Tyranny

by hilzoy

From the Washington Post:

"The attorney general yesterday rejected growing congressional calls for a criminal investigation of the CIA's use of simulated drownings to extract information from its detainees, as Vice President Cheney called it a "good thing" that the CIA was able to learn what it did from those subjected to the practice. (...)

Testifying before the House Judiciary Committee, Attorney General Michael B. Mukasey said Justice Department lawyers concluded that the CIA's use of waterboarding in 2002 and 2003 was legal, and therefore the department cannot investigate whether a crime had occurred.

"That would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice," he said."

A transcript of the relevant exchange is here; transcript of an important followup is here.

Personally, I can't see why the fact that someone in the Justice Department signed off on something means that they cannot now investigate. And I can see a lot of reasons for not saying that, like the fact that that would mean, in practice, that if you had people in the DoJ who were willing to sign off on whatever the President wanted, even if it was patently illegal, no one could ever be prosecuted for following those orders. Just get someone in DoJ to make some idiotic ruling, saying something patently false, and voila! no legal jeopardy! See how easy?

This means that if the Justice Department were sufficiently corrupt or compliant -- and does anyone want to argue that it wasn't, under Alberto Gonzales? -- the administration could do whatever it wanted without worrying its little head about the law. David Kurtz at TPM:

"We have now the Attorney General of the United States telling Congress that it's not against the law for the President to violate the law if his own Department of Justice says it's not. (...)

President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff."

He adds a note from one of his readers:

"It's not just that the Attorney General's position is that a DOJ Order makes the subject activity legal but that, as Nadler brought out, there is now no recourse to a judicial test, either criminal (through refusal to prosecute) or civil (through the state secrets privilege based solely on a DOJ affidavit). The DOJ is entitled to take whatever position it wants, however self-serving and unitary, but now there is no avenue for judicial review and so that is the end of the story."

Ari at The Edge of the American West puts it more concisely:

"We have a tyrant in the White House."

That pretty much sums it up. And no, I don't think I'm overreacting. When the Executive asserts the right to disregard the will of Congress without any possibility of judicial review, that is tyranny.

And don't say that our poor government officials have no choice but to rely on the DoJ's rulings about what is legal and what is not. We don't accept this excuse from anyone else. When mafia hit men assure us that according to their lawyers, members of other crime families are not persons within the meaning of the homicide statute, or corporate CEOs tell us that their lawyers advised them that cyanide does not count as a toxic substance for the purposes of the Clean Water Act, we do not say: oh, well, that's OK; just don't do it again. We say: too bad. You should have hired better lawyers. Have fun in jail.

While I don't think that whether or not waterboarding is legal is a tough call, I do think that it must be difficult to be a CIA agent working without good legal guidance. But that's not a good reason to set a precedent according to which any administration can do whatever it feels like if it can get someone in the DoJ to sign off. The administration should have hired good, honest lawyers, not people who would tell them whatever they wanted to hear. There are a lot of reasons for hiring competent, honest lawyers, and protecting government agents who genuinely want to stay within the bounds of the law is one of them. The Bush administration did not do this, and because it didn't, it let its own people down and betrayed their trust.

In some cases (not including waterboarding), non-lawyers in the government might have done things that they believed to be legal because they trusted the DoJ. It might seem unfair to hold people who are not lawyers legally liable for this administration's failures. However, as I said above, we don't accept this excuse from other people; and government agents are the last people we should exempt from the rule of law. Adding CIA interrogators to the already long list of people who might pay the price for the administration's cavalier attitude towards the law is better than giving up on the rule of law and our constitutional system of government.

Comments

[Slartibartfast]

I don't know if that last is the lost comment of Adam's that I published, but it ought to be in here somewhere.

This has been a public service announcement.

[Adam]

That was it. Thank you.

[Jesurgislac]

This is an important point to consider in any discussion of torture by the US, and the attempted legal defenses of it:

The UN Convention on torture does not spell out which methods of torture are illegal and which are allowable "interrogation techniques", because that was never the point of the Convention.

The point of the Convention was not to allow detaining powers to get as close as possible to torture without going over the edge: the idea was to ban torture. All the legal quibbling over "is waterboarding torture? is sleep deprivation torture?" treat the Convention as a kind of gotcha game, a "How Far Can You Go" game.

[Adam]

That is the central flaw of the Conventions, Jes. They provide no clear brightline that you can hold up to the Bush Administration's face and say "LOOK. TORTURE. OK?" Without that unrealistic assumption of good faith, they accomplish nothing. You are describing the status quo, not a solution.

Here is what you are missing:

It was my intention to make you unhappy about the ideas you were defending, because they strike me as indefensible ideas that no one should be happy with

I am not defending these ideas. I am articulating the defenses of ideas, which are quite clearly wrong. Sleep deprivation and waterboarding are quite clearly torture.

This is the distinction that seems to be giving you trouble: The ideas are wrong -- the problem is that they are also defensible. The Bush Administration's strategy thus far has simply been to refuse to answer the questions. Until they do, "wrong" is irrelevant -- "defensible" wins the day. The moral choice is deferred. The decision is passed down to 20-year-old soldiers who are dared to choose between their consciences and their freedom. "Willing" or "unwilling" is not the issue -- forcing that Hobson's choice on an innocent person is.

Believe me, people will definitely continue to be punished for doing things that are wrong, when the outrage heats up enough. But that is mob justice, not the rule of law. Until the line in the sand is drawn and written down, the people responsible for the policies will suffer no consequences. But many people, torturers and tortured, will pay the price for it.

OK, I really am done now. If I can't make it any clearer than that, I won't be able to. I'll find someone who's been to Gitmo and ask them their opinion.

[dutchmarbel]

Many of those interrogators will be haunted forever by what they did, whether they should have said no, what it says about them as people -- while the people who actually told them to do it, like Alberto Gonzales and Donald Rumsfeld, sleep peacefully in their cushy beds at night, and to them "torture" is just a word that you try to define in the way that keeps you out of trouble. That's just wrong. Wrong, wrong, wrong, wrong, wrong.

We totally agree there. But I think (like general McCaffrey appearantly did) that you do that with a close to zero-tolerance policy. I also agree with you that the people in charge should get even heavier punishment. But people should know that there are strict borders to be respected.

[Jesurgislac]

That is the central flaw of the Conventions, Jes. They provide no clear brightline that you can hold up to the Bush Administration's face and say "LOOK. TORTURE. OK?"

Yes, they do. I've quoted them, twice, cited them. You know what they say: you know the bright line is THERE. That's not the problem: the central flaw is that the Bush administration is determined to disregard the UN Convention on torture.

I am not defending these ideas.

You are giving a very good impression of someone who is doing so - including, I note, your persistent claim that there just isn't a clear convention on what is torture.

The ideas are wrong -- the problem is that they are also defensible.

No. If you take the UN COnvention on Torture, not as a "gotcha game" but as the clear bright line it is, the ideas are not defensible.

Until the line in the sand is drawn and written down, the people responsible for the policies will suffer no consequences. But many people, torturers and tortured, will pay the price for it.

The line in the sand is drawn and written down. But so long as the Bush administration, and its successors, are willing to claim that the line is not there, the torture can continue, without penalty. Until the US is willing to enforce that line, the US is a pro-torture nation.

Many Americans are willing for that line to be enforced. So long as you argue that the line isn't there, I'm not able to think of you as one of them.

[Adam]

No. If you take the UN COnvention on Torture, not as a "gotcha game" but as the clear bright line it is, the ideas are not defensible.

You're still confusing "defensible" and "wrong." Even by its own terms the Convention isn't a very well-written bright-line, though it does sound pretty.

You're also still not grasping that the U.S. isn't even remotely bound by the Convention, particularly with all the reservations.

As an analogy: The Model Penal Code is pretty well-written, but if your State decides to base its criminal statutes on the Old Testament, the mere existence of the MPC doesn't mean that "stoning" gets taken off the penalty list. That's the position we're in right now.

The line in the sand is drawn and written down. But so long as the Bush administration, and its successors, are willing to claim that the line is not there, the torture can continue, without penalty. Until the US is willing to enforce that line, the US is a pro-torture nation.

Dingdingding! Correct!

Many Americans are willing for that line to be enforced. So long as you argue that the line isn't there, I'm not able to think of you as one of them.

Ooh. So close, yet so far. You're almost there.

You correctly observe that "the line is not there" right now. Therefore, claiming that we should punish torturers even though our laws don't demand it is tantamount to saying that stoning is an appropriate punishment because though we haven't yet moved beyond Old Testament Law, hey, it's the best we've got. What you're saying is: "Who cares if a few petty thieves get stoned along with the murderers and rapists? They should have know better than to shoplift! What are you, pro-shoplifting? Pro-murder!?"

As you are hopefully beginning to recognize, you've been posing a false dilemma. Prosecuting someone under an unjust law is generally no better than not prosecuting them at all. Prosecuting a soldier under our current "interrogation rules" (which don't actually say anything) is not "justice" regardless of their guilt, because the law itself is not just. They may indeed be guilty, but until the law is fixed it is not a legitimate means by which to judge that guilt.

Many Americans are willing for that line to be enforced. So long as you argue that the line isn't there, I'm not able to think of you as one of them.

Nice try, but you missed a step in the middle. Many Americans, myself included, are indeed quite willing for that line to be enforced. However, in order for the line to be enforced, it has to first be drawn, since, as you concede, it does not currently exist.

Since Hamdan, our reservations to the Torture Convention, the text of the Geneva Conventions, and the ICC all dictate that the Military Commissions Act and the Uniform Code of Military Justice are the binding authorities here, the precondition to just enforcement is incorporating a clear brightline into the MCA or the UCMJ. That could mean simply adopting the Torture Convention despite its vagueness, or -- better yet -- actually defining in clear language what is and isn't allowed.

A definition is all well and good, but it is not a guideline for conduct no matter how persuasive it might be to you or me. Until we actually say what the rules are, we might as well be stoning people to death.

[Gary Farber]

You're still confusing "defensible" and "wrong."

I'll cease the color commentary after this, since you're capable of coming to your own conclusions, and as I said, Jes has many other admirable qualities.

But there doesn't seem to be a lot of evidence to support the case that one of Jes' strengths is recognizing that such a distinction is possible.

But, who knows? Every day is a new one, and maybe you'll have a different experience.

[Jesurgislac]

However, in order for the line to be enforced, it has to first be drawn, since, as you concede, it does not currently exist.

I have been saying, all along, all down this thread, that the line DOES exist and HAS been drawn.

The problem is, currently, those in authority do not want to enforce that bright line but instead to find ways of getting around it.

For some reason, not only do you not want to admit that the bright line has been drawn, you want to pretend that I've "conceded" it hasn't.

I don't understand why you want to do this, and you've evidently not able to explain.