Edging slowly forward
G did a comment on ‘The downside of torture’ that needs to be out here in the daylight, so here it is. OB.
What is perhaps most appalling about this is that prosecuting torture has become nothing more than another tawdry political game. Barack Obama is, among other things, not just a Harvard Law graduate but an actual Constitutional scholar. He knows what an appalling clusterfuck the Bush Administration made of the Constitution with its denial of habeas corpus, secret prisons, torture, and all that. He knows what the morally and legally required path must be. But he is rather scrupulously avoiding that path.
Worse, Obama’s administration has in almost all terrorism-related court cases pushed the absurdly counter-Constitutional secrecy policies and claims of authority to defy law at whim of the Bush administration. I am fairly certain that this is not, as some have claimed, out of the desire to preserve those claimed powers for his own use. Rather, I think it is fairly clear that his stated political position of “moving forward” and “not looking back” – i.e. avoiding politically troublesome legal prosecutions of Bush administration criminal acts – absolutely requires that he perpetuate the official legal cover-ups for those activities as long as possible. It is a delaying tactic.
I think Obama has decided that it would be too politically costly to prosecute Bush Administration war crimes at this time. (Sadly, he may be right. Recent polls show that less than half of all Americans support legal investigations of torture and all that, and the ugly reality of such prosecutions would only make them less popular as they proceeded.) But I think Obama also realizes that investigations and prosecutions must happen eventually, both for the good of the nation and for the sake of U.S. standing in the community of nations. So he talks about moving forward and insists that he doesn’t want prosecutions, but he never quite entirely rules out future legal action: Instead, he has officially left that decision it in the hands of his Attorney General (where it belongs, incidentally) – but A.G. Eric Holder will of course not pursue anything until given the go ahead by President Obama.
Meanwhile, the torture memos are released and an al Qaeda operative (Ali al-Marri) is successfully prosecuted in ordinary Federal court without any of the unnecessary and unconstitutional measures introduced by the Bush administration to hold “enemy combatants” indefinitely without trial. (Watch Rachel Maddow’s report on the al-Marri case here. Rachel’s money quote, commenting on the successful prosecution of al-Marri without the Bush system of eternal imprisonment without charges or trial, torture, and so on: “So we end up, at the end of this – after all these years and all of these Constitutional crises one after the other provoked by this system – ending up being able to charge people and bring evidence against them as if we are a normal country under the rule of law.”)
The torture memos and the al-Marri prosecution (along with several other clues) give me the distinct impression that the Obama administration is playing a game of slowly exposing both the brutal reality and the complete ineffectiveness of the Bush administration’s illegal methods, and will keep doing so until the point where the public and the political landscape not only support, but demand investigations and prosecutions.
I don’t know what bothers me more: the manipulative and corrosive character of this political game, or the fact that the American public and U.S. elected officials are so incredibly stupid and venal that such manipulative tactics are probably necessary – and hopefully effective.
Yes, it’s an excellent comment, and is rightly spotlighted. Thanks to G and OB.
It’s been said that politics is the art of the possible, and the process is not necessarily manipulative and corrosive. It may be just a matter of patience. We will have to wait and see.
One thing that concerned me about the Philippe Sands interview – and perhaps this has much to do with possible libel actions as anything else – is the impression left that the lawyers involved were sleepwalking. This is surely just nonsense. They did not know the origin of the armed forces interrogation training?! This has got to be nonsense. Legal judgements are not based on ongoing operations in the military but on precedent, and in order to adjudge types of interrogation to be lawful a search of precedent must be conducted. To suppose that they just missed the significance of war crimes trials and international conventions is to imagine something incomprehensible, surely?
The implication of releasing relatively marginal memos, and not the instructions for those memos to be produced, is heavy with significance. Who wanted to whitewash these activities? Find the people who had already instructed torture to be carried out, and you will find out who actually ordered the ex post facto justification for already existing practices. It’s the same as the Abu Ghraib Prison abuses. A couple of low ranking NCOs are imprisoned, a general is demoted, and the real people responsible are let off scot free.
We all know where the signs point, don’t we? No wonder the Obama administration is being patient!
Eric are you taking the sleepwalking part from the interview or from the second half of my post? If the latter that is based on a NY Times article, not the Sands interview. (There’s a link but maybe you didn’t notice it.) I don’t remember Sands saying the lawyers were sleepwalking…
The Times reporters weren’t exculpating, they were saying nobody did the most minimal kind of due diligence.
Hmm…you cause me to realize I don’t actually know if the lawyers who wrote the memos knew the background or not. Did Sands say they didn’t? I don’t remember! I’ll have to listen to the interview again – unless someone informs me in the meantime.
Surely they can’t have written the memos without doing any research. What good would the memos be without research? I should know this. I should know exactly what those guys did – how they came to their whacked conclusions. (Apart of course from knowing that they found the conclusion they knew they were supposed to find – which may be all the research they did. Oh gawd. Incompetence from top to bottom and inside out – incompetence as a principle. I can’t stand it.)
I apologise, OB, I was wrong. Sands did not mention this in the NPR interview with Terry Gross. It was in her interview with Scott Shane (who also writes and contributes to some of the NYT coverage) that the question of the origins of the interrogation module of military training arose. The two interviews were placed back to back on the link to the Philippe Sands interview.
However Sands does mention that at least preliminary legal opinions that questioned the legality of the ‘interrogation techniques’ in question had already been received, in response to a query from Admiral Jane Dalton, and that the Pentagon’s general counsel, Jim Haynes, had quashed further review.
It was Scott Shane who mentions that the lawyers who wrote the judgement did not know of the origin of these techniques (which seems, on the face of it, improbable) but Jane Dalton had already heard from the army, air force, navy, etc., stating that these techniques were not legal. So it seems, in the end, that, far from failing to show due diligence, the lawyers involved were, knowingly or not, part of a larger conspiracy to cover up what was already known.
It seems hard for me to imagine lower level counsel doing this without the express request of someone much higher in the chain of command. This is no doubt why President Obama had been initially reluctant to open this can of worms, especially in view of the fact that the former VP has been so outspoken in defence of torture and its effectiveness. Effectiveness is not the issue at all, as this man, who swore to uphold the Constitution of the United States, should know. The United States is based on the rule of law, and if it gives up this very strong position, then it becomes little better than a rogue state.
So, it seems, in the end, not only incompetence from top to bottom – though there may have been some of that – but a deliberate attempt by someone to pervert the course of justice, and to subvert some of the basic principles of American democracy.
Ah yes; thanks, Eric. It was of course the TG interview that led me to the NY Times article.
The bit about the Pentagon’s general counsel quashing further review caused my jaw to drop while I was listening, I remember. In one way we already know all this; in another way the step-by-step details – a general counsel actually quashing further review – are still staggering.
Yes, indeed, draw-droppingly disturbing. What is perhaps more disturbing, though, is the fact that the different arms of the armed forces had already indicated, to Admiral (then Captain) Dalton, that such interrogation methods were illegal, so the knowledge of their illegality was already well known. Quashing further inquiry was intended to keep information about the preliminary study from leaking out, so that the legal department could then manufacture its own judgement in which these concerns did not appear. When you take it step to step it gets wider and wider. Very distressing indeed to see this level of contempt for law at such a high level of the previous administration, and in view of the VP’s continued support for the effectiveness of torture, the rot seems to have gone to a very high level indeed.
In a sense one doesn’t expect them to have had anything else – they had contempt for competence, thought, reflection, second-guessing, doubt, advice, disagreement, knowledge – they had contempt for almost all the tools they needed to do their chosen job properly; naturally they would have contempt for law too. But still the details can shock.
For instance the fact that they simply ignored all the military advice (based on long experience) that the method of establishing rapport not only avoids breaking international law, it is also far more reliable.
G: Congratulations. An excellent post.
OB: “For instance the fact that they simply ignored all the military advice (based on long experience) that the method of establishing rapport not only avoids breaking international law, it is also far more reliable.”
When I was doing my military service one part of our training had to do with how we were to treat any prisoners we took. The instructors stressed the instrumental argument: what we do to our prisoners soon gets over to the other side, and our soldiers taken prisoner by them get the same or worse. This has to be weighed against the normal assumption that the enemy is morally and culturally inferior to begin with, and the frequent assumption that he or she is physically and racially inferior as well.
So the question for interrogators easily becomes ‘what is more important: their rights or their information?’
War is also a situation in which normal human courtesy and respect – I mean between strangers – breaks down completely, as people (commonly only teenagers) go all out in an organised way to kill each other. The unfortunate reality is that, even when taken prisoner and under interrogation, a warrior is still on the battlefield. But ultimately what was is about is a contest between two sides, as each attempts to impose its rules and norms on the other. It is easy to lose sight of that, and allow expediency to triumph over principle.
Sorry, the title of Grayling’s book disappeared. Html magic! It was supposed to read: “… as AC Grayling convincingly argues in his book Among the Dead Cities.
“War is all Hell”. Atrocities WILL happen. A central concern of any civilised military apparatus ought to be (and frequently is) the restraint of its own soldiers, and any experienced combat leader will tell you that that is both necessary, and difficult; sometimes impossible. The cold recognition of that necessity – the hell that war unleashes – is one reason why the supreme international crime is that of waging aggressive war.
Is the goal of war, the successful prosecution of enemy combatants under your own civil code?
No, ChrisPer, the goal of war is not the prosecution of the enemy under one’s own civil code (or common law). The goal of war is causing enough grief to the enemy that the enemy surrenders and we can return to the state of peace. Enemy combatants, captured in the course of war, are, with the exception of those who have committed major war crimes, not indictable, and their treatment as prisoners of war is governed by international convention.
Recent events have confused the understanding of warfare that has prevailed amongst European nations and their offshoots for several centuries, an understanding that was based on the existence of nation states and alliances of nation states. Wars, aggressive or defensive, were conducted whose end was the defeat of the enemy, and the restoration of the state system that prevailed before the beginning of hostilities, with adjustments made in recognition of the victors’ war aims, and the corresponding defeat of the aims of the defeated armies.
This paradigm was very clearly enunciated at the end of the First Gulf War, when coalition troops stopped (more or less) at the border between Iraq and Kuwait. The stated aims of the war had been achieved, and an uneasy peace followed.
War, so understood, has distinguishable boundaries and purposes. September 11, 2001, changed all that. It need not have, and should not have, but it did. In response to the outrage of the use of passenger aircraft to destroy civilian targets in New York and Washington, the Americans, instead of declaring war on a country, declared war on terrorism itself. There is no simple precedent for such an ambiguous and arguably incoherent statement of war aims (although the aims of the British in Ireland over several centuries were similarly incoherent, and similarly unsuccessful).
The outcome of this was as predictably unclear as the stated aims were ambiguous, and it should come as no surprise that the achievement of the stated goals are still as far from having been achieved as they were when the so-called war began. Nor should it surprise us, given that ambiguity, that ambiguity should attach itself to enemy combatants, nor that their treatment should have become so mired in legal confusion.
The deepest problem that President Obama now has is that he seems unable to see that it is impossible to conduct a war on terror. Wars are, by their very nature, about taking and holding ground. The settlement following World War II was possible precisely because governance and control was a part of the peace. Parts of Germany are still occupied by American and British forces. If the United State is not prepared to make war with the purpose of providing continuing and stable governance in parts of the world where American troops are fighting, deferring to governments in nominal charge of the theatres of war, I would argue that there is no possibility of an outcome which will either secure the United States from further attack, or provide stability for the people who live in the areas concerned.
Britain conquered an empire because of these simple truths about the nature of war. If the Americans are not prepared to govern, or to play an integral part in the government of territories in which they are carrying out military operations, they should not, in my view, be there, and the lives that are lost will be lost for nothing.
I do hope that this is the realpolitik trajectory of Obama’s position on torture.
Eric the cold war was a war against an ideology and the war aims were often unclear also because communism was global it could be said that there were no clear national boundries either but the western free nations prevailed in that struggle?
Well, Richard, the cold war wasn’t really a war, although there were wars at the interface between the adversaries. Indeed, the paradigm example of the failed policy of using troops to prop up an unhealthy government, namely, Vietnam, is the kind of thing I was referring to.
War, as Clausewitz said, serves itself. If you go to war the point is to win. Restricting armies in the use of their power is self-destructive, and ends in pointlessly throwing away lives. If war doesn’t make a lasting change, then, whether the aims were or were not just, it is just a way of throwing lives away. Many of them were thrown away in Vietnam: American, Australian and Vietnamese. The same thing is happening in the Middle East.
I would much prefer there be no wars at all, but if we must fight wars, there is no substitute for winning. The Cheney gain thought they could win with torture, but victories must be fought for. Torture is a sign of the failure of American policy, because it shows that their armies are not controlling events, and in war this is what armies must do.