History Repeats the Old Conceits

by Eric Martin

Andrew Sullivan has an interesting series of posts on the wider implications of the bi-partisan Senate report which found that the Bush administration - including the President himself - authorized the use of torture on detainees in Guantanamo, Iraq and numerous other locations (as discussed by publius last week).  In fact, a direct link is established between Bush's authorization of torture techniques and the particular methods used at Abu Ghraib - those would be the methods that so horrified the world when photographs recounting the torture surfaced.  The report concludes:

The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at [Guantanamo]. Secretary of Defense Donald Rumsfeld's December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.

Dan Froomkin contrasts the sordid reality of Bush administration officials authorizing torture, with Bush's dubious claims of moral outrage when confronted with the fruits of his regime:

Bush, on May 24, 2004, described what happened at Abu Ghraib as "disgraceful conduct by a few American troops who dishonored our country and disregarded our values."

On June 1, 2004, he told a reporter: "Obviously, it was a shameful moment when we saw on our TV screens that soldiers took it upon themselves to humiliate Iraqi prisoners -- because it doesn't reflect the nature of the American people, or the nature of the men and women in our uniform. And what the world will see is that we will handle this matter in a very transparent way, that there will be rule of law -- which is an important part of any democracy. And there will be transparency, which is a second important part of a democracy. And people who have done wrong will be held to account for the world to see.

"That will stand -- this process will stand in stark contrast to what would happen under a tyrant. You would never know about the abuses in the first place. And if you did know about the abuses, you certainly wouldn't see any process to correct them."

Sullivan goes further, though, and highlights some of the fervent indignation claimed by leading conservative voices.  Glenn Reynolds:

Of course, it's not the same as Saddam's torture -- which was a matter of top-down policy, not the result of a**holes who deserve jail or execution, and will probably get one or both. As with other reported misbehavior, it should be dealt with very, very harshly. But those who would -- as Senator Kerry did after Vietnam -- make such behavior emblematic of our effort, instead of recognizing it as an abandonment of our principles -- are mere opportunists.

Even better, look at some of the commentary from the links that Reynolds compiled at the time.  One commenter likened these actions to "treason."  Vodkapundit had this to say:

What's the difference between what this small group US guys did in Iraq and what Saddam (and every other Arab state) has been doing for years?

In our case, the people who did this will spend most, if not the rest of their lives in Kansas making small rocks out of big rocks.

In every other case, they'd be promoted.

End of comparison.

Not quite. 

Sullivan also catches Jonah Goldberg in a hand wringing pose worthy of the ages:

Even if all of these pictures were staged this would be an outrage. The fact that they are real makes this staggeringly awful. The awfulness is twofold. First, there's the illegal, morally corrupt -- and corrupting -- evil of torturing people for the pleasure of it (and taking pictures of it!). Second, there's the counter-productive stupidity of it. Even if these guys were the worst henchmen of Saddam's torture chambers, the damage this does to the image of America is huge. How do we look when we denounce Saddam's torture chambers now? How many more American soldiers will be shot because of the ill will and outrage this generates? How do we claim to be champions of the rule of law?

Well, there is one way. This needs to be investigated and prosecuted. If there's more to the story -- whatever that could conceivably be -- let's find out. But if the story is as it appears, there has to be accountability, punishment and disclosure. Indeed, even if this turned out to be a prank, too much damage has already been done and someone needs to be punished.

Under Saddam torturers were rewarded and promoted. In America they must be held to account.

Unsurprisingly, none of these commentators are calling for "accountability, punishment and disclosure" now that the Bush administration's role in implementing this program has been revealed.  Muted amongst the black and white, good vs. evil bastions of moral clarity are the charges of "treason."  No, instead, we are treated to apologias for torture and tut-tutting about quixotic sentimentalities that interfere with the prudent employ of toture on any manner of detainee.  Where the GOP is concerned, when it comes to torture, gray is the new black and white.

Since I ommitted it, allow me to add the degradation of torture to the list of reasons for the anger felt by the shoe thrower, Muntazer al-Zaidi, and his fellow ungrateful Iraqis.  Allow me also to state unequivocally and without reserve that if President Obama does not entirely repeal the policy authorizing the use of torture, and the use of rendition to achieve the same repugnant ends, then he deserves to be described the same way that Bush, Cheney and Rumsfeld are rightly labeled: war criminal. 

For me, at least, partisanship and support for a political party or politician will not trump the moral implications of torture.  My outrage is not so contingent or fickle. 

Comments

[Hogan]

Yes, that was rather my point. Obama is going to be blamed whatever he does.

But not by the same number of people in every single case. Is the counterpoint.

But the root of the military's dislike of Clinton is pretty simple - he downsized the military.

I'd say the root of it was his evading the draft during the Vietnam war. The rest was gravy.

[Eric Martin]

Yeah, I do, actually. But some things are just absolutely wrong, and torture is one of them.

Wow jes. Take a bow. Because the whole point of this post was that torture is OK if Obama says so, and that it really is a gray area. (um, since you've exhibited such bad faith in this conversation, I must point out that this was sarcasm and that the point of this post was the exact opposite).

But am unsurprised to find that Americans consider it more important to lift Americans living in poverty up a bit, than to prevent non-Americans from being tortured.

No. Again, you argue in extreme bad faith.

Honestly, I feel like I'm arguing with a neocon. Rank sophistry.

As this post makes explicitly clear, it is vital to stop torture. There is no compromise there. As this post states explicityly, if Obama doesn't stop torture, then I will call him a war criminal.

My argument - which you, again, distorted - is that it might be more important to free up Pentagon funds for other vital social services than it is to prosecute Bush administration officials over torture. But you can stop torture without prosecuting Bush administration officials.

If you disagree with me about the relative importance of prosecutions vs. more money for social programns, fine. There is room for good faith disagreement there, and I don't claim to have insight into the ultimate moral calculus.

But what is not OK is you twisting my argument.

Please stop.

[Jesurgislac]

As this post makes explicitly clear, it is vital to stop torture. There is no compromise there.

And I state explicitly: If you are willing for there to be no legal penalty for torturing prisoners, then you are willing to compromise on torture. When for seven years at least torturing prisoners has been the approved policy of the US military, to attempt to reverse this policy while leaving the torturers in charge, is just - flailing.

As this post states explicitly, if Obama doesn't stop torture, then I will call him a war criminal.

But you are unwilling to have him stop torture by prosecuting the torturers.

If you disagree with me about the relative importance of [stopping torture] vs. more money for social programns, fine.

You keep trying to amend my "stop torture" to "prosecutions". I can see why you do this - it sounds so much better - but doing so as you complain about my arguing in bad faith is kind of hypocritical.

We can argue if it's possible to stop torture being acceptable while allowing torturers to remain in their positions of responsibility, without any legal penalty for committing crimes.

Since Obama doesn't plan to focus on electoral reform, he's got four years before the next Republican administration gets in. If he leaves the torturers in position, and makes clear he doesn't consider the crimes of the Bush administration to have been anything meriting any legal penalty, there's no reason the next Republican administration can't take up the practice of torture again.

[Eric Martin]

But you are unwilling to have him stop torture by prosecuting the torturers.

Unwilling to have him? Um, I'm perfectly willing to have him prosecute. I'm just explaining the rationale for not prioritizing prosecution.

You keep trying to amend my "stop torture" to "prosecutions". I can see why you do this - it sounds so much better - but doing so as you complain about my arguing in bad faith is kind of hypocritical.

Huh?

What does this mean?

Let's say that over the past 7 years, the US has tortured 5,000 people.

Let's say that upon taking office, Obama orders the cessation of all torture, and from that day forward, the US tortures 0 people.

It is my position that this would be "stopping" the US from torturing people. It would not be prosecuting people for prior acts of torture, but it would be stopping torture.

In response to a point I made earlier about stopping torture along these lines, you said:

But am unsurprised to find that Americans consider it more important to lift Americans living in poverty up a bit, than to prevent non-Americans from being tortured.

But Obama would be preventing non-Americans (and Americans FWIW) from being tortured!

By stopping torture!

No prosecutions necessary!

Are you really saying that this would not count as stopping the torture of people? That we would only have stopped torturing people when the past perpetrators were prosecuted?

And that we would still be torturing people even though no people would be tortured?

[Sapient]

Tell that to Sapient.

I'm not sure what Jesurgislac is talking about. For the record, I come from a military family, I'm a lawyer, and I fully understand that the duty of a military officer is to obey orders of the commander in chief.

Also, unlike Jesurgislac, I am a politically active citizen and have seen how hard people have had to work to elect Obama. People who elected him did not do so in order that he would spend his political resources identifying and prosecuting Bush administration wrongdoers, much as I might wish for that.

Obama's national agenda, including how he handles the war, military reform, the Great Depression II, global warming, energy independence, civil liberties, education, and the host of other issues, all of these things are part of a balancing act requiring political coalitions and compromise. Ending torture is something I fully agree he must do, and we must stand for unequivocally. Prosecuting elected officials and their appointees, who pursued policies that the electorate tacitly approved by voting Bush into office in the first place, is more problematic and not as urgent.

[Jesurgislac]

Sapient: People who elected him did not do so in order that he would spend his political resources identifying and prosecuting Bush administration wrongdoers

You feel that a majority of those who voted for Obama feel that it's unimportant to have torturers prosecuted? What polling data do you have to support that?

Ending torture is something I fully agree he must do, and we must stand for unequivocally.

And yet, you argue that it's "problematic and not as urgent" to investigate prosecute the people who are responsible for torture.

Especially when you substitute "elected officials and their appointees, who pursued policies" for "torturers" and "the people who are responsible for torture".

Arguing that this is not "equivocating", that you're still "unequivocably" for ending torture, you're just opposed to actually penalizing it's use...

Eric: Are you really saying that this would not count as stopping the torture of people?

No, if you stop torturing people, you stop. As I agreed upthread, though it's tough to bill this as a positive good, for the prisoners of the US after 20th January, if torture really stops then, that will be good.

That we would only have stopped torturing people when the past perpetrators were prosecuted?

I'm saying that I don't believe the past perpetrators will stop torturing people. After all, they're going to remain in post: their involvement with torture will not be investigated: no one will be prosecuted. True, Obama has and will come out with a lot of talk about how the US won't torture anyone. But so did Bush, and Bush didn't mean it either.

Even if Obama intends to only prosecute torturers who commit their crimes after he takes office, this means a perpetrator who tortured prisoners but who got transferred and no longer tortures prisoners, will face no legal penalty: while his successor, doing nothing worse than his predecessor, may do so. Because torture was legal and approved under Bush, so it was OK for "elected officials and their appointees, who pursued policies" to torture prisoners. It only became prosecutable, when Obama took office.

Again, Sapient may say this is an unequivocable condemnation of torture, but it sounds pretty damn equivocable to me.

[Eric Martin]

I'm saying that I don't believe the past perpetrators will stop torturing people. After all, they're going to remain in post: their involvement with torture will not be investigated: no one will be prosecuted. True, Obama has and will come out with a lot of talk about how the US won't torture anyone. But so did Bush, and Bush didn't mean it either.

Bush said that we don't torture, but behind the scenes was authorizing torture through official memos and other legal instruments.

If Obama says he is stopping torture, but is really authorizing torture ala Bush, then I will condemn him quite loudly as a war criminal.

If Obama declares torture to be illegal, then I do not believe people will continue to torture. Recall: the torturers were and are very nervous about their shaky legal ground, and insisted on legal sign off from above in order to give them protection.

But there's no point in carrying on a conversation on the premise that although Obama has said he will stop torture, he really won't - just like Bush.

Obama hasn't even taken office yet, so those are premature judgments based on no empirical evidence.

[Jesurgislac]

If no investigation and prosecution of torture is carried out under Obama, it will have been established definitely that torture by the US military is legal and okay if the sitting President approves torture.

So torture may cease during the period Obama is in office. (I suspect it won't cease, once it is clear that Obama does not intend to prosecute, but you're right that this is speculation.)

But, the principle that torture is a crime will be lost. If the US takes stance on the principle that torture is legal when okay'd by the head of state, so can any other country. And so can the next US President.

And that's all.

[radish]

If Obama declares torture to be illegal, then I do not believe people will continue to torture.

Non-rhetorical question: how would Obama go about declaring that torture is illegal? Meaning what would he do or say exactly, procedurally speaking.

[Sapient]

If no investigation and prosecution of torture is carried out under Obama, it will have been established definitely that torture by the US military is legal and okay if the sitting President approves torture.

Not necessarily true. The statute of limitations on torture would exceed Obama's term. In any case, the justice department wouldn't have to instigate a prosecution immediately.

how would Obama go about declaring that torture is illegal?

Obama doesn't have to declare that torture is illegal. Torture is illegal with or without his declaration. Obama can tell his DoD officials that he won't stand for it, and will investigate information that it's happening, and prosecute anyone who does it. Who he's going to investigate from the past administration is a different issue.

[Eric Martin]

What Sapient said.

That is all.

[radish]

What Sapient said.

You're kidding, right? You said "if X happens then Y will happen." I asked "how will X happen?" Sapient responded "X does not need to happen in order for Y to happen."

On reflection, I'm guessing that what you meant to say was that "if Obama declares that torture will be prosecuted then I do not believe people will continue to torture." But you've also stipulated that what he would really be declaring is that torture will be prosecuted if it happens under his command. Which isn't quite the same thing.

Who he's going to investigate from the past administration is a different issue.

Evidently. What I'm wondering whether there's some other difference besides the political context. Or is that enough by itself?

[Eric Martin]

Radish: I think it comes down to this:

Torture is illegal, and even though Bush declared that it isn't in fact illegal, Bush exceeded his authority in doing so.

Thus, Obama doesn't need to declare torture illegal so much as let his inferiors know that he will not treat its practice with the same inattentiveness/endorsement as Bush.

It might be unsatisfying from a moral perspective, but this could be a "going forward" type of policy.

[Eric Martin]

Adding: He'd also have to command the CIA to cease using the techniques approved by recent legislation.

[Sapient]

To clarify, I agree that Obama should prosecute previous torturers, including political officials who authorized torture. I'm not prepared to decide in advance of his taking office that his retaining Secretary Gates signals a firm unwillingness to prosecute anyone, much less a lax attitude toward torture generally.

[radish]

It might be unsatisfying from a moral perspective, but this could be a "going forward" type of policy.

Morality (and statutes of limitations) aside, "going forward" has been our de facto policy at minimum since the beginning of the Ford administration. What I find slightly unnerving is that you're endorsing that policy without any apparent exceptions. Are there any laws important enough that the parties entrusted with enforcing them may not set them aside for political reasons?

Forget about the moral aspect. Just think of it as an abstract problem in legal theory. What are the circumstances, if any, under which prosecutorial discretion should be formally, rather than informally limited?

[radish]

To clarify ... much less a lax attitude toward torture generally.

All duly noted. But as I understand it it's also your position that a (hypothetical) Obama decision not to prosecute, regardless of the weight of the evidence, would be defensible on political grounds.

[Eric Martin]

What are the circumstances, if any, under which prosecutorial discretion should be formally, rather than informally limited?

Formally limited? I don't know all the situations in which you would want to formally limit discretion, but I can't think of any off the top of my head.

What I find slightly unnerving is that you're endorsing that policy without any apparent exceptions.

What do you mean by this? I'm endorsing a policy without exceptions? Really?

I'm not endorsing the policy of non-prosecution, I'm saying that there is a plausible rationale for doing so under current circumstances. This is not a rule without exceptions.

[radish]

This is not a rule without exceptions.

Well this is what I'm trying to get at. If you say "this rule has exceptions" but then you can't offer any particular exceptions it's a bit hard to figure out where you stand exactly.

I'm saying that there is a plausible rationale for doing so under current circumstances.

Yes, I get that. What I don't get is where you think the boundaries of that plausible rationale lie. You just said that you can't think of any circumstances where a formal limit on prosecutorial discretion should exist. I don't see how this any different from saying that the only way a law can be enforced is if the person tasked with enforcing it chooses to do so.

[Sapient]

radish, it depends. I'd be willing to listen to the argument against going forward with prosecution. With the Supreme Court as it is currently constituted, I'm worried that a conviction might not be upheld. That would, in fact, be a disastrous precedent, much more so than the failure to prosecute.

Over time, there have been some very cynical things done to protect political wrongdoers, and to misuse the law for political ends. Some examples that come to mind are Bush v. Gore, Nicaragua v. United States, Ford's pardon of Nixon, the Clinton impeachment, on and on.

Most of the time, the system of government works, and the officials do their jobs. I haven't given up on the possibility that the crimes of the Bush administration might be avenged, and that the various branches of government will do the right thing. But Obama can't do it single handedly.

What the right wing (politicians and press) did to Clinton was to conduct a witch hunt, then attempt to drive him from office based on a pecadillo. He didn't leave office, but they derailed his presidency and paved the way for Bush. Then they gave us Bush, which was practically a coup. I believe we are finally going to be able to restore the integrity of our system and our process, but I'm not sure that we can do it all at once. They have almost destroyed our country in too many ways to count, and it's going to be a difficult road.

This time, I don't think it's just a matter of a conservative party having had power, and a progressive party succeeding it. What just happened is darker than that, and I trust Obama with the judgment to lead us out of where we were, even if the way has to be one step at a time. We're not in the clear.

[Sapient]

In my last comment, I was answering radish's question as to whether I think nonprosecution is defensible.

[radish]

With the Supreme Court as it is currently constituted, I'm worried that a conviction might not be upheld.

You said that before. Even assuming it reached the Supreme court before Stevens retires it's not clear to me what sort of scenario you're worried about. I can imagine some disastrous scenarios, and I can imagine some plausible scenarios, but I'm having trouble coming up with a scenario that's both disastrous and plausible.

Some examples that come to mind are Bush v. Gore, Nicaragua v. United States, Ford's pardon of Nixon, the Clinton impeachment, on and on.

So, uh... Yeah. Every few years we have to sweep a nasty pile of wrongdoing under that oval office rug that Bush is so proud of, and this is no different?

I'm not entirely unsympathetic to the political argument, but it's not like I'm asking for Kissinger and Negroponte to be shackled and shipped off to The Netherlands either. I just don't want the torture to start right back up the minute Obama leaves office. We gave up investigating Iran-Contra so we could get health care reform, remember? Not only didn't we get health care but we got George Bush Jr. as our fricking President and Dick fracking Cheney as veep. Just try to tell me that would have happened if somebody had bothered to go after Poppy or Nixon, even if they didn't get them in the end.

This is why I'm trying to get some explanation which laws should be enforced at the discretion of the prosecutor and which ones shouldn't. People say, "well we can't crack down this time." I've heard people saying that all my life and the things that we don't crack down on keep getting worse and worse. "Well at least they weren't torturing people" is the sort of reason we heard for letting Iran/Contra slide (not that we weren't torturing people, just that it was all sub rosa). Now we're hearing stuff like "well, at least they didn't nuke anybody."

WTF? What happens when the President who does decide to nuke somebody leaves office? "Well at least they didn't destroy life on earth?"

If federal torture laws and the Geneva Conventions are "discretionary" then why not kidnapping? Why not state laws regarding rape and murder? Where do DUI and criminal negligence and fraud fit in? And if you think that discretionary laws should be limited to those which have no victims then why were y'all even bothering to disagree with Jesurgislac?

I trust Obama with the judgment to lead us out of where we were, even if the way has to be one step at a time.

Fair enough. I'm not opposed to incrementalism in principle. I'm just suspicious of politicians, and I don't expect anybody above Captain to see the inside of a courtroom in the next eight years. Hopefully I'm also embarrassingly wrong.

Rats. I wasn't really even wanting to get into this conversation and now I've gone and ranted... Sorry...

[Eric Martin]

Radish: I'm all for prosecution, but can see the counterargument.

As to limits, let's set genocide as the obvious boundary, and accept that there are less destructive acts that I would consider in the category of outside of discretion.

Intentional civilian atrocities. Mass extra-judicial executions.

Torture is close. It's just that I tend toward the pragmatic.

I just don't want the torture to start right back up the minute Obama leaves office.

That's the real concern. And it's a legitimate one.

[Gary Farber]

"Anyone interested in setting a new course for democracy in this country should" write to the Obama change.gov site. What on earth the good of writing an about-to-be ex-president who couldn't care less that he's unpopular would be, I can't imagine. What could be more pointless and useless? What are you people thinking?

"Of course this Goodbye George W. site comes replete with great political memorabilia on sale"

Oh, now I get it.