Category Archives: The Middle East

torture: against honor and liberty

In the Hamdan decision, the Supreme Court said that torture was our responsibility. We couldn’t allow the president to decide secretly whether and when to obey the Geneva Convention. There would have to be a public law, passed by our representatives, subject to our review at the next election.

Alas, the Congress appears likely to pass legislation that will permit torture, buoyed by polls that suggest the American people prefer to sacrifice our ancient common law principles in favor of spurious security. Our national honor and liberty are at risk. Those are old-fashioned terms, more securely anchored in conservative than in progressive thought. Yet they are precisely the correct terms, as I shall argue here.

Torture is dishonorable because of the perverted personal relationship that it creates between the torturer and the victim. That is why people of honor do not torture, and nations with honor do not condone it. As David Luban writes: “The torturer inflicts pain one-on-one, deliberately, up close and personal, in order to break the spirit of the victim–in other words, to tyrannize and dominate the victim. The relationship between them becomes a perverse parody of friendship and intimacy: intimacy transformed into its inverse image, where the torturer focuses on the victim’s body with the intensity of a lover, except that every bit of that focus is bent to causing pain and tyrannizing the victim’s spirit.”

Torture may not be the worse injustice. To bomb from 30,000 feet can be more unjust, because more may die. To imprison 5.6 million Americans may be more unjust, because one in 37 of us spends months or years in dangerous, demeaning, state-run facilities. But there is a difference between injustice and dishonor. Bombing people and locking them up are impersonal, institutional acts. Torture is as intimate as rape. It sullies in a way that injustice does not. That is why the House of Lords ruled in 2005: “The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it.”

Torture threatens liberty because it gives the state the power to generate testimony and evidence contrary to fact, contrary even to the will of the witness. It thus removes the last constraint against tyranny, which is truth. Torture was forbidden in English common law since the middle ages, not because medievals were sqeamish about cruelty–their punishments and executions were spectacularly cruel–but because a king who could use torture in investigations and interrogations could reach any conclusions he wanted.

Torture is personal, yet torture is an institution. One cannot simply decide to torture in a one-off case, a hypothetical instance of a ticking time bomb. To be effective, torture requires training, equipment, expertise, and settings. The bureaucracy of torture then inevitably seeks to justify and sustain itself–if necessary, by using torture to generate evidence of its effectiveness. As Phronesisaical says, “Torture requires an institution of torture, which … entails a broader torture program than the administration would have us believe.” Again, the Lords were right:

The lesson of history is that, when the law is not there to keep watch over it, the practice is always at risk of being resorted to in one form or another by the executive branch of government. The temptation to use it in times of emergency will be controlled by the law wherever the rule of law is allowed to operate. But where the rule of law is absent, or is reduced to a mere form of words to which those in authority pay no more than lip service, the temptation to use torture is unrestrained.

Plamegate is over (I hope)

It turns out that the original leaker in the Valerie Plame case was not Karl Rove or another Administration heavy or hawk, but rather the relatively independent and distinguished diplomat Richard Armitage. It is still possible that Rove, Scooter Libby, and others tried to use secret information about Plame to impugn Joe Wilson. However I have been arguing since at least July 2005 that the whole Plame story is a snare and a distraction for the anti-war side.

The critical questions have always been obvious and public. Was the invasion ever legitimate? Was it ever wise? Was the US plan adequate? What is to be done now? Democrats and other potential critics of the Administration failed to persuade the public to see those questions their way in 2004 and 2005. If the public is outraged now, it’s too late.

The opponents failed, I think, because they could not articulate an alternative policy for Iraq that was clear and persuasive. Having failed to win in the court of public opinion, some critics of the Administration were eager to prevail in a literal court–on criminal charges that might exemplify or symbolize the Administration’s bad behavior. But …

1. That approach would never address the crucial public issues: especially, What is to be done?

2. If someone had been indicted and convicted, it’s not clear how the public would have responded. People might have concluded that Federal politics is not worth paying attention to, because it’s an obscure battle between elites and lawyers. Or they might have assumed that liberal judges had once again victimized Republicans who were trying to be tough on America’s enemies. Or they might have decided that they were hopelessly confused, because something complicated had happened, involving people with obscure roles and names like “Scooter.” Or people might have concluded that the Bush Administration was generally dishonest about the War. But that should have been obvious already.

3. A prosecution in the Plame case would criminalize the disclosure of information. Although some leaks are criminal, and many are unethical, our strong presumption should be that information belongs in the public domain and speech is protected by the First Amendment. I was always uncomfortable with the precedent that might be set if Administration officials were prosecuted for leaks.

4. Resting hopes on the Plame case meant assuming that Joe Wilson was reliable and that Karl Rove and/or Scooter Libby had broken the law. It is always a bad idea to place bets on individuals based on their ideologies. Wilson sounds like an impressive diplomat with the correct views about foreign policy. He comes from a general milieu that makes me comfortable–I’d have a latte with him at Starbucks if he wanted to. In contrast, I loathe some of the Administration’s principals. And yet Karl Rove may have done nothing illegal in respect to Valerie Plame, and Joe Wilson may have lied. People with good ideologies often act badly, and vice-versa.

5. Above all, the rule of law depends on making criminal cases out of specific, intentional violations of statutes–not behavior or policymaking that is generally harmful to the country or the world. We must address bad policy through public debates and elections, and leave courts to deal with actual lawbreaking. To confuse the two is dangerous, even when the people in the dock happen to be odious.

Iraq: the next tragedy

Daniel Byman and Kenneth Pollack’s editorial in Sunday’s Washington Post prompts some questions that I have not seen discussed elsewhere. Why have we not seen the long columns of refugees in Iraq that are typical of civil conflicts? What would it take to cause massive flows of refugees? In particular, would the removal of US forces cause Iraqis to throw some possessions in suitcases and start walking for the border? Who would move, and where would they try to go? What would be the consequences if hundreds of thousands or millions of civilians attempted to walk into Iran, Turkey, Jordan, Syria, Saudi Arabia, or Kuwait?

I realize that there have been population shifts already, with Iraqis moving into more homogeneous neighborhoods and some middle class folks emigrating. Byman and Pollack estimate that about half a million Iraqis have migrated in those ways. But we haven’t seen the equivalent of Kosovo (72 percent of the population displaced), or Congo (7.1 percent of the population killed). Anyone–Democrat or Republican–who wants to be part of governing the United States had better figure out how to prevent mass migrations in Iraq and what to do if they begin.

engagement in the Middle East, without government

We can expect a big debate between 2006 and 2008 about whether America should disengage from the Middle East or continue to intervene there. Disengagement would require cutting our use of foreign oil, reducing our military aid to Middle Eastern states, and avoiding both military and diplomatic entanglements. Continued intervention would mean some more thoughtful and effective combination of diplomacy and occasional military force.

If you’ll excuse the clich?, there is a Third Way. We could engage in the Middle East, but not through the federal government. We have deep experience now with informal diplomacy, with cultural exchanges through universities and other independent institutions, and with transnational social movements that can promote democracy without working through the state.

I think the fiasco of the current intervention in Iraq cannot be fully blamed on the Bush administration. It is a more systemic failure, and blame must be shared (in some proportion that I do not know) by the uniformed military, the press, the political opposition, and even American citizens in their relationship to politics. There are some general lessons here about the susceptibility of large bureaucratic institutions to massive failure, especially when they have vast resources and power and monopolize information. The argument for non-governmental politics seems stronger than ever.

[August 3: Coincidentally, the same topic is now under discussion at Crooked Timber.]

more on spinning Hamdan

The scramble that I predicted last Friday–to fix the meaning of Hamdan–has begun. The Post’s headline on Saturday read, “GOP Seeks Advantage In Ruling On Trials: National Security Is Likely Rallying Cry, Leaders Indicate.” Just as I suspected, there have been efforts to link the Supreme Court’s ruling against Bush to the New York Times’ decision to publish national security leaks. “It will be worse for the Democrats to be seen as favoring the terrorists than favoring the New York Times,” says one talk-show host.

The administration will want the following to be the popular interpretation of Hamdan: Five justices of the Supreme Court (a bunch of lawyers) found various technical grounds (including treaties negotiated by foreigners) to make life more difficult for the military. Congress now has a duty to support the Commander in Chief by creating military tribunals by statute. In the future, presidents will have to cross their t’s and dot their i’s in cases very similar to Hamdan. But in cases with significant factual differences from Hamdan, they can go ahead and act unilaterally again, and the Court ought to rule for the executive.

That reading of the case would be very bad for majoritarian democracy, the rule of law, and limited government–values of special concern to principled conservatives. (See, for instance, Patriots to Restore Checks and Balances). Just as true conservatives should want to restore the balance of powers, so partisan Republicans should see the importance of reimposing checks on the executive branch–otherwise, a Democratic president may use federal agencies to suppress rights that they value.

In my opinion, it’s a rhetorical mistake for Members of Congress to emphasize their own prerogatives, as Senator Spector did by saying that from now on decisions will be made by Congress, “because it’s our constitutional responsibility.” That sounds like a matter of turf–and Congress is none too popular. I’d rather hear that the Court required us, the American people, to make difficult decisions about how the United States shall handle captives in the current struggle. Such decisions cannot be made by presidential fiat but must be debated openly, because they are our responsibility. Because Congress has the formal power to pass legislation, we must follow the Congressional debate, deliberate, express our views, and vote accordingly in November. That, after all, was how the framers intended us to govern ourselves.