allegedly placed upon it, and with a judiciary so co-opted by the executive it came up with this ruling yesterday. Obama, more than anyone, now bears responsibility for that. We had a chance to draw a line. We had a chance to do the right thing. But Obama has vigorously denied us the chance even for minimal accountability for war crimes that smell to heaven.

And this leviathan moves on, its budget never declining, its reach never lessening, its power now emboldened by the knowledge that this republic will never check it, never inspect it, never hold its miscreants responsible for anything, unless they are wretched scapegoats merely following orders from the unassailable above them.

And this means almost certainly that torture will return. The GOP base loves it, as long as it is done against people with dark skin and funny names in places they can look away from. And they know now something they didn't know in 2008. They will always get away with it. Even a liberal Democrat will protect you for ever with a golden shield that creates two classes of people in this country: one above the law - even a law as profound as that against torture - and those outside the government obliged to obey it.

This knowledge tells me one thing. If we are to recover as a nation under law rather under a prince, it will not be through the channels of the two major parties or through any president acceptable to the mainstream of either party. It will require a citizenry so enraged and protective of its core liberties against this security Leviathan that it compels dismantling this machinery and exposing it to the light of day - not recklessly, not abruptly, but by close examination, judicial review, press inquiry, protest. There are legitimate trade-offs between national security and liberty. But the protection of war criminals where no secrets are at stake except the scandal of torture itself is not one of them. Alas, there are few such citizens around. And, most tragic of all, those who say they care about liberty above all - the tea-partiers who invoke the founders - seem only too willing to surrender every liberty for the prize of a security against a threat we cannot even measure, and to bow down before a new king (and probably warrior-queen) rather than elect a new president.

Have I been radicalized by this? You betcha. Because this is so plainly not a nation under the rule of law anymore. And there are very few political issues more important than that.

The Untamed Prince, Ctd
10 Sep 2010 01:41 pm

Adam Serwer tries to strike an optimistic note:

"While the Obama administration's embrace of the Imperial Presidency in terms of actual policy has been near total, there are important legal technicalities that leave the whole construction vulnerable. Namely, that the Obama administration has said that these powers stem from Congress, they're not inherent to the executive branch. They come from Congress passing legislation like the Authorization to Use Military Force."

"That seems like a pointless distinction at the moment. But I don't think it will be ultimately. Impunity for lawlessness in matters of national security won't end through popular means, because scaring people is easy and policies that project 'toughness' against a mysterious and frightening ethnic other are politically effective. But eventually the executive branch will do something to infringe on the priorities or prerogatives of one of the other co-equal branches in a manner that provokes a confrontation."

I think that's fair. Panetta is not Addington. The Straussian worship of the dictator concealed within democracy is not part of Obama's mindset. And there is obviously a pragmatic defense of not launching war crime investigations at a time when the administration is already beset with overwhelming problems at home and abroad. Torture, moreover, is no more.

And yet. Aggressively trying to prevent torture victims from having their day in court merely using unclassified evidence is active complicity in the war crimes of the past. And such complicity is itself a war crime. Either we live under the rule of law and the Geneva Conventions, or we don't. And when Obama says we don't - as he unmistakably is - the precedent he is setting all but ensures that torture will come again, that there will never be consequences for it, and that the national security state can cloak itself in such a way that the citizenry has no way of penetrating its power. Bush and Cheney remain the real culprits here; but watching Obama essentially surrendering to their trap is a betrayal of a core rationale for his candidacy.

The institution of torture as a legitimate government tool was a deeper attack on the America idea than 9/11. The legitimation of it by a successor president compounds this in a way that is now, one fears, irreversible. We have tested the rule of law in this country and it has failed.

With great courage and clarity, the Obamaites could have cut this Gordian knot; instead they tightened it. And torturers across the world - far, far worse than Bush or Cheney - are now smiling. See? They will say. They got America to endorse their methods. They even got Obama's America to protect torturers. And so the light of human freedom that once shone from here across the globe and penetrated even the darkest cell of the worst tyranny has been close to snuffed out. Some dissident somewhere in the world now knows that there is no place on earth where this cannot happen. Some victim now understands that even America can do this and will make sure it gets away with it.

How do you put a pragmatic price on that?

The Untamed Prince, Ctd
10 Sep 2010 10:12 am

"You've got state secrets, targeted killings, indefinite detention, renditions, the opposition to extending the right of habeas corpus to prisoners at Bagram [in Afghanistan]. And although it is slightly different, Obama has been as aggressive as President Bush in defending prerogatives about who he has to inform in Congress for executive covert action," - former CIA director Michael Hayden, celebrating Obama's embrace of the unchecked executive power he once promised to restrain. He does not mention a vital difference: Obama's ending of the active torture regime of his predecessor.

Ben Wizner puts it more succinctly:

"It can fairly be said that the Bush administration made torture the law of the land and the Obama administration is making impunity for torture the law of the land."

And the war machine moves on, constrained by no one.

* Articles 38-40 of the Magna Carta read:

"38. No bailiff, on his own simple assertion, shall henceforth any one to his law, without producing faithful witnesses in evidence.

39. No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed--nor will we go upon or send upon him--save by the lawful judgment of his peers or by the law of the land.

40. To none will we sell, to none deny or delay, right or justice."

In “An Act for better secureing the Liberty of the Subject and for prevention of imprisonments beyond the seas,” Charles II in 1679 codified a practice which had existed for at least 3 centuries:

“1. Recital that Delays had been used by Sheriffs in making Returns of Writs of Habeas Corpus, &c.Sheriff, &c. within Three Days after Service of Habeas Corpus, with the Exception of Treason and Felony, as and under the Regulations herein mentioned, to bring up the Body before the Court to which the Writ is returnable; and certify the true Causes of Imprisonment.; Exceptions in respect of Distance.

Whereas great Delayes have beene used by Sheriffes Goalers and other Officers to whose Custody any of the Kings Subjects have beene committed for criminall or supposed criminall Matters in makeing Returnes of Writts of Habeas Corpus to them directed by standingh out an Alias and Pluries Habeas Corpus and sometimes more and by other shifts to avoid their yeilding Obedience to such Writts contrary to their Duty and the knowne Lawes of the Land whereby many of the Kings Subjects have beene and hereafter may be long detained in Prison in such Cases where by Law they are baylable to their great charge and vexation. For the prevention whereof and the more speedy Releife of all persons imprisoned for any such criminall or supposed criminall Matters Bee it enacted by the Kings most Excellent Majestie by and with the Advice and Consent of the Lords Spirituall and Temporall and Commons in this present Parlyament assembled and by the authoritie thereof That whensoever any person or persons shall bring any Habeas Corpus directed unto any Sheriffe or Sheriffes Goaler Minister or other Person Whatsoever for any person in his or their Custody and the said Writt shall be served upon the said Officer or left at the Goale or Prison with any of the Under Officers Underkeepers or Deputy of the said Officers or Keepers that the said Officer or Officers his or their Under Officers Under-Keepers or Deputyes shall within Three dayes after the Service thereof as aforesaid (unlesse the Committment aforesaid were for Treason or Fellony plainely and specially expressed in the Warrant of Committment) [upon Payment or Tender of the Charges of bringing the said Prissoner to be ascertained by the Judge or Court that awarded the same and endorsed upon the said Writt not exceeding Twelve pence per Mile (fn. 1) ] and upon Security given by his owne Bond to pay the Charges of carrying backe the Prisoner if he shall bee remanded by the Court or Judge to which he shall be brought according to the true intent of this present Act and that he will not make any escape by the way make Returne of such Writt [or (fn. 2) ] bring or cause to be brought the Body of the Partie soe committed or restrained unto or before the Lord Chauncellor or Lord Keeper of the Great Seale of England for the time being or the Judges or Barons of the said Court from whence the said Writt shall issue or unto and before such other person [and (fn. 3) ] persons before whome the said Writt is made returnable according to the Command thereof, and shall [likewise then (fn. 4) ] certifie the true causes of his Detainer or Imprisonment unlesse the Committment of the said Partie be in any place beyond the distance of Twenty miles from the place or places where such Court or Person is or shall be residering and if beyond the distance of Twenty miles and not above One hundred miles then within the space of Ten dayes and if beyond the distance of One hundred miles then within the space of Twenty dayes after such ( (fn. 5) ) delivery aforesaid and not longer.”

** Mansfield, "The Case for the Strong Executive: Under Some Circumstances, the Rule of Law Must Yield to the Need for Energy", The Wall Street Journal, May 2, 2007. Mansfield says in this essay that he appreciates the rule of law at times. I fail to see this as more than a feint, a manner of writing, a la Strauss, but would be happy to learn that it is more. But it is, as Sullivan notes, increasingly hard to see the way back short of resistance from below.

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