I. Understandings: Human Nature & Governance Principles
Let's be honest and clear about all this. When imminent danger threatens the American mainland and its people, it is instinctive--or, at least completely understandable--to want to pull out all the stops to protect them. And do it fast. That's exactly what President George W. Bush did immediately after 9/11. And most all of us supported him in his pursuit of al Qaida into Afghanistan--even if the remainder of his presidency was at best misinformed and misled in so many areas of national interest.
And if using extreme interrogation measures--torture, yes--to gain information thought critical to protecting the American homeland from another attack was what it might take, then we might understandably consider making an exception this time. Erring on the side of doing everything possible—torture or not-- was embraced by many people in the emotional moment of this immediate threat. And even if you don't relate to this emotion personally, you can understand it, perhaps even sympathize with it.
We might then also understand and sympathize with those in subordinate positions--even important positions--called upon to formulate the national security rationale and legal support for a policy change on torture. We might see how they would view it as their patriotic duty to support their government leaders and help make it happen. Under these circumstances, it is at the very least unfair and inappropriate to hold subordinate staff in the national security apparatus and the Justice Department criminally culpable for bringing their best skills to their duty to serve their superiors, including the heads of the CIA and Justice Department and, yes, the Vice President and President of the United States. It is after all, a legitimate issue of national security, and they should bring their best supporting arguments to the policy discussion, as they also address arguments to the contrary.
Lawyers are by training and the requirements of their codes of ethics aggressive advocates for their client-employers. Wherever there is an argument to be made on the merits, the facts or law, it is their duty to their clients-employer to make that argument and defend their interests aggressively. National security agents, in turn, must be able to depend on the rulings of the Justice Department and their agency or departmental leaders. It is not their place to be jurist or moral arbiter. That responsibility rests with those whose job it is to judge the merits of the arguments and appropriately protect the higher moral ground (see II, below). In this case, that responsibility fell to the same heads of the Justice Department and the CIA, National Security Council, and the Vice President and President of the United States of America. And, as a matter of sound policy, great latitude must be allowed in exercising those judgments.
Justice Department lawyers who did their professional duty (writing supporting opinions), however narrowly defined, and those CIA or other staff operatives or agents who in turn did theirs in effecting the policy (using approved torture techniques in interrogations) should not be punished for doing what their government and their professions expected of them. Any other approach would inappropriately, perhaps dangerously, impede the proper functioning of departmental and agency professionals in their service of both the government and the governed. It would also encourage and expand the unseemly “get-even” tendencies extant in our adversarial political party structure to the point where the first order of business for each succeeding administration would be a witch hunt for those responsible for policies they disagreed with. That approach to governing would be profoundly lacking in reason and wisdom. And it would surely weaken government's ability to function responsibly and accountably in the future.
Of course, however unsatisfying it may be, this same policy concern applies to our policy leaders as well. If government executives had to second guess every policy decision entertained based on whether they might somehow be charged with criminal culpability by a later-elected administration--an opposing political party, perhaps--government would be restrained from making difficult decisions addressing our country's most important issues and serving its best interests. This would be an untenable context for government. Excepting clear and material violations of U.S. or international law, policy decisions of senior policy makers must be immune from prosecution.
So, then, is there no recourse against our senior-most policy making executives of government? Of course not; that too would be unjust and fail to serve good and accountable government. If there is a question of violation of international law--the Geneva Convention, for example--the appropriate international authority or court has the primary responsibility of bringing forward such charges. Where timing is critical, a sitting legislature may bring articles of impeachment in appropriate cases. Otherwise, it is the duty of congress and succeeding presidential administrations to investigate serious concerns with material policy breaches of U.S. or international law by predecessor administration officials. In egregious cases, a bi-partisan commission should be empanelled to investigate and report findings--a "truth-telling" commission, if you will. Such exercises may be important to understanding and correcting institutional and individual governmental failures, and advancing reconciliation between the American people and their government. Of course, it also identifies those guilty of indiscretions, errors and harm done. And, if important to the cause of justice done, individual censure may also be appropriate. Public shame--shame as history--is punishment enough for the culpable. We shouldn't underestimate the power of the effects resulting.
II. Leadership: A Shining Beacon of Principles & Ideals?
Among the qualities we should expect in a U.S. president are those of the classic philosopher-leader and statesman. Presidents, to be sure, but vice presidents, and senior government and legislative leaders, too, should aspire to that ideal. But over the course of my lifetime--62 years--it appears to me that we have seen less and less of those qualities reflected in our presidents and leaders.
This is not a unique or profound observation; it has been noted often by many thoughtful writers over those years. And doubtless, it has been an issue of concern at various other times in US history. But seldom has it reached such a low point as it did in the eight years of the George W. Bush presidency. There were precious little of those qualities present or expressed by him, his vice president, and many in his administration. And as ideological purists and the political Religious Right combined to dominate and tightly narrow the identity of the Republican Party, the political and legislative process became partisan, polarized, and dysfunctional to the extreme--a matter of deep concern to those who observed and chronicled it all from the fewer places where wisdom resided.
The ideal of the philosopher-leader and statesman balances the exigencies and practicalities of everyday politics, economics and the national welfare--yes, including the lower expressions of populist demagoguery and political self-interest--with the need to define and protect the higher principles and ideals of enlightened humanity in community: the shining beacon on a hill, if you will. Yes, American presidents and their administrations have seldom fully realized or fully reflected those highest of ideals. But many came close, especially those founding thinkers and statesmen like Washington and Adams, those who set the foundation stones, the visionary principles and ideals. And, yes, there was Lincoln. Others would fairly suggest the presidencies of Franklin Delano Roosevelt and Theodore Roosevelt. All these presidents and others acted consistently and unambiguously to express and defend our ideals and policies condemning abuse and torture of prisoners.
But President Bush, Vice President Cheney, and their cabinet leadership left little evidence that a philosopher-leader's and statesman’s more enlightened principles found a respected voice in the decision making of their administration. Theirs was more a creature and servant of the unregulated marketplace, and therefore of large corporations and the most wealthy--but also of the narrow cultural dictates of the highly political, judgmental Religious Right, and the often xenophobic, jingoistic and bellicose nationalism reflected so often by their core constituencies.
The world was changing around them, and they couldn't understand what it meant or how to respond. Their only instinct and personal point of reference was the lowest common denominator of the simplest, black-and-white constructions, understandings, and responses to complex, interdependent cultural, economic, and geopolitical changes. They refused to talk or listen to other voices, honorable voices, who might help them--including the wiser former President G.H.W. Bush and key members of his very able cabinet.
What does it say about us that, when our people, leaders and ideals are threatened, we bow to our basest instincts and abandon the higher ground for expediency's sake? What does it say about us that we would waterboard a man 183 times in one month? I'm still stunned by the reality of it. What more could we expect to be confessed by the man the last 170 or 180 times? As civilized people, don’t we recognized this as cruel and unusual punishment in extemis? In states where capital punishment is allowed, this level of pain and suffering could not be imparted in a legal execution, however heinous the crime or deserving the criminal. These "enhanced interrogation techniques" appear as much about illegal punishment as interrogation.
Former Vice President Cheney would have us believe that justification for these "enhanced interrogation techniques" stands or falls based on their efficacy. That is, did they produce actionable, "high-value" intelligence? Somehow, the vice president missed the college class discussion on Aristotelian ethics, the discussion on means and ends. A foundation stone, a necessary consideration, in any discussion or decision making is whether the ends justify the means. If you are the US--or most other civilized Western countries--and purport to occupy, exemplify and defend the high moral ground, then honoring and protecting our principles should not be a negotiable matter. And when it came down to these circumstances and the use of torture in interrogations, our Western allies, staunchly reflecting their values, said, no. But the Bush administration abandoned our place on the hill as they compromised our ideals and identity: they said, yes.
Of course, we can talk about the efficacy of torture in interrogations, but those discussions and arguments have been repeated so many times over the decades. And the voices reflecting the honor, strength and discipline of an ascendant humanity have always concluded that torture has no place in it. Yet, that history, those ideals, and the duty to honor them somehow eluded President Bush's administration. Somehow they thought efficacy should be the determinative question. So, since it is again the subject of discussion and dispute, lets talk about efficacy.
The information gained through torture is too often unreliable. So say the real experts in the field, the most experienced professional interrogators and those who have researched the issue. It's not that you can't extract some "high value" or "actionable" information from some prisoners; it's just that it is very hard to separate what might be useful from the other information tortured prisoner may be eager to provide. Most often prisoners will say anything to stop the pain or fear of death. Sometimes what they say may be true, often it is not. The stronger subjects may lie, and lie again. Even if they do not know the answers, they will guess or fabricate answers--anything to stop the process, even if only temporarily. And more, many of the most experienced, most effective professional interrogators are confident they can gain the most reliable information, without the indignity to us and our prisoners of giving expression to our basest instincts to punish while we interrogate. We do not have to torture.
What do you say, then? Why not dust ourselves off, raise our heads and straighten ourselves again? Let's reaffirm to the world who we are and the higher values that have always been ours. Lets polish again that beacon and carry it with us back to the top of that hill where we belong.
First written: May 2009
© Gregory E. Hudson 2009
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