A PRESIDENTIAL COMMISSION ON TORTURE WOULD SATISFY NO ONE
As my regular readers know, I have written in the past that I believe the actions of the Bush Administration in authorizing torture broke American and international law and some accounting is necessary in order for us to confront what the government did in our name.
I will not rehash the arguments for and against torture. Suffice it to say, I reject the notion that the ends justifies the means for a variety of reasons, and that I believe those who are sincere in their support of Dick Cheney’s rationale for “enhanced interrogation techniques” have lost sight of one of the things that makes us an exceptional nation; our respect and reverence for the rule of law.
That said, I have also rejected the idea of torture prosecutions - not because I believe the guilty should get off scott free but because any reasonable and fair minded person looking at the matter knows that the administration believed they were acting in the best interests of the nation, and that they honestly believed they had finessed the treaties and statutes by their stretched, and ultimately legally incorrect justifications for torture. Was it wrong for the Bushies to try to extend a fig leaf of legality over what turned out to be serious violations of domestic law and international agreements? I believe they felt they had little choice. To my mind, that doesn’t make it right, nor am I convinced (nor are interrogation experts) that non-torture techniques couldn’t have elicited the same information.
Yes, torture was probably responsible for Khalid Sheikh Mohammed spilling some secrets. But what we’ll never know is if the professional interrogators would have been able to break him down using legal methods. Rejecting the “ticking bomb scenario” as unrealistic, I and many others - including many in the military and intelligence communities who interrogate for a living - have come to the conclusion that the plots broken up because of our waterboarding KSM would probably have been foiled using perfectly legal means of interrogation.
But this doesn’t answer the question about prosecuting or not prosecuting offenders - including high level officials who ordered underlings to break the law. Fred Hiatt, writing in WaPo today, has a thoughtful, but ultimately flawed analysis and recommendation:
On the one hand, this is a nation of laws. If torture violates U.S. law — and it does — and if Americans engaged in torture — and they did — that cannot be ignored, forgotten, swept away. When other nations violate human rights, the United States objects and insists on some accounting. It can’t ask less of itself.
Yet this is also a nation where two political parties compete civilly and alternate power peacefully. Regimes do not seek vengeance, through the courts or otherwise, as they succeed each other. Were Obama to criminally investigate his predecessor for what George W. Bush believed to be decisions made in the national interest, it could trigger a debilitating, unending cycle.
By attempting to navigate between these two principles, Obama has satisfied neither. Last week his administration took another step down a path of investigation and recrimination, without coming any closer to truth-telling or justice as most Americans would understand it.
Even with the best of intentions - and I do not grant the Obama administration that desire based on the rank partisanship they have demonstrated from top to bottom - any prosecution would necessarily be perceived as being politically motivated. The same holds true for any congressional hearings. The idea that the Democrats could conduct anything approaching non-partisan, or at least fair hearings on this issue, involving the Bushies, is laughable. The pressure on Democrats in Congress to turn the hearings into an inquisition from their rabid, partisan base would be overwhelming.
Hiatt suggests a presidential commission:
There is a better, though not perfect, solution, one that the administration reportedly considered, rejected and should consider again: a high-level, respected commission to examine the choices made in the wake of Sept. 11, 2001, and their consequences.
Such a commission would investigate not just the Bush administration but the government, including Congress. It would give former vice president Dick Cheney a forum to make his case on the necessity of “enhanced interrogation techniques.” It would examine the efficacy of such techniques, if any, and the question of whether, even if they work, waterboarding and other methods long considered torture ever can be justified.
Some on the left would object because the goal would not be prosecution and punishment; as in South Africa, amnesty might be promised in exchange for truth-telling. Some on the right, and some in government now, would worry about damaging national security with public airing and rehashing of past misdeeds.
Hiatt bases the idea for this commission on what he believes is a pre-requisite for such a body to be effectve: that “the two political parties compete civilly…” I don’t know where Mr. Hiatt has been spending his days these last couple of decades but it certainly hasn’t been in Washington if he truly believes what he wrote.
There is no civility between the parties. It is all out partisan warefare on any and every issue of consequence - and usually on trivialities as well. Both sides blame the other for this state of affairs, which would be amusing in any other context. The parties are locked in a death grip, driven to hold on with bulldog tenacity by their rabid, uncompromising, unforgiving bases of support whose influence is all out of proportion to their numbers.
But these hysterical party men are also their most reliable voters, as well as being a significant source of volunteer campaign help, and a wellspring of donations for the member’s re-election. It doesn’t take much for the base to turn against a member and given how organized they have become, can turn out a primary candidate to challenge the member on a whim.
For civility to return to politics, there must be a basic recognition by both sides that the other side has the best interests of America at heart. This does not seem possible when the leadership of both parties toss around epithets like “evil mongers” or “culture of death” to describe the other side.
A presidential commission of the kind suggested by Hiatt might succeed in gathering relatively non-partisan members, but couldn’t help being caught up in the vortex of partisan wrangling. Every finding, every witness, every statement made would be filtered through the unique prism found in the base of both parties. It would be marginally different than a select congressional committee and much better than prosecutions. But it would ultimately fail to satisfy either side because it’s mandate would not be to score political points but to find some elusive “truth.” Rather than serve to illuminate what happened and heal the nation, such a commission would eventually be seen by both sides as favoring the opposition.
We live in a different country than existed at the time of the 9/11 Commission. The undisguised hatred of President Bush and the virulent reaction of his supporters to defend him by trashing the opposition over the last 8 years has made the atmosphere in Washington worse than it was in 2002.
It may be that Hiatt’s idea will turn out to be the best option in a universe of bad choices. But it is not a solution as long as neither side trusts each other enough to put aside the massive distrust each holds for the other and see the wisdom of trying to come to grips with this unique, and to my mind, tragic interlude in our nation’s history.
How do you counter undisguised hatred? What exactly was the virulent reaction of his supporters? To acquiesce to the constantly shifting democrat positions would have been ludicrous. Interestingly, they do not seem to have the stomach for dissent now that they are in a leadership position. It is now “Un-american” and “Evil mongering” to dissent.
President Bush was responsible for defending the country. Many of the politicians complaining today were advocating the same policies during that time. It is one thing to question a policy after the fact. It is quite another to brand your political opponents as criminals years later.
Comment by Gregg — 8/30/2009 @ 3:49 pm
Rick,
I suggest you read the following article by Marc A. Thiessen in the National Review Online:
http://article.nationalreview.com/?q=YTMwYWM3MmZkNmQ0NjZiZTlkOWM4YTMzYzI0MmVlZTQ=
It really does have a valid thoery on the events at hand.
Here is an excerpt:
“The principle at work here is casuistry, in the proper sense of that term. Under casuistry, a just society adheres to certain moral norms. There are times when one finds exceptions to these norms, but the norm remains — and the exception must be justified. For example, the Ten Commandments teach us, unequivocally: “Thou shalt not kill.” Yet most of us agree that there are circumstances in which it is both moral and ethical to kill another human being. If a policeman sees a criminal who is about to kill an innocent person, he may use lethal force to stop him. If a foreign enemy threatens your country, it is permissible to go to war to defend it against such aggression. The norm — killing human beings is wrong — remains. But in some circumstances, killing — indeed, organized killing by the state — is morally and ethically permissible.”
In my opinion this exemplifies the thought processes in place at the time. The article goes on to explain that concept in detail. Even going in depth and saying:
“Some disagree with casuistry and take an absolutist position on these moral questions. When it comes to matters of war and peace, we call such people pacifists. The critics of the CIA program are effectively arguing from a position of radical pacifism. Against pacifism stands just-war theory, which argues that society can prosecute war so long as it adheres to certain standards: discrimination and proportionality.”
I have to think that the US is a just and good country. There are times when the means required to defend the country cross the lines with everyday rule of law. I understand this is a potential slippery slope, but I believe that the American people are such that we will constantly monitor this for abuse.
Keep in mind that if we are constantly at war or being attacked we cnnot concentrate on domestic matters. I believe that Sun Tzu was correct when he theorized that a nation that is known for destroying it’s enemies, will never be attacked. I desire the US to continue being that nation.
Comment by JustIce — 8/30/2009 @ 4:39 pm
” . . . and that they honestly believed they had finessed the treaties and statutes by their stretched, and ultimately legally incorrect justifications for torture.”
Is this based on any of the available evidence, and if so what?
As the timeline seems to stand, they decided to do it, did it, and then “sought” justification for it (I’m being generous here). That would belie the idea that they thought they were acting in a legally correct manner. Rather it suggests that they were well well aware they were in violation of the law and tried to get cover.
As I said, if there’s something that indicates this isn’t correct please direct me to it.
Comment by busboy33 — 8/30/2009 @ 5:24 pm
“But it [a Presidential commission] would ultimately fail to satisfy either side because its mandate would not be to score political points but to find some elusive ‘truth.’”
Sad but true. It reminds me of some advice I once heard given to newly-weds: “You can either be right or you can have peace.”
Personally, I think the investigation is a pure political move intended to rally Obama’s base. And I think it will backfire in the long run. Time will tell.
Comment by Doug King — 8/30/2009 @ 6:01 pm
As the timeline seems to stand, they decided to do it, did it, and then “sought” justification for it (I’m being generous here). That would belie the idea that they thought they were acting in a legally correct manner. Rather it suggests that they were well well aware they were in violation of the law and tried to get cover.
I feel sorry for those in the CIA in the immediate aftermath of 9/11 and the extent to which people went to defend their country. Preventing another attack seemed to be the primary concern at that time.
The CIA is now entirely out of the interrogation business - there is an article today in the WaPo how morale is down. who wouldnt be demoralized after being played in a game of political football ?
The enormous hubris of the anti torture absolutists is insufferable. Strike that.. it is tortuous.
And if another attack happens on this country, the CIA will once again be accused of not being good at its job.
Lose-Lose.
Comment by Nagarajan Sivakumar — 8/30/2009 @ 9:19 pm
“Some disagree with casuistry and take an absolutist position on these moral questions. When it comes to matters of war and peace, we call such people pacifists. The critics of the CIA program are effectively arguing from a position of radical pacifism. Against pacifism stands just-war theory, which argues that society can prosecute war so long as it adheres to certain standards: discrimination and proportionality.”
Well, yes and no. Yes, pacifism stands against just war theory… but this definition of pacifism is nonsense.
http://dictionary.reference.com/browse/pacifism
1. opposition to war or violence of any kind.
2. refusal to engage in military activity because of one’s principles or beliefs.
3. the principle or policy that all differences among nations should be adjusted without recourse to war.
Obviously, a person can be opposed to strapping down a powerless person and pouring water into his nose without meeting any of these requirements for being a pacifist, let alone a radical one. Pardon me, but THIS what you call torturing the language!
Maybe Sun Tzu had a point about the nation that is known for destroying it’s enemies being rarely attacked– but I’ll bet the nation that is known for torturing prisoners is rarely surrendered to. Faced with the prospect of real or imagined torture, combatants, it seems to me, will choose to fight to the death. I mean, duh!
Sure, neither liberals nor conservatives will be satisfied with a presidential commision. Those guys are never satisfied by anything. It doesn’t matter what anyone wants, the truth is what we need. Prosecution and punishment should only be meted out in the most heinous cases possible, and perhaps not all,but we need to know everything about what happened.
Comment by blackbelt_jones — 8/30/2009 @ 9:55 pm
” Preventing another attack seemed to be the primary concern at that time. ”
Let’s assume that is absolutely true (and I don’t dispute that). It has no bearing on whether those that ordered torture thought it was legal or illegal.
Comment by busboy33 — 8/31/2009 @ 12:13 am
Let’s say this slowly: the Bush administration wanted to use 9/11 as a pretext to invade Iraq, even though Iraq had nothing to do with 9/11. So it tortured people to make them confess to the nonexistent link. Period.
Thus anyone involved should be tried and thrown in prison in accordance with the Rule of Law…
you know, because “our respect and reverence for the rule of law” pretty much dictates that we must.
OR, we could make excuses for them.
Or, we could let bitter enders like you play politics with the judicial process. What fun, eh? Forget national security. Forget fairness. Just apply your draconian idea of “justice” using your absolutely unproven thesis - as partisan a take on the Iraq War as can be advanced - and realize the enormous satisfaction of seeing your political opponents thrown in jail.
Thus begins a cycle of criminalizing political disputes that will have no end.
ed.
Comment by Chuck Tucson — 8/31/2009 @ 10:02 am
heh. unproven thesis. right.
Comment by Chuck Tucson — 8/31/2009 @ 1:09 pm
Thus anyone involved should be tried and thrown in prison in accordance with the Rule of Law…>Does that include all 297 congressmen and 77 Senators? Do we capture and prosecute all of the Brits that fed us bad info?
It was a bad call to go in, but only in retrospect- there was intelligence that indicated Hussein was developing WMD, and he had already proven that he would use them. Hussein was given every opportunity to avoid conflict, but he proved to be repeatedly recalcitrant.
The psychos that really need to be invaded are North Korea and Iran. Those are the guys that are going to detonate the next nuke. Both leaders are almost certainly clinically insane.
Comment by lionheart — 9/1/2009 @ 6:25 am